THE IMPEACHMENT TRIAL
Jan. 15: Sen. Harkin's Objection
From the Congressional Record
Mr. HARKIN addressed the Chair.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. HARKIN. Mr. Chief Justice, I object to the use and the continued use of the word 'jurors' when referring to the Senate sitting as triers in a trial of the impeachment of the President of the United States.
Mr. Chief Justice, I base my objection on the following:
First, article I, section 3, of the Constitution says the Senate shall have the sole power to try all impeachments--not the courts, but the Senate.
Article III of the Constitution says the trial of all crimes, except in the cases of impeachment, shall be by jury--a tremendous exculpatory clause when it comes to impeachments.
Next, Mr. Chief Justice, I base my objection on the writings in 'The Federalist Papers,' especially No. 65 by Alexander Hamilton, in which he is outlining the reasons why the framers of the Constitution gave the Senate the sole power to try impeachments. I won't read it all, but I will read this pertinent sentence:
There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it.
Next, Mr. Chief Justice, I base my objection on the 26 rules of the Senate, adopted by the Senate, governing impeachments. Nowhere in any of those 26 rules is the word 'juror' or 'jury' ever used.
Next, Mr. Chief Justice, I base my objection on the tremendous differences between regular jurors and Senators sitting as triers of an impeachment. Regular jurors, of course, are chosen, to the maximum extent possible, with no knowledge of the case. Not so when we try impeachments. Regular jurors are not supposed to know each other. Not so here. Regular jurors cannot overrule the judge. Not so here. Regular jurors do not decide what evidence should be heard, the standards of evidence, nor do they decide what witnesses shall be called. Not so here. Regular jurors do not decide when a trial is to be ended. Not so here.
Now, Mr. Chief Justice, it may seem a small point, but I think a very important point. I think the framers of the Constitution meant us, the Senate, to be something other than a jury and not jurors. What we do here today does not just decide the fate of one man. Since the Senate sits on impeachment so rarely, and even more rarely on the impeachment of a President of the United States, what we do here sets precedence. Future generations will look back on this trial not just to find out what happened, but to try to decide what principles governed our actions. To leave the impression for future generations that we somehow are jurors and acting as a jury----
Mr. GREGG. Mr. Chief Justice, I call for the regular order and I ask, as a parliamentary point, whether it is appropriate to argue what I understand is a statement as to the proper reference relative to Members of the Senate. This is not a motion, and if it is a motion, it is nondebatable, as I understand it.
The CHIEF JUSTICE. Yes. I think you may state your objection, certainly, but not argue. The Chair is of the view that you may state the objection and some reason for it, but not argue it on ad infinitum.
Mr. HARKIN. Mr. Chief Justice, I was stating the reason because of the precedents that we set, and I do not believe it would be a valid precedent to leave future generations that we would be looked upon merely as jurors, but something other than being a juror. That is why I raise the objection.
The CHIEF JUSTICE. The Chair is of the view that the objection of the Senator from Iowa is well taken, that the Senate is not simply a jury; it is a court in this case. Therefore, counsel should refrain from referring to the Senators as jurors.
Mr. HARKIN. I thank the Chair.
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