Senator McConnell Should Recuse Himself From Impeachment Now
After a closed door meeting with White House counsel Pat Cipollone on last month, Senate Majority Leader Mitch McConnell announced that he will be collaborating with President Trump during the upcoming Senate impeachment trial. “Everything I do during this, I’m coordinating with the White House counsel,” McConnell said. “There will be no difference between the president’s position and our position in how to handle this.”
Among others, Republican Senators Lisa Murkowski, Susan Collins, and Mitt Romney have voiced concern over the majority leader’s secret collaboration with the White House counsel. They question whether it’s McConnell’s job to act as President Trump’s alter ego during the impeachment trial.
McConnell will be serving as a judge-juror. His collaboration with President Trump should disqualify him from that role. Sir Francis Bacon sitting on the King’s Bench was convicted and disgraced because he’d engaged in ex parte communications with the British Crown. The impartiality required by due process clearly forbids any private contact between a judge-juror and the defendant or defense counsel.
Accordingly, to entrust to the compromised majority leader the power to prescribe impeachment trial procedures would be to rig or appear to rig the process in favor of the president. That would be politically hazardous for Senate Republicans. President Franklin D. Roosevelt was repudiated over his 1937 court-packing scheme to rig the U.S. Supreme Court. Not only did the legislation die in the Senate, it contributed to the Democratic loss of six Senate and 71 House seats during the 1938 midterm elections. Senator Joe McCarthy lost favor because of unfair procedures during his investigations of communism and communists, and was condemned by the Senate in 1954. Voters generally respect due process and may abandon elected officials who do not.
To avoid the taint of McConnell’s bias, other Senate Republicans should consider voting with Democrats to empower Chief Justice John Roberts to prescribe procedures for the impeachment trial. Among other things, the procedures should govern the admissibility of evidence, claims of privilege, subpoenas to compel testimony or documents, the burden of proof, direct and cross-examination of witnesses, and instructions as to the elements of an impeachable offense.
The Constitution, by designating the chief justice as presiding officer of impeachment trials, foresaw the partisanship that would likely prevail in such an atmosphere. The chief justice serves for life and is shielded from partisan pressures. Public confidence in Congress hovers at 10 percent, while the corresponding figure for the Supreme Court is 42 percent. The two major parties are in disrepute. A 42 percent plurality of voters are registered as independent, while 29 percent are Democratic and 27 percent are Republican.
Chief Justice Roberts has earned considerable public confidence with his temperament and robust defense of judicial impartiality that had been questioned by President Trump. Roberts publicly noted: “We do not have Obama judges or Trump judges or Bush judges or Clinton judges.” His major 5-4 opinions have skillfully navigated between the conservative and liberal constituencies. Among other things, conservatives have assailed his twin opinions upholding President Barack Obama’s Affordable Care Act, while liberals have chafed at his opinions sustaining President Trump’s travel ban and invalidating the preclearance procedures of the Voting Rights Act.
Delegating procedural authority to the chief justice for Trump’s impeachment trial passes constitutional muster. Still, those procedures can be overridden by a Senate majority, leaving ultimate political accountability in the upper chamber. Moreover, the Supreme Court held in Nixon v. United States (1993) that the Senate’s powers over impeachment trial procedures are virtually limitless. Yet the promulgation of procedural rules is a time-honored judicial function. The Federal Rules of Civil Procedure, for instance, are issued by the Supreme Court under the Rules Enabling Act subject to overruling by Congress.
To be successful, appointing Roberts the presiding officer needs to attract only three Republican votes. In case of a tie, Roberts would cast the deciding vote himself, as was done by Chief Justice Salmon Portland Chase in the impeachment trial of President Andrew Johnson. The votes might be there—but will Romney, Collins, and Murkowski put integrity before partisan imperative?
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan.