As the trial of President Trump ramped up Thursday, senators were sworn in by Chief Justice John Roberts, marking the third impeachment trial in the nation’s long, continuous history.
Senators like other elected officials take an oath of office when they are elected. In the case of the president, the Constitution prescribes these words:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
This is already odd enough, first because, what meaning does it have? It makes the president, by merely speaking the words aloud, liable for his failure to defend the Constitution. Surely this is implicit in much of the rest of the Constitution, yet we go on believing that it is only real when we add what risks becoming, through dulled repetition, mumbo-jumbo. The president could say “Double, double, toil and trouble” and be no less bound. But then there is the addition of the escape clause, “to the best of my ability.” Why is that even there? Surely it is no less implied that everyone is expected to do their best.
The Constitution is mercifully silent on the wording of an impeachment oath. This is what senators affirmed Thursday:
“I solemnly swear that in all things appertaining to the trial of the impeachment of President Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”
Does anyone suppose that if the oath had not been taken and the Senate voted to convict the president, which has never happened before, a case could be made by the president that he was not in fact guilty since these words were not spoken first? It is a kind of magical thinking unworthy of a great republic born out of the Enlightenment.
Worse, based on the rules the Senate adopted in the 1980s, nothing binds the senators to their oath. No one can punish them for not being impartial for the simple reason that there is no such power. Suppose a senator, rather than sitting silently, burst out with “This is a sham! Trump is the best thing since margarine was invented!” It is not as though Roberts could hold the senator in contempt. This is not his court or courtroom. Who could he summon to enforce his will? He is called a referee but he cannot even stop the fight.
Our senators are on the honor system here. Yet no one believes they are all honorable for the same reason that now may be the worst possible time to suppose they will keep open minds when apparently no one in either party wants them to do that, about this or much of the rest of their business.
The kind of people who are too principled to put party before country rarely become powerful politicians, George Mason law professor Ilya Somin recently told The Washington Post on a related subject. And anyone who has ever been a party-line voter has helped to make it this way.
So, the senators will be a super-jury, unbounded and tasked with the nigh-impossible by three dozen words written on a slip of paper; and we, the courtroom spectators, are left hoping lightning will strike. Who needs the magic words now?