On Thursday, three Republican senators – Ted Cruz from Texas, Lindsey Graham from South Carolina and Mike Lee from Utah – allegedly met with former President Donald Trump’s impeachment defense lawyers, according to Cruz and the lawyer Trump, David Schoen.
Schoen called the three senators “very friendly,” a comment that raised eyebrows, as senators are often considered impartial jurors during impeachment trials. In other criminal and civil trials, jurors are prohibited from meeting or expressing explicit favors to the lawyers involved in the case.
Schoen said the senators met with them to ensure they were “familiar with the procedure” before offering their opening arguments on Friday in rebuttal to the case of the House’s impeachment administrators, CNN reported. Schoen considered the mid-court meeting appropriate, adding, “I think it is the practice of impeachment … There is nothing about it that has any appearance of due process.”
However, Cruz said the meeting was not just about procedure, but a chance to “share our thoughts” about the legal defense strategy “in terms of where the discussion was and where to go”, The hill reported as saying.
“I think their job is to make it clear how the administrators of the house have not borne the burden of proof. They have not demonstrated that the president’s conduct meets legal standards for serious crimes and misdemeanors,” said Cruz.
Newsweek he contacted the House’s impeachment managers, Democratic MPs Jamie Raskin, David Cicilline, Ted Lieu and Madeleine Dean, for comment.
Andrew Harnik – Pool / Getty
In a tweet published on Thursday night, Cruz also refuted the idea that senators are jurors, citing a January 2020 report Washington Post opinion article by former Iowa Democratic senator Tom Harkin as evidence.
Harkin’s article points to Article III of the Constitution, which states: “The trial of all crimes, except in cases of impeachment, will be by jury.” Unlike jurors, Harkin noted, senators can ask questions, raise objections, discuss the case out of court with interested parties and also impose a sentence.
“The impeachment Senate is a court – a court composed of 100 judges, not 100 jurors,” wrote Harkin. “As judges, they have to make decisions on a wide range of issues – the facts, the public good, how the actions taken by the president impact our democracy, justice, history, proportionality and the constitution.”
Before impeachment trials begin, senators take an oath. The oath, administered by Chief Justice John Roberts, says: “You solemnly swear that in all things relating to the impeachment trial of Donald John Trump, now pending, you will be impartial justice according to the Constitution and the laws: then you help God? “
But despite that promise, impeachment remains an “inherently legal process”, according to Robert Peck, founder and president of the Center For Constitutional Litigation. As such, “senators are presumed to have political loyalties and even political interests that can affect their votes,” Peck told WUSA.
“[The Senators] were directly affected by the attack on the Capitol and are testimony to critical facts, “continued Peck.” They would not normally be able to serve as jurors in a real trial, but they are the only people designated by the Constitution to try an impeachment. “
Both Republican and Democratic senators pointed to comments made by members of the opposite party as evidence that they intend to break the impartiality oath.
But even if a senator is seen as having broken his promise of impartiality, he faces only one of two consequences: being removed from office by his voters or being expelled from the Senate by a two-thirds majority vote.