Early in that 1999 trial, I rose on the Senate floor to raise an objection to House members referring to me and my fellow senators as “jurors.” I felt it vital that the role of senators sitting in impeachment be fully understood and based on the Constitution, and not defined by labels being used by the press or by ill-informed House members. Rehnquist upheld my objection, saying, “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.”
Making that motion was not a step I took lightly. I believed it was vital to the matter at hand, as I believe it is vital to the matter at hand today. As I said at the time, “The repeated use of that word" — juror — "brought it home to me that the House managers meant to leave the impression with us and with the public that that solely is the role” of senators. “I felt at that point I had to object.”
So, what’s the difference? Consider Article III of the Constitution, which states, “The trial of all crimes, except in cases of impeachment, shall be by jury.” Clearly the Framers did not consider the Senate sitting in trial on impeachment as a “jury.”
Consider also that jurors in a criminal trial cannot ask questions, cannot raise objections and cannot discuss the case outside the jury box with the press or interested parties; jurors only try the facts as presented. And in most cases, they cannot impose a sentence — that is left to the judge.
Senators sitting in impeachment, however, can ask questions, raise objections (as I did) and discuss the case with members of the press or anyone else. Senators can take into account more than just the facts presented by the House. And, if the subject of impeachment is convicted, they do impose a sentence — which, in the case of impeachment, means removal from office.
So the Rehnquist ruling is clear: The Senate sitting in impeachment is a court — a court composed of 100 judges, not 100 jurors. As judges, they have to make decisions on a wide range of issues — the facts, the public good, how the actions taken by the president impact our democracy, fairness, history, proportionality and the Constitution.
Rehnquist’s ruling in 1999 is fundamental to how the Senate trial should be conducted and viewed in 2020. There are facts, and they are important, to be sure, but there also are issues that go to the very core of our democracy.
The central question I believe the Senate judges need to consider is not only is it lawful, but is it also acceptable to invite, to encourage, to condone and even to try to force a foreign intervention in our elections? Have the actions of the president caused injury to our country? Sitting as a court of judges, the Senate can take into account the surrounding issues and presidential actions that gave rise to the facts presented by the House. Then the Senate must decide whether these issues and actions have done serious harm to the public — whether they set a dangerous precedent for the future of our government sufficient to warrant his removal from office.
I beg our citizens, the press, members of the House, and yes, even senators, to quit erroneously referring to senators as “jurors” in the upcoming impeachment trial of President Trump.