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100929 The Senate Goes on Jury Duty

The Senate Goes on Jury Duty



Amidst the growing drama of our upcoming midterm elections, our constitutional government is quietly performing an often ignored but significant function: an impeachment trial. Although some think of impeachment only as the high-profile actions that the U.S. House took against President Johnson in 1868 and President Clinton in 1998, a student of the Constitution knows that impeachment is actually disciplinary action taken against many different types of federal officials. In our history, the U.S. House has impeached (which, in layman’s terms, would be called “indicted”) nineteen people: Johnson, Clinton, thirteen district court judges, a Supreme Court associate justice, a cabinet officer, a circuit court judge, and a U.S. senator. These impeachments trigger trials in the U.S. Senate, and they have had a variety of outcomes. Seven defendants have been found guilty of the wrongdoing alleged in the House and thus were removed from office, and six were acquitted. Four resigned prior to trial, and the Senate dismissed charges against another.


The nineteenth is pending before the Senate right now: in March, the House approved four articles of impeachment (the equivalent to counts in an indictment) against District Court Judge Thomas Porteous essentially charging him with bribery and committing fraud while filing for bankruptcy, a situation apparently resulting from a significant personal gambling problem.


All in all, this case is fairly dull, and if this was a regular criminal trial, twelve citizens would contribute a few days to be on a jury and dispose of the matter. However, since this is an impeachment trial, the entire Senate has become the rough equivalent of a jury, and that is a much more significant systemic disruption.


Is this worth it? The Senate apparently thinks not because in some recent trials, it handed most of the work over to a special committee. In the Porteous trial this month, twelve (an ironic but perhaps coincidental number) senators met to hear witnesses and approve the evidentiary record. The committee room was set up much like a court room complete with a witness stand, prosecutors, defense attorneys, cross examinations, motions, and exhibits. At least seven sometimes bored-looking senators had to be in the room at all times, and they took turns so that they could maintain their other duties as much as possible over five full days of testimony. Apparently senators dislike jury duty as much as most people since it was not a sought-after assignment (eleven of the twelve were freshman, who always draw the short end of the straw in this seniority-based body).


Given that, should we be concerned that as many as ninety-three senators were not listening to witnesses testify to the guilt or innocence of a man whose fate is in their hands? Then-District Court Judge Walter Nixon thought so when the Senate used a similar process and then found him guilty in 1989. He appealed the decision to the U.S. Supreme Court, claiming that all proceedings of his trial should have been heard before the entire Senate to be legitimate. (The Court ultimately ruled against him on the grounds that the Senate acted within its discretion.) However, should we share that concern, or is it bad governance to shut down the Senate every time a district court judge (of whom there are several hundred) commits a crime?


When the Constitution was written, the federal government was a much slower place. There were fewer officials subject to impeachment; the Senate itself was much smaller; and, frankly, the government did a lot fewer things. Today, putting the Senate on jury duty seems inherently disproportionate. This is especially true when one remembers that an impeachment trial only strips the defendant of office. It still takes a regular criminal trial to impose a fine or imprisonment.


The sometimes brazenness of this redundancy was on full display last year during the impeachment of then-District Court Judge Samuel Kent. He had already pled guilty to charges related to sexual misconduct toward court staff and was on the brink of being imprisoned. However, because only an impeachment trial could remove him from office and he was otherwise unwilling to resign immediately, the House had to impeach him because, unsurprisingly, it felt that people should not be simultaneously on the bench and in prison.

This raises an important question: why have two trials at all? Why not just empower the regular criminal court to remove the person from office? It is an intriguing concept, and one that some of the twelve senators might have contemplated as they sat there.


The idea raises two questions. The first is relatively easy: should a public official convicted of a felony ever not be removed from office? The answer would seem to be a fairly safe No. The converse, though, is tougher: should a public official ever be removed from office even when not convicted of anything in regular court? This was the case for President Clinton, which in part damaged the prosecution in his trial and contributed to his acquittal. There is a general principle here: impeaching someone in the absence of other legitimate proceedings will inherently seem political and could damage the process, and politically-motivated impeachment has never been a healthy experience for the country. Thus, requiring a neutral benchmark like conviction in regular court might be an improvement.


Going forward, we should consider the pros and cons of this. Perhaps we should transfer judicial action to the judicial branch. The Senate will likely have time to consider that possibility as it sits on jury duty.