Washington • Sen. Mike Lee said Tuesday that senators are “not passive observers” and not jurors in the forthcoming impeachment trial of President Donald Trump as it became clear the Senate has enough votes to begin the process without an agreement to include witnesses.
Lee, a Utah Republican considered by some to be a constitutional scholar in the Senate, said senators can still objectively approach the trial on charges of abuse of power and obstruction of Congress against Trump but that it would be “foolish” to consider themselves jurors.
“We're not jurors,” Lee told The Salt Lake Tribune outside the Senate chamber Tuesday afternoon. “Our role is different than that of a juror.”
A juror, Lee said, is detached from the case presented, doesn't know the prosecutors or the defendant and is somewhat ignorant, or at least impartial, of the facts in the case. The Constitution set up an impeachment trial as inherently partisan, the senator said.
“The Senate is itself a political organ,” Lee said. “It’s one of the arms of our legislative branch, which is one of the political branches of government. And so I think it’s foolish and inaccurate to describe our role as being jurors.”
Lee’s comments came as Senate Majority Leader Mitch McConnell, R-Ky., announced that he had enough votes to start a Senate trial without any agreement to include witnesses — which McConnell said was similar to the origins of how the Senate handled the impeachment trial of President Bill Clinton in 1999.
“We have the votes once the impeachment trial has begun to pass a resolution, essentially the same, very similar to the 100-to-nothing vote” in the initial tally setting the rules for the impeachment trial of former President Bill Clinton, McConnell told reporters Tuesday. Clinton was later acquitted by a 55-45 vote on one charge and a 50-50 vote on another article. It takes two-thirds of the Senate, or 67 votes, to remove a president from office.
“What’s good for President Clinton is good for President Trump," McConnell added.
It's unclear when such a trial will begin.
House Speaker Nancy Pelosi, D-Calif., has yet to send the two articles of impeachment — passed by the House in a near party-line vote in December — to the Senate, though such an action is expected soon. The Senate could then begin the proceedings and later take a vote to hear from witnesses.
Sen. Mitt Romney, R-Utah, said the Clinton impeachment, in which he was acquitted by the Senate, provided a pathway for potential witnesses later on and that's “satisfactory to me.”
“I do want to hear from John Bolton and potentially others,” Romney said, referring to the former White House national security adviser who has stated he’d be willing to testify in a Senate trial if subpoenaed.
Romney is viewed as one of a handful of Republicans who could break ranks to vote with Democrats to call witnesses in the trial against Trump, who is the third president to be impeached.
House managers, who will serve as essentially prosecutors in a Senate trial, are expected to present a case that Trump withheld hundreds of millions in military and State Department aid from Ukraine while pressuring the country’s new president to announce investigations into former Vice President Joe Biden, a political rival, and his son Hunter, who served on the board of a Ukrainian energy company.
Trump, according to a memo about the president’s call with Ukrainian President Volodymyr Zelenskiy, also wanted a probe announced regarding a debunked conspiracy theory that a server connected to the hacking of the Democratic National Committee was being held in Ukraine.
The money was later released to Ukraine after news reports surfaced that it was being withheld against Congress' direction.
The White House and Trump’s supporters — including McConnell, who said he was working with the Trump administration going into the trial — argue the impeachment effort is just a continuation of Democrats and anti-Trump forces trying to undo his 2016 election.
“It’s a hoax,” Trump told reporters in the Oval Office on Tuesday. “The impeachment is a big hoax. It’s become a laughingstock all over the world. There was nothing done wrong. The two articles that were sent are not even serious. And, by the way, they’re not a crime.”
Romney, who has clashed with Trump before and after he took office, has said that going into the trial he will remain “unbiased and a true juror.”
Lee, in an op-ed published by Fox News, laid out why a Senate impeachment trial is nothing similar to that found in the American judicial system, mainly because “senators are not passive observers of the trial.”
“The Constitution gives the Senate the sole power to set its own rules,” Lee wrote. “Under the Senate’s long-established impeachment rules, senators decide what evidence should be heard, how it should be presented and what witnesses should (or should not) be called," Lee wrote. “They can even override the presiding officer, who in the case of a presidential impeachment is the chief justice,” John Roberts.
“No jury can do that,” Lee continued.
For Romney's part, he said that he is fine with McConnell coordinating with the White House because he believes the Republican leader will do what's right.
“I’m sure that the leader will provide impartial justice,” Romney said.