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Should President Trump receive a fair trial? Mitch McConnell, meet Alexander Hamilton

As the Senate prepares to conduct the impeachment trial of President Trump, its majority leader, Mitch McConnellAddison (Mitch) Mitchell McConnellBiden backs 0B compromise coronavirus stimulus bill US records over 14 million coronavirus cases On The Money: COVID-19 relief picks up steam as McConnell, Pelosi hold talks | Slowing job growth raises fears of double-dip recession | Biden officially announces Brian Deese as top economic adviser MORE (R-Ky.), has made it clear that he sees the event as purely an exercise in partisan politics. If McConnell can keep all other Republican senators in line behind him, the trial will not be a genuine tribunal that aims to determine, by impartial weighing of evidence, whether the president is guilty of charges brought against him by the House of Representatives.   

“I’m not an impartial juror,” McConnell declared, dismissing Democratic demands for an actual trial, its fairness secured by due process, including hearing testimony from relevant witnesses. In fact, the senator announced publicly that his efforts related to the trial would be coordinated with the White House, in effect allowing the administration to decide the rules under which Trump is tried. 

But, given that no judicial proceeding could be of greater consequence to a democracy than an impeachment trial of its chief executive, don’t the American people deserve a trial that is manifestly fair — to the president and to the public? For it is the public, the House has concluded, who has been harmed by the president’s actions and whose trust he has betrayed. Thus, when senators take on the role of jurors in this impeachment trial, they do not represent only their constituents or even their party but the entire country.

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Evidently, the majority leader does not believe that he owes it to all Americans to be an impartial juror and to ensure that Trump’s impeachment trial – of all trials – is an exemplar of judicial fairness. He thus fails to acknowledge a fundamental truth that he himself surely accepts — that the very idea of a trial whose jurors are biased is utterly antithetical to the rule of law, a cornerstone of our democracy. 

If any Senate Republicans harbor doubts about McConnell’s position, then, recalling their oath to “support and defend the Constitution,” they must ask themselves: Did the framers of the Constitution intend senators to be impartial jurors in impeachment trials? (The Constitution itself stipulates only that, when sitting as impeachment jurors, senators “shall be on oath or affirmation.”) They should be sobered by the fact that Alexander Hamilton, one of the Constitution’s most eloquent and astute defenders, believed firmly that the answer is yes. Indeed, he maintained that the Constitution provides that impeachment trials should be conducted by the Senate because the Senate is more likely to be impartial than any other government body.   

Hamilton had been a delegate to the Constitutional Convention in 1787 and, with James Madison and John Jay, authored the Federalist Papers, the classic exposition and defense of the Constitution written to promote its ratification by New York state. He regarded the subject of impeachment trials as of such importance that he devoted two of his Federalist essays to it. In No. 65, he explained that such trials are concerned with “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” 

These are trials whose defendants are public officials accused of misconduct as public officials where conviction entails removal from office. Such offenses, Hamilton writes, “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.” Inasmuch as the public has entrusted the official with power and resources for the purpose of serving the common good, it is the public who is victimized when the official violates his or her duties.

Hamilton was well aware that impeachment generally brings conflict — often bitter conflict: “The prosecution of [such offenses], for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.” Presciently, he worried about impeachment processes becoming political power struggles rather than honest attempts to determine the truth of the charges: “In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.”       

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When McConnell approaches Trump’s impeachment trial as an occasion to flex his party’s superior “comparative strength” to win a political battle, does he not confirm Hamilton’s fears, realizing what the latter foresaw as “the greatest danger” to the constitutional process of impeachment?

Since some institution must be entrusted with the responsibility for impeachment trials, Hamilton writes, “The [constitutional] convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing will be the least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.” In Hamilton’s view, the framers of the Constitution felt that, among the organs of government, it is the Senate that can most be trusted to assure the fairness of impeachment trials.

Hamilton himself shared the Founders’ faith in the independence and impartiality of the upper chamber of Congress. How would Sen. McConnell and his Republican colleagues respond to Hamilton’s implicit trust in their institution? What would they say to him? What would Hamilton say to them?

Dana Radcliffe teaches ethics at Cornell’s SC Johnson College of Business and Syracuse University’s Maxwell School of Citizenship & Public Affairs.