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On Traditional Perjury and Repudiation of Impartial Justice by esteemed U.S. Senators





The PRESIDENT pro tempore. Will you place your left hand on the Bible, and raise your right hand.



Do you solemnly swear that in all things appertaining to the trial of the impeachment of William Jefferson Clinton, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?



The CHIEF JUSTICE. I do.



At this time I will administer the oath to all Senators in the Chamber in conformance with Article I, section 3, clause 6, of the Constitution and the Senate's impeachment rules.



Will all Senators now stand and raise your right hand.



Do you solemnly swear that in all things appertaining to the trial of the impeachment of William Jefferson Clinton, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?



SENATORS. I do.



The CHIEF JUSTICE. The clerk will call the names and record the responses.



The legislative clerk called the roll, and the Senators present answered `I do' and signed the Official Oath Book.









  





-Y-











We might expect Senators to render impartial justice and render that justice according to some sort of uniform law during impeachment trials, even though they are not, technically speaking, jurors.



Senator Tom Harkin, during the impeachment trial of President Clinton, moved that the House Managers be barred from referring to the senators as "jurors." He argued that the senators' actions were "exculpatory." Chief Justice Rehnquist, presiding, agreed.



Of course the senator meant that senators should be without formal guilt or blame even if their verdict is contrary to the evidence presented to them at trial. President Clinton was obviously guilty of lying under oath, an indictable felony under criminal law, as well as, at least according to the House of Representatives, an impeachable offense that should result in removal from office if proved before the Senate.



If a man were acquitted of the charge of murder by jurors who believed that the facts proved the man guilty beyond a reasonable doubt, the verdict might hold yet the presiding judge would hardly say that the misconduct was exculpatory - in fact such conduct (jury nullification) is contrary to express instructions setting forth the duties of jurors. We are left to suppose that an impeachment case is not a criminal or a quasi-criminal case but is a political case and therefore subject to the vagaries of partisan prejudice instead of the security of impartial justice according to uniform law. For if some of the senators who sat as judges/jurors in impeachment cases had been judges or jurors in criminal cases, truly bound by oath do impartial justice under the law in the sense arrived at by decades of constant judicial criticism and discipline, many of them would have been held in contempt and removed from bench or panel given their conduct.



For instance, Senator Tom Harkin, before the evidence was presented to the Senate and the arguments were made at trial, proclaimed that the charges against President Clinton to be "a pile of dung." And, among other things, Senator Harkin stepped out of a closed session during the trial and gave the media a public reading of a statement he had made before the Senate. That statement, broadcasted on several cable TV channels, denounced the Starr investigation and House impeachment vote as a "political vendetta" and called the House managers' case against Clinton "counterfeit."



Tom Harkin, to say the least, was not impartial, and he obviously did not believe he was bound to do impartial justice under law except to the extent that he interpreted impeachment law as giving him and his colleagues arbitrary power to decide the fate of impeached officers.



We have precedents dissenting from that view. Senator John Quincy Adams participated in the impeachment trial of Revolutionary hero and Federalist Judge Samuel Chase, who was acquitted because it was determined that he was not guilty of an impeachable offense, thus identifying criminal indictments with political impeachments. Judge Chase had been much too keen on prosecuting the Alien and Sedition laws according to his arbitrary intepretation of English common law; and he liked to spout off from the bench against Jefferson's 'Jacobin' faction. Senator Adams, unlike several other senators, believed that as a senator he was as ethically reponsible and as bound by customary legal procedure as a judge. He certainly would not call an undecided case before him a "pile of dung." What he did say in that case was very little: "I feel the obligation of absolute silence upon pen and tongue."



John Quincy Adams was involved in an prior impeachment trial, that of Federalist Judge John Pickering. In that trial Senator Adams dissented against conduct we recently observed in the impeachment of President Clinton: Senator Charles E. Schumer was a U.S. representative before becoming a senator and participating in the impeachment trial - he voted for acquittal. In fact, Schumer sat on the House impeachment committee - a sort of political grand jury - that had inquired into the Clinton affair. 'Grand Juror' Schumer opposed the impeachment; the articles were brought before the House, nevertheless, and the House voted to impeach the president. Then Schumer changed hats - to Senator -  and sat as a judge/juror at the impeachment trial. One might think that such conduct although constitutional might be reprehensible. We can be certain that defendants in criminal trials would like their defense lawyers to be their grand jurors and judges. But let's turn to precendent:



At the outset of the impeachment trial of Judge John Pickering, certain distinguished senators actually believed that in cases of impeachment they were faced with a high judicial mission instead of an opportunity to participate in a partisan political farce. Thomas Jefferson's Republicans were using impeachment as a tool to remove Federalist judges from the bench. Still, President Jefferson had a good nonpartisan reason for bringing the Pickering matter to the House on February 3, 1803: the poor judge was insane. Yes, he had used profane language on the bench, he had cussed out the Republicans, he had been drunk in court, but up to the time of his mental collapse he had performed tolerably well and his character, said his friends and acquaintances, was exemplary. His attendance had been somewhat irregular while on the federal circuit court: he had an irrational phobia of crossing rivers and had isolated himself from time to time; but once on the district court he was reliable enough. After his nervous breakdown, a circuit judge filled in for him in federal district court; but when the Jefferson administration abolished the federal circuit court, Judge Pickering had to return to his duties; alas, he was incompetent to the task. The House Republicans rushed to impeachment with contumacious articles charging Pickering with "loose morals and intemperate habits" and "conduct disgraceful to his own character as judge and degrading to the honor and dignity of the United States."



Judge Pickering did not answer a summons to appear at the Senate impeachment trial. The judge was insane, someone argued, hence it would be impossible to convict him. The Republicans, however, proceeded to try the defendant on the basis of the one-sided evidence on hand. During the course of the trial, Senator John Quincy Adams brought a motion to exclude from the trial those senators who had served as representatives in the impeachment proceedings below.



"It is improper and very indelicate that judges who have given an opinion in a particular case should afterwards sit in judgement in that case," said Senator Adams. A rebuttal was offered and accepted, that the Senate is not a jury in impeachment cases. The trial proceeded, whereupon Senator White denounced the entire proceedings as a "Mock-trial."



Senator Nichols indignantly responded, "Order! Order! Order! I will not submit to our proceedings called by the degrading name of a Mock-trial."



Senator Adams then insisted that he would speak out against the proceedings "until my mouth is stopped force."



"I did say," retorted Senator White, "and I again repeat it, our proceedings upon this impeachment are not evidence of a regular trial - they are wholly unlike it - a mere mock trial. If the gentleman (Senator Nicholas) is offended... I am willing and ready to give him satisfaction at any time and place he will please to name...."



Judge John Pickering, unfairly disgraced by the exercise of partial justice under the law, was removed from the bench by the Senate on March 12, 1804. He died shortly thereafter.