Senators are required to take a 'special oath' as impeachment triers — and some of them have 'precommitted themselves to violating' that obligation: legal experts

Senate Majority Leader Mitch McConnell and South Carolina Sen. Lindsey Graham (who chairs the Senate Judiciary Committee) have made it abundantly clear that if President Donald Trump is indicted on articles of impeachment by the U.S. House of Representatives — which is likely — and those articles go to the U.S. Senate for consideration, they have no intention of seriously considering the evidence. And legal experts Benjamin Wittes and Quinta Jurecic, in a December 16 article for The Atlantic, emphasize that both of those high-ranking Republicans are failing to perform their constitutional duties as U.S. senators.


Wittes and Jurecic are both sought out for their legal expertise. Wittes is editor-in-chief of Lawfare, while Jurecic is Lawfare’s managing editor. Both are freelance contributors to The Atlantic, and Wittes is a frequent guest on MSNBC.

Citing Article I, Section 3, Clause 6 of the U.S. Constitution, Wittes and Jurecic assert that according to the Founding Fathers, “the Senate shall have the sole power to try all impeachments” — and when the Senate is in session “for that purpose,” United States senators “shall be on oath or affirmation.”

“The requirement of a special oath for senators sitting as impeachment triers of fact is unique in the document,” Wittes and Jurecic assert. “Senators don’t swear a special oath to engage in the appropriations process or to consider judicial nominations or to propose health-care legislation. They don’t even swear a special oath to consider a declaration of war or an authorization to use military force. But they do when the Senate sits as the trial forum for impeachment, at which point, it becomes a non-legislative tribunal with a wholly different institutional purpose and face.”

McConnell and Graham, according to Wittes and Jurecic, “have publicly precommitted themselves to violating the oath they are both constitutionally obliged to take.” The Senate majority leader has vowed that he will “coordinating with White House counsel” on Trump’s impeachment, and Graham has declared, “I’m not trying to pretend to be a fair juror here.”

Although highly critical of McConnell and Graham in their article, Wittes and Jurecic cite Sen. Mitt Romney of Utah as a “decent model of what… restraint looks like” on the Republican side. The former Massachusetts governor and 2012 GOP presidential nominee recently said, “There will be a trial in the Senate, (and) we will hear the arguments from both sides. Upon those arguments, and whatever evidence they present, I’ll make a decision.”

But McConnell and Graham, Wittes and Jurecic lament, have demonstrated that they don’t take the U.S. Constitution seriously.

“Whatever the right answer is,” Wittes and Jurecic write, “what Graham and McConnell have done — publicly committing themselves to behaving in a fashion inconsistent with their oath — is certainly the wrong answer.”

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