It is the one unbreakable rule in litigation. You can insult the defendant or the opposing attorney and, on occasion, you might even insult the judge. But the one thing you can never do is insult the jury. That is only if you want to win a jury verdict, and that may be why both legal teams in the impeachment trial of President TrumpDonald TrumpDeputy AG: DOJ investigating fake Trump electors Former Boston Red Sox star David Ortiz elected to Baseball Hall of Fame Overnight Health Care — Senators unveil pandemic prep overhaul MORE seem more eager to get the goats of Senate jurors rather than their votes. Both sides seem to be striving for the constitutional equivalent of a hung jury, not enough votes for either a bipartisan acquittal or conviction, simply the status quo. What is different is that you usually do not actually hang the jury in a hung jury strategy.
The most riveting example this week was the argument of House Judiciary Committee Chairman Jerrold Nadler, who stood in the well of the Senate and appeared to accuse Republican senators of a conspiracy to “cover up” the wrongdoing of the president. It was a moment that produced an audible gasp from the room, along with a note from Senator Susan Collins complaining to Chief Justice John Roberts, who then promptly declared that “those addressing the Senate should remember where they are.”
The aspersions from Nadler alienated at least two of the four Republican senators that House impeachment managers are struggling to win over in their fight to call witnesses. In addition to Collins, Senator Lisa Murkowski was irate and denounced the comments by Nadler as soon as she walked off the floor. Murkowski later expressed skepticism about helping House managers to call witnesses they did not seek to compel during their own investigations. That is what happens when a prosecutor incorporates the jury into the list of accomplices in an ongoing conspiracy during trial.
House manager Adam Schiff produced further gasps when he repeated reports that the senators were warned that if they vote against Trump their heads “will be on a pike.” Collins and Murkowski were among those angrily responding to the “unnecessary” remarks. Other senators have had their own awkward moments. The House managers played a clip of Senator Lindsay Graham from the Clinton impeachment trial declaring, “What is a high crime? It does not even have to be a crime. It is just when you start using your office and you are acting in a way that hurts people, you have committed a high crime.” That statement of a hurtful standard for impeachment was meant to embarrass Graham. It certainly worked.
For its part, the White House could not get enough of old clips of Senator Charles Schumer promising to vote for acquittal before the Clinton trial was even scheduled. Schumer also opposed any witnesses or a full trial in the Clinton impeachment. It is clear that neither side seems to want the soul searching and unpredictable verdict of the classic movie “12 Angry Men.” Both teams want the status quo pushed by 100 angry senators.
With such attacks expected to increase, it is unsurprising that the Senate ordered that no cameras could show members listening to deliberations. The most relieved by the blackout may be Senator Robert Menendez, who was prosecuted more than two years ago by the Justice Department for alleged use of his public office for personal gain. Sound at all familiar?
The difference is that Menendez was given lucrative gifts by a campaign donor, and the donor received specific acts of support from Menendez. As the House managers described the horror of a public official using official powers to benefit himself, Menendez sat ready to convict Trump for the same charge he once faced in an actual criminal prosecution. The charges against Menendez were dropped after a mistrial due to a Supreme Court decision narrowing the definition of bribery in public corruption cases.
With the White House now taking over the Senate trial, the focus on the jury is likely to continue. Murkowski, who is being courted by both sides, could again find herself aggrieved by an argument from counsel if, as widely expected, the White House frames its case around an essentially discredited theory that an impeachment requires a criminal allegation.
In both the Clinton and Trump impeachment inquiries, I addressed that theory as historically and constitutionally unsupportable. Yet Harvard law professor emeritus Alan Dershowitz will make the argument as the core of the defense. It is a rather baffling decision given not only the rejection of the theory by Attorney General William Barr but also by the Democratic senators and many Republican senators. The White House is therefore making an argument that the vast majority of senators have rejected, including the Republican senators who are coming forward this week.
As an Alaskan, Murkowski may find one part of the Dershowitz argument particularly grating. In his book nearly two years ago, “The Case Against Impeaching Trump,” Dershowitz wrote, “Assume Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution.” Perhaps not the best case to sway her.
Why would these two legal teams pick arguments that insult senators? It is because neither side actually seems to be trying to change minds on the jury. The House managers declared Trump a “dictator” who won in 2016 with Russian assistance. It is a narrative that no Republican senator could embrace, but it is a case that plays well to audiences on mainstream cable networks. Conversely, claiming that everything Trump did is “perfect” is simply the type of narrative that few Democratic senators could adopt.
Ultimately, neither side seems to be trying to secure a bipartisan verdict. The senators are not just off screen. They are largely irrelevant to the trial strategies of both sides. Of course, mocking a jury has historically been a dubious strategy. Socrates famously ridiculed his jury and joked that his punishment should be free dinners for life. Instead, the irate jury ordered him to drink poisonous hemlock. My how things have changed. Indeed, this gives a new meaning to the Socratic technique in insulting the jury, leaving senators to drink their milk as they are made farcical exhibits by the two legal teams. It seems that what Socrates lacked was the Senate.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.