The Trump Trial Isn’t a Criminal Proceeding, and the Senators Aren’t Jurors

This isn’t, strictly speaking, a trial judge. Photo: Hilary Markiewicz/Senate Television via Getty Images

Quite understandably, those trying to explain or interpret the Trump impeachment trial often try to make the proceedings more relatable to the reading or viewing public by analogizing them to criminal trials they may have participated in as jurors or spectators or learned about in the vast storehouse of pop-culture courtroom depictions. As the Washington Post’s Ann Marimow observes, both sides in the impeachment fight are trading on the same analogies:

As the Senate impeachment trial began in earnest Tuesday, President Trump’s lawyers decried the lack of “fundamental fairness and due process” in the House investigation and blasted Democrats for a “wholesale trampling of constitutional rights,” as White House counsel Pat Cipollone put it.

Later, one of the House Democrats who is prosecuting the case against Trump argued that Americans are familiar with trials through TV shows or even personal experiences and thus would expect the witness testimony the Democrats want to hear in the Senate trial. “All we’re asking for today is to give the American people the trial that they expect,” said Rep. Sylvia Garcia (D-Tex.), a former judge herself.

But it’s worth remembering that an impeachment trial of a president of the United States isn’t, strictly speaking, a criminal trial at all. Certainly, the constitutional Founders and the senators who fashioned their chamber’s standing rules on impeachment trials (mostly during the 1868 trial of Andrew Johnson) were certainly influenced by their own experiences with the Anglo-American judicial tradition. But they provided unique rules for impeachment trials that don’t apply to others, even some rules that were unique to presidential impeachments.

To begin at one obvious point of departure, the judge who is sitting in the chair of the Senate during Trump’s trial is there only because the Founders thought that leaving the vice-president (who presides over impeachments of other officials) in that role would represent a conflict of interest, since a successful removal of the president would lift the veep to the chief-executive position. And while John Roberts does retain a judge’s power to rule on matters of evidence and relevance in the course of a trial (with the rather unusual advice of the Senate parliamentarian), he can be overruled at any point by the Senate itself — a limitation unknown to criminal-trial judges.

If Roberts is as much a legislative presiding officer as a “judge” in this trial, senators are part judges and part jurors. Some have directly analogized them to trial jurors, insofar as they remain silent during the trial itself (except for votes on procedural motions and the final verdict) and take an oath of impartiality. But, as Marimow notes, they are nothing like jurors in other respects:

Legal observers joked that every one of the 100 senators would likely have been struck for bias from the pool of potential jurors in an ordinary trial. Four senators — Bernie Sanders (I-Vt.), Amy Klobuchar (D-Minn.), Elizabeth Warren (D-Mass). and Michael F. Bennet (D-Colo.) — are in the running for the Democratic nomination to replace President Trump. The jury foreman for the trial, Majority Leader Mitch McConnell (R-Ky.), has said there is “zero chance” the president would be removed from office and has promised “total coordination” with the White House and Trump’s defense team …

“It’s truly bonkers,” Preet Bharara, the former U.S. attorney for the Southern District of New York, said of the analogies to traditional trials.

“In a real criminal trial, jurors are not even allowed to know the defendant much less have an opinion of him, much less read stories, much less have a subset of them who want to replace the defendant.”

In criminal trials, of course, jurors cannot overrule the trial judge on procedural and evidentiary rulings, either. Yes, the “juror” identity is popular among senators who don’t want to make their opinions known about matters under discussion in the trial until it’s over. But it’s mostly a fiction. There’s nothing in law or tradition that keeps one of these “jurors” from stepping out of the Senate’s silent cocoon and waxing eloquent in interviews.

Finally, the standard of proof in an impeachment trial is unlike any other proceeding. It’s not “guilt beyond a reasonable doubt” or even “by a preponderance of the evidence” but whatever the constitutionally mandated two-thirds of the Senate believes constitutes grounds for removal:

“When deciding questions of impeachment and removal,” according to a 2019 Congressional Research Service report, “historical practice seems to indicate that members need be convinced only to their own satisfaction.”

So the senatorial “jurors” aren’t limited to questions of fact, as opposed to law, and aren’t charged on their responsibilities by the “judge,” and neither the “judge” nor the “jury” can be second-guessed by an appellate court. Maybe that makes the proceedings feel strange to the public, but then again, they are: Perhaps that’s why we have presidential impeachments only two or three times every 230 years or so.

No, the Impeachment Trial Isn’t a Criminal Proceeding