Senators used to vow to be impartial in impeachment trials; not McConnell

Ryan Teague Beckwith
Bloomberg News

A 221-year-old Senate impeachment oath has become a focus of partisan bickering, even before lawmakers are asked to take it – another sign of how contentious the chamber’s trial will be.

House Judiciary Chairman Jerrold Nadler and Democratic Senator Chris Coons have said Senate Majority Leader Mitch McConnell is already violating the oath by saying he’ll work closely with President Donald Trump’s lawyers.

“They have to pledge to do impartial justice,” Nadler said. “And here you have the majority leader of the Senate, in effect the foreman of the jury, saying he’s going to work hand in glove with the defense attorney.”

Senate Majority Leader Mitch McConnell of Ky.

Senators serve as jurors during the impeachment trial – expected to start early next year – though they aren’t held to the same kind of neutrality expected of courtroom jurors. Trump was impeached Wednesday when the House adopted two articles against him, and it will be up to the Senate to decide whether to remove him from office.

McConnell on Tuesday dismissed the idea that he has to be impartial.

“I’m not an impartial juror,” he told reporters. “Impeachment is a political decision. The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate.”

For their part, Republicans say Democrats have planned to impeach Trump since taking control of the House in January – well before the president asked Ukraine’s leader to investigate former Vice President Joe Biden and his son Hunter, which formed the basis of the impeachment case.

The Constitution requires senators to take a special oath or affirmation to participate in impeachment proceedings. It doesn’t specify what the oath must say, though the chamber’s practice has been to require each senator to promise “impartial justice.”

The wording of the oath was established in the first impeachment proceedings, the 1798 trial of Senator William Blount: “I, (name) solemnly swear, (or affirm, as the case may be,) that in all things appertaining to the trial of the impeachment of (name), I will do impartial justice, according to law.”

The Senate tinkered with the wording during the 1868 trial of President Andrew Johnson, changing the ending to “now pending, I will do impartial justice, according to the Constitution and laws: So help me God.”

In preparation for the impeachment of a federal judge who had been convicted of falsifying his tax returns in 1986, the Senate added another twist. The chamber added a requirement that senators also sign an impeachment oath in a special book that’s sent to the National Archives.

“The signing of the impeachment oath has added a level of formality and documentation to the process,” said Daniel Holt, an assistant historian in the Senate Historical Office.