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Senators, keep your oaths ('so help you God')

On the divisive question of President Donald TrumpDonald TrumpMcCarthy says he told Rep. Marjorie Taylor Greene he disagreed with her impeachment articles against Biden Biden, Trudeau agree to meet next month Trump planned to oust acting AG to overturn Georgia election results: report MORE’s Senate trial and whether it should or shouldn’t lead to his removal from office, it is important to remember something we risk forgetting: the oaths that senators take.

Americans generally understand that every senator swears to uphold the Constitution, which states, “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4). Determining if such abuses of office took place are among the weightiest decisions senators make.

But what’s much less well known is that to try an impeachment, every senator must also take a second oath of impartiality. The Constitution stipulates that senators, when sitting on a trial of impeachment, “shall be on Oath or Affirmation” (Article III, section 3, clause 6). That oath is more specific than the general one to uphold the Constitution. Rule XXV of the Senate Rules in Impeachment Trials provides the text: “I solemnly swear (or affirm) that in all things appertaining to the trial of [in this case, Donald J. Trump] now pending, I will do impartial justice according to the Constitution and laws, so help me God.” 

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For members of the House of Representatives, it’s different. Conducting a House investigation and preparing and voting on articles of impeachment do not require an oath of impartiality, so House members are not sworn to that obligation. That’s because the House’s role in impeachment is akin to a grand jury’s, determining whether grounds exist, framing the charges and forwarding them to the Senate. They’re allowed to bring their own opinions and points of view, and those of their constituents, to bear on how they vote.

Not so in the Senate. Its role is akin to a judge’s: to rule objectively whether or not the evidence proves the charges and merits the president’s removal.

That requires senators to set aside partisanship, evaluate the evidence fairly and impartially, and follow it wherever it leads, whether to conviction or acquittal.

These are not theoretical, ceremonial flourishes; they are sworn, binding obligations. Yet we hear a lot of casual derision of the impeachment process, which really derides senators’ duty to uphold the Constitution, their first oath. We usually assume most will vote in the trial according to their political leaning, whether left or right, not according to an impartial assessment of the evidence. That would be a violation of their second oath.

The Senate has a Constitutional duty to hold a trial once the House votes on articles of impeachment and presents them to the Senate. The House has prepared the articles but not yet moved them to the Senate, because it lacks confidence that senators will uphold their oaths.

There is ample reason for that.

Senate leaders have stated openly they will coordinate with the accused to ensure a favorable outcome.

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Some senators are attempting to block the right to call witnesses and present evidence. Yet giving evidence, under oath and pursuant to strict rules, is vital to revealing “the truth, the whole truth, and nothing but the truth.”

Blocking evidence and witnesses is all the more egregious in this case, since one of the articles of impeachment relates to obstructing Congress’s investigation by withholding documents and preventing relevant witnesses from testifying. It not only cynically disregards the most basic principles of due process, it also shows partiality, which violates the senators’ oath. Knowingly disregarding it and deciding the matter before evidence is presented corrodes the rule of law, on which the stability of the United States rests.

Senators need to build confidence and demonstrate some respect for their oaths.

It’s time to take some steps to ensure the minimum standard necessary for a fair trial. All parties — both Donald Trump and the House of Representatives — must be allowed to present witnesses and evidence. That’s indispensable to reaching an impartial verdict, informing the public, and restoring faith in the legitimacy of this process and our institutions. Senators who proclaim they have prejudged the outcome will not serve as impartial jurors and should be recused from the trial.

That includes Sens. Elizabeth WarrenElizabeth WarrenOVERNIGHT ENERGY: Biden's Interior Department temporarily blocks new drilling on public lands | Group of GOP senators seeks to block Biden moves on Paris, Keystone | Judge grants preliminary approval for 0M Flint water crisis settlement Senate approves waiver for Biden's Pentagon nominee House approves waiver for Biden's Pentagon nominee MORE (D-Mass.), Mitch McConnellAddison (Mitch) Mitchell McConnellTrump impeachment trial to begin week of Feb. 8 Democrats float 14th Amendment to bar Trump from office Biden signals he's willing to delay Trump trial MORE (R-Ky.) and Lindsey GrahamLindsey Olin GrahamTrump selects South Carolina lawyer for impeachment trial Democrats formally elect Harrison as new DNC chair McConnell proposes postponing impeachment trial until February MORE (R-S.C.).

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"I think the evidence is clear," said Warren, indicating she had already seen enough — even before any evidence is presented in the Senate trial — to convict Trump.

"Everything I do during this, I'm coordinating with White House counsel," said McConnell. "We all know how it's going to end. There is no chance the president is going to be removed from office." He also said, "I'm not impartial about this at all." 

Graham said, "I have made up my mind … I’m not trying to pretend to be a fair juror here.”

How can senators swear the impartiality oath required to take part in the trial when they've prejudged the case and already declared their decision? 

But the senators’ oaths matter. The oaths are part of the contract between those who govern and those who are governed. Pacta sunt servanda ("promises must be kept") is a fundamental tenet of contracts, the rule of law, and civilization itself. If compromised or flouted, the bonds of order are severed.

Oaths are also contracts involving a solemn pledge before the Almighty: “so help me God.”

Breaking a promise is abhorrent. Knowingly breaking an oath is sinful. Senators who violate their oaths in the impeachment trial now may face a higher tribunal later.

Jonathan Granoff is president of the Global Security Institute, and United Nations Representative to the World Summits of Nobel Peace Laureates. He chairs the Task Force on Nuclear Nonproliferation of the International Law Section of the American Bar Association, and he is a fellow of the World Academy of Arts and Science. He has testified as an expert before the U.S. Congress, the United Nations, Canadian Parliament and U.K. Parliament. He was nominated for the Nobel Peace Prize in 2014.

Michael L. Prigoff is the managing attorney of Lebson & Prigoff, LLC. He is a former Governor of the American Bar Association and a member of its House of Delegates, and has also served as President of the New Jersey State Bar Foundation, Chairman of the New Jersey Institute for Continuing Legal Education and as a Trustee of the New Jersey State Bar Association. Follow him on Twitter @MichaelPrigoff.