“The jury, passing on the prisoner’s life, may in the sworn twelve have a thief or two guiltier than him they try.”
— William Shakespeare, “Measure for Measure”
Not much happened in that little town. So just about every serious crime that was committed or alleged got all the in-depth coverage a rookie reporter such as myself could muster.
I would sit, sometimes for most of a day, watching local prosecutors and defense attorneys, often not much older than I was, question potential jurors about whether they knew anything about the case, anything that might cause them to prejudge the matter. And it was really annoying to me that so many members of the jury pools said they had never heard about it.
They knew nothing about a case that I had been covering since the crime was allegedly committed, through the arrest, booking, arraignment, preliminary hearing, often with long front-page articles. In an age where their were three TV channels, no internet and most everyone subscribed to the local newspaper.
But, as my managing editor explained to me though a haze of maple-scented pipe smoke, those stories were about other people. As important as it was to have public proceedings and to put it all on the record, those not directly affected often didn’t notice.
Neither do any of the other 99 members of the U.S. Senate, who are about to sit as what is commonly described as the jury that is to receive the articles of impeachment from the House of Representatives and decide whether or not to remove the sitting president.
The Constitution does not use the word “jury” in this context. But the shorthand is understandable, as what it does say in Article 1, Section 3, is sort of the same thing. It says, “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.”
Which means that Mr. Madison and company wanted this to be sort of a judicial proceeding, to be taken seriously. So seriously that senators must take another oath, in addition to the one they all took to take up their offices in the first place, promising to, “do impartial justice according to the Constitution and laws.”
In the trials I covered, those empaneled on a jury were warned by the judge not to read or listen to any news coverage of the trial or discuss the case with anyone while the proceedings were going on. Their ignorance of the case was, at that point, an asset.
That’s something else that doesn’t apply here.
What isn’t clear, as we haven’t had enough impeachments in the last 230 years to build a stack of governing case law, is whether there are rules or an enforcement mechanism to exclude senators from the impeachment process the way a trial judge can remove jurors if it is clear they are not able to hear the case fairly.
No trial judge would allow a juror to be like Senate Majority Leader Mitch McConnell, who has made it clear he is not just prepared to vote for to acquit, but that he is coordinating with the White House. The same might be assumed of Utah’s other senator, Mike Lee, who started out abhorring the current president and all he stands for before becoming his Utah reelection chairperson. And some Democratic senators, including presidential contenders Elizabeth Warren and Cory Booker, have tipped their hand the other way.
Romney has said he will take that oath and the responsibility seriously and make a decision only after the trial has concluded and all is on the record. That record, if McConnell has anything to say about it, will be sparse, as the majority leader wants to rush this through with little deliberation and none of the witnesses — current and former presidential aids who didn’t speak up during the House proceedings — who ought to be heard from.
The aphorism about how nobody ever went broke underestimating the intelligence of the American people here becomes the sad realization that the dreams of the founders have gone bust by overestimating the jealousy of members of Congress to assert their own power, individually and as members of their body, in opposition to presidential authority.
If one branch of government is held in total thrall to another branch, just because some individuals are of the same political faction, there should be real fear that this grand experiment in self-government may perish from the earth.
George Pyle, editorial page editor of The Salt Lake Tribune, once covered trials in the same courtroom where, 19 years before, Truman Capote sat researching “In Cold Blood.” Too bad none of that writing talent rubbed off.