Between elections, the fallacy that one can not criminally prosecute a sitting President leads us to a situation where the only recognized path to address alleged Presidential criminality during their term is impeachment.

The prognosticators now tell us that the House will vote to impeach President Trump for abuse of power and obstruction of Congress along party lines and the Senate will vote to acquit him in the Senate trial also along party lines.

If those forecasts are accurate and our politics so predictable, something is terribly broken in us.

Is it possible for us as ordinary Americans to see this as a welcome moment where we can insist that those who seek every few years our vote to lead us to be less predictable and more deliberative?

In 1945 Justice Robert Jackson – just before he was appointed Chief Prosecutor at Nuremberg – reminded us that when we use judicial forms we must make sure we respect judicial norms.  And two key aspects of those norms for him were first that the defendant could be represented by whomever they wanted and second that if they could bring forward the evidence for their acquittal they should be able to be acquitted.

And now it seems that the party positions are so hardened that we might need to update Justice Robert Jackson’s comment with a third postulate: that if the evidence brought forward by the prosecutor is there to convict, then it should be possible to convict. 

If no matter how convincing the evidence, it is only possible to have articles of impeachment voted or impossible to get a conviction voted because of party lines, then what do we have left to protect the rights of the people?

It reminds me of those cases during segregation like Emmett Till with the acquittal by all-white juries.  Those kinds of cases are not history but form part of memory and remind us of the perversion of justice.

Of course, some would say that impeachment is not a judicial process but is a political process and subject to different norms.

I have lived through the Nixon impeachment where the process was not so clearly along party lines. And then the Clinton impeachment which was clearly along party lines.  The Nixon process impressed me, the Clinton process did not.

What will the Trump process be and how will our leaders be viewed by posterity?

One key point is that all of the judicial processes (state courts, courts-martial, military commissions, federal courts) foresee the ability to raise a question as to the independence and impartiality of a juror or a judge.

And the issue of pre-judgment by Senators who will be sworn in as jurors has already arisen before they have been sworn in.

I have seen cases in international arbitration where a party proposed an arbitrator who was required to sign a declaration of independence by which the proposed arbitrator was to state whether they were and would remain independent and impartial during the arbitration. The proposed arbitrator could, in doing that, disclose any points about themselves they wished to be drawn to the parties’ attention, the parties could decide whether to object and if a party so objected the arbitral institution would decide whether or not to confirm the proposed arbitrator as an arbitrator to hear the case looking forward to the enforceability of the arbitral award. And of course, there are the rules on voir dire for ordinary citizens being considered to sit on juries and rules for recusal for judges in state courts, courts-martial, military commissions, and federal courts at all levels. At the Supreme Court, the rule is that the Justice decides on his/her own recusal motion, but that implies that such a motion can be made (and has been made in the past).

Under the Senate Impeachment Rules – VII. “The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the Presiding Officer (Chief Justice) on the trial shall direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for” (emphasis added).

So, at least in theory, it is possible for an objection to a Senator sitting as a juror in the trial to be raised by another Senator, or the representatives from the House of Representatives and the Presiding Officer (the Chief Justice in this case), in the absence of Senate rules, would have to decide how to address such a motion for recusal.

It is not clear that the Senate can override such a decision by the Presiding Officer. Interestingly, the rules prescribe only with respect to evidence, that the Presiding Officer’s ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate. Upon all such questions, the vote shall be taken in accordance with the Standing Rules of the Senate.

So we will see if such a step is taken with respect to Senate Majority Leader McConnell and Senator Lindsay Graham who have been reported to have made public comments that could be construed as pre-judgment. Again, is this going to be Emmitt Till Justice or Nuremberg Justice? Inquiring minds wish to know and will be watching.

Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law. He is the Founder of the Advocates for US Torture Prosecutions and a Former Member of the ABA Standing Committee on Law and National Security.

Suggested citation: Benjamin G. Davis, A Perfect Impeachment of Presidential Crime: Emmitt Till Justice or Nuremberg Justice?, JURIST – Academic Commentary, December 16, 2019, https://www.jurist.org/commentary/2019/12/benjamin-davis-perfect-impeachment

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org