In recent decades, we have witnessed the diminution of the impeachment process by various actors—especially political parties. But the Founders envisioned a vastly different process, one that was insulated from partisanship. In Alexander Hamilton’s words, impeachment trials were assigned to the Senate because the Senate is “a tribunal sufficiently dignified [and] sufficiently independent.” Examples from the most recent impeachment trials of President Donald J. Trump reflect the Senate’s loss of dignity and independence, with Senator McConnell pledging to work with the White House throughout the first impeachment process and senators from both parties conceding that they made up their minds before the trials even began. After identifying the permeation of partisanship into the impeachment process, this Article draws attention to the senatorial impeachment oath— the oath taken by senators to “do impartial justice”—as one avenue for reform. The oath has been overlooked in much of the secondary literature about impeachment, receiving as little as two sentences in one of the most prominent books about the subject, Charles Black’s Impeachment: A Handbook. After canvassing the history of the senators’ oath and comparing that oath to other prominent oaths in American law, this Article explores two possible reforms: (1) a perjury-like law criminalizing oath-breaking by senators and (2) Senate rule changes designed to amplify the force of the oath. Ultimately, Senate rule changes are both more practical and more likely to survive constitutional scrutiny, but by considering both paths, this Article presents the comparative strengths and weaknesses of the two modes of reform.
Justin D. Rattey
Impartial Justice: Restoring Integrity to Impeachment Trials,
49 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol49/iss1/3