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VERIFY: Are senators required to be 'impartial jurors' in an impeachment trial?

The Verify team looked into whether senators are required to be 'impartial jurors' by the U.S. Constitution.

WASHINGTON — Question:

Are senators required by the Constitution to act as 'impartial jurors' during impeachment trials?

Answer:

The Constitution gives the Senate the 'sole power to try impeachments,' and requires that senators 'be on oath or affirmation' while sitting for that purpose. 

During these trials, Senators take an oath to "do impartial justice according to the Constitution and laws," while sitting for an impeachment trial. For this reason, Senators are technically required to act as an impartial juror.

However, unlike criminal trials, there is no way to remove a Senator for showing impartiality. Since this is an inherently political process, our legal and political experts said that it is expected that Senators should act with political allegiances or biases. 

Sources:

Process:

Throughout the impeachment process, there are a lot of lawmakers and pundits using the term 'impartial jury,' to describe the Senate. That includes Sen. Bill Cassidy, a Republican from Louisiana, who grabbed headlines for criticism of the Trump defense. 

"If I'm an impartial juror," he said. "And one side is doing a great job, and the other side is doing a terrible job, on the issue at hand, as an impartial juror, I'm going to vote for the side that did a good job." 

The Constitution doesn't go into great detail about whether senators should be impartial, reading as follows in Article I, Section III. 

"The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation."

Historically, Senators have been required to take an oath swearing to "do impartial justice according to the Constitution and laws," when sitting for an impeachment trial.

"In modern practice, the Chief Justice asks all senators, who are standing at their desks, to raise their right hands as he reads the oath, and senators respond, all together, 'I do'," read a report from the Congressional Research Service.

 "Senators also sign an official oath book, which serves as the permanent record of the administration of the oath," he continued.

The Verify team reached out to a trio of legal and political experts for context. They all agreed that this oath technically means that Senators should maintain impartiality. 

However, in action, this is not always the case. 

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Robert Peck, the founder and president of the Center For Constitutional Litigation said that 'no one expects them to be impartial,' since the process is inherently political.

"It is, at least in part, a political process," he said. "So senators are presumed to have political allegiances and even political interests that may affect their votes."

Allan Lichtman, a professor of history at American University, pointed out that there is no enforcement for impartiality either. 

"Unlike jurors in a standard criminal case," he said. "Senators cannot be dismissed from the trial because they have already made up their minds about guilt or innocence." 

Peck emphasized as well the difference between an impeachment trial, and a criminal trial. 

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"In a regular courtroom, an impartial juror is someone who has not prejudged the matter," he said. "And who does not have allegiances to or biases against one party or the other, and who does not bring independent knowledge of the dispute that could override the evidence presented."

Peck emphasized that in an impeachment trial, all the senators have independent knowledge. 

"They were directly affected by the attack on the Capitol and are witnesses to critical facts," he said. "They would not normally be able to serve as jurors in a real trial, but are the only people assigned responsibility in the constitution to try an impeachment."