December 18, 2019 | Reading Time: 4 minutes
If a Republican Double Oath Is Just Politics, Anything Is Permissible
The Constitution is law. Impeachment is law.
Today is the day the full House debates two articles of impeachment before voting on them. Already, the Washington press corps is asking what impact the vote might have on the 2020 presidential election. My take? Now’s not the time for that question.
For one thing, the election is still far away. For another, we can’t know until we get there. So everything written and said between now and then is speculation. It is speculation, however, that has immeasurable impact on what eventually transpires. Put another way, the press corps, in asking the question, manufactures an outcome.
The framers weren’t that dumb.
Now’s not the time for that question because now’s not about normal politics. Once Donald Trump is indicted, he will stand accused of abusing his power to defraud the American people of their right to informed consent to his governance. He will stand accused of mounting the greatest effort to obstruct justice in American history. He will stand accused of violating his oath of office and perverting the Constitution.
Attempts to speculate about the impact impeachment will have on the next election are attempts to minimize the seriousness of what’s happening. That, of course, is precisely how the Senate Republicans hope the Washington press corps spends its time: overlooking the gravity of the moment in favor of normal partisan politics.
With the press corps speculating, it doesn’t seem unseemly to amplify the naturally partisan aspects of the impeachment process. Mitch McConnell, the Senate Majority Leader, is confident he can work openly with the president’s attorneys without raising suspicion of a rigged Senate trial. Lindsey Graham, the chairman of the Senate Judiciary Committee, which will handle the impeachment trial, believes he can end it without calling a single witness. Both men stand ready and willing to violate their oath to “do impartial justice according to the Constitution and laws: So help me God.”
Now, no one expects 100 Senators to be truly impartial. I don’t think the framers were that dumb. It is, however, important to say one is acting impartially. To say one is acting impartially is to behave in accordance with a constitutional standard of conduct. For impeachment trials, the framers required a special oath in which Senators vow to “do impartial justice according to the Constitution and laws.” That’s in addition to the regular oath of office all Senators swear to. That an impeachment trial requires a double oath tells us how important it is to appear to maintain the highest standard.
So even if 53 Republican Senators have in fact already made up their minds, they should not, as Lindsey Graham did, say publicly that he’s already made up his mind. Even if a Republican Senator is not in fact an impartial juror, he should not, as Mitch McConnell did, say publicly that’s he not an impartial juror. On the contrary, both men should push their colleagues toward a fair, thorough and complete trial. They should allow House managers to call witnesses. They should allow Trump’s counsel to cross-examine. They should enter into evidence what the House found. They should do what the Democrats did: maintain at least the appearance of a constitutional standard.
If nothing matters but power, corruption can flourish out in the open.
The Democrats have had some success in accusing McConnell, Graham and the rest of violating their oath to do impartial justice. But little has been said about the other way they are planning to break their promise. They are supposed to do impartial justice according to the Constitution and laws. This part of the oath stands in direct conflict with the Republican effort to spin the impeachment process as just more partisan politics. This part of the oath stands in direct conflict with the press corps’ horse-race reporting. An impeachment trial is indeed the ultimate political remedy for a criminal president. But it is not random. It is not unchained. An impeachment trial is bound to the Constitution and laws, because the US Constitution is law. It is the highest law.
Impeachment is law.
An oath is law.
A purely political process would not be what we saw in the House. What we saw in the House was orderly, deliberate, transparent and lawful. A purely political process would be what the Senate Republicans are preparing to present to us, a process in which rules of evidence don’t matter, in which standards of conduct don’t matter, in which burdens of proof don’t matter, in which nothing really matters but power. It’s no wonder when you think about it that Rudy Giuliani has been saying publicly and loudly to anyone who will listen that the president approves of his going to Ukraine to dig up more dirt on the Democrats. If nothing matters but power, corruption can flourish out in the open.
If an oath is political, anything is permissible.
Alas, the Washington press corps is not having this discussion. It’s too hard. It’s easier, and more profitable, to wonder how impeachment will affect 2020. It’s speculation, but it is not benign. In asking the question, the press in fact manufactures an outcome.
An outcome favorable to the Republicans.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.