Any competent criminal trial lawyer will tell you that, typically, a trial is won at jury selection. Right then and there, when voir dire is completed, the attorney can tell whether the jurors selected will have the capacity for sympathy, maybe even empathy, for the client. He or she will know whether the jurors will be sufficiently “unbiased” to fairly assess the case and the defendant’s innocence or guilt.
The prosecutor will likewise recognize if her case can overcome the popularity of the defendant in his hometown. Or whether the racial or ethnic makeup of the jurors who may identify with the particular defendant will overwhelm their ability (or even willingness) to be fair to the prosecution. And by how the jurors react to questions, she will have a good level of confidence in her ability to win the case.
For sure, jurors will reflexively say, before taking their oath, that they will make their decision based upon the facts and the judge’s explanation of the law. And while we know that jurors don’t always carry out that promise, the system is built on the fundamental principle that jurors will, indeed, diligently try to adhere to their oaths.
Turn now to the upcoming Senate trial of President Donald Trump on his impeachment. Put aside the rest of the Republican majority, Majority Leader Mitch McConnell (R-Ky.) makes no bones about it—he’s actually coordinating the “trial” with the White House, having already decided that the impeachment of the president was a “sham.”
Can McConnell possibly be fair and unbiased when he votes? Can Sen. Lindsay Graham (R-S.C.), chair of the Senate Judiciary Committee, who wants to hear no evidence, be fair? Or Minority Leader Chuck Schumer (D-N.Y.), the attack dog for the Democrats? And what about the Democrat Senators?
Sens. Kamala Harris (D-Calif.), Cory Booker (D-N.J.), Amy Klobuchar (D-Minn.), Elizabeth Warren (D-Mass.), Bernie Sanders (D-Vt.), and Michael Bennett (D-Colo.) have all run for their party’s nomination, unequivocally telling the nation’s electorate that the president should be removed from office. Can they possibly be fair and unbiased? Not to mention virtually all of the other senators on both sides of the divide.
Dismissed for Cause
If the impeachment trial were taking place instead in a courtroom with a jury composed of these senators, any lawyer worth their salt would ask the judge to dismiss “for cause” virtually every senator on the other side. Meaning, no potential juror/senator could possibly carry out his or her oath to be fair and impartial given their acknowledged prejudgment of the case—for or against the president.
With only a very small minority of senators having remained mute about their position on their upcoming vote, a judge would, literally, be required to dismiss for cause virtually every potential juror.
Still, no “juror” in this so-called impeachment trial will actually be disqualified, despite their taking the 221-year old oath—“to do impartial justice according to the Constitution and laws.” Given that specific requirement of “impartiality,” the oath taken by virtually every senator will be false, whether or not he or she has spoken publicly to the issue.
Indeed, just like the rest of us, each senator has actually heard during the House Intelligence Committee public hearings all the available evidence on which a decision will be made—especially inasmuch as the remaining White House witnesses sought by the Democrats will likely not testify at all.
But here’s the real thing. True, the oath taken by trial jurors is occasionally compromised by jurors who “nullify” their verdicts. What does that mean? It means that jurors sometimes decide, for one reason or another, that they will simply not follow the law as given by the judge. They might, instead, determine that the law, once dispensed by the judge and applied to the facts presented, is flatly wrongheaded, and therefore they acquit.
Think three-strike drug laws. Think O.J. Simpson. Sure, some Simpson jurors may have acquitted Simpson on the merits simply because, as they saw it, the prosecution failed to prove its case. Others likely engaged in “jury nullification.”
That is, despite the evidence against Simpson, the outright racism exhibited by one particular detective buried the prosecution in reminding them of police misconduct in their own communities or personal experience. Basically, they said, perhaps only in the deep recesses of their minds, “We don’t care what the evidence is. Now having seen this misconduct so vividly, we’ll use this opportunity to make a public statement that will deter its repetition by other rogue police officers.” Many experts argue that such nullification is actually lawless.
Many in the Republican majority at the Trump impeachment trial will also, surely, be “nullifying”—“We don’t care what the evidence is, we want this president to remain in office. And we don’t like the fact that the Democrats were out to get him even before he was president.”
But the senators’ nullification on both sides is different.
Typically, when courtroom trial jurors nullify, they do so after having heard the facts and the law. They then reach the conclusion that they simply can’t abide what the prosecution is asking them to do.
Votes Not Secret
When the Senate takes its oath to dispense “impartial justice” in the matter of Donald J. Trump, virtually every senator will know—going in—what his or her vote will be, and what he or she thinks about the evidence they have already heard before the so-called “trial” begins. And many of the senators have actually said exactly that aloud.
The public never knows what trial jurors are thinking before or even during a trial, but the publicly largely knows what most senators will have decided long before Chief Justice John Roberts gavels the Senate into session.
So here’s the real question. What’s the true value of an oath that unambiguously demands “impartiality” when partiality on both sides has decided the case before the proceedings begin?
And what will the Senators, on both sides, be telling the nation about the integrity of oaths and the oath takers when they engage in the pretense of taking an oath to do “impartial justice” (regarding the most important decision they will ever make as legislators), metaphorically crossing their fingers when they do so?
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Joel Cohen is senior counsel at Stroock & Stroock & Lavan LLP. Previously, he served as a prosecutor at the New York State Special Prosecutor’s Office and at the Department of Justice’s Organized Crime & Racketeering Section. He is an adjunct professor of law at both Fordham and Cardozo law schools and is co-author of the recently published “I Swear: The Meaning Of An Oath.”