{"id":38484,"date":"2019-12-21T06:50:41","date_gmt":"2019-12-21T14:50:41","guid":{"rendered":"https:\/\/www.politicsplus.org\/blog\/?p=38484"},"modified":"2019-12-21T06:50:41","modified_gmt":"2019-12-21T14:50:41","slug":"everyday-erinyes-197","status":"publish","type":"post","link":"https:\/\/www.politicsplus.org\/blog\/2019\/12\/21\/everyday-erinyes-197\/","title":{"rendered":"Everyday Erinyes #197"},"content":{"rendered":"

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto<\/span><\/strong>, Megaera<\/span><\/strong>, and Tisiphone<\/span><\/strong>. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”<\/p>\n

Now that we have Articles of Impeachment, everyone will start speculating about the trial in the Senate, although it’s not now even 100% certain that there will be one at all. The Senate, of course, wants it fast so they can kill it fast. The House, of course, wants to be certain that this trial will be fair – and not a circus. Perhaps it wouldn’t hurt to look back at a previous trial, including a previous analogy of Senators as jurors.<\/p>\n

=================================================================<\/p>\n

When a chief justice reminded senators in an impeachment trial that they were not jurors<\/h1>\n
Senate Majority Leader Mitch McConnell, R-Ky., fields questions from reporters about an impeachment trial in the Senate, Dec. 10, 2019.
\nAP Photo\/J. Scott Applewhite<\/a><\/span><\/figcaption><\/figure>\n

Steven Lubet<\/a>, Northwestern University<\/a><\/em><\/p>\n

Senate Majority Leader Mitch McConnell created a predictable stir when he told<\/a> Fox News host Sean Hannity that he would structure the impending impeachment trial of President Donald Trump in \u201ctotal coordination with the White House counsel\u2019s office.\u201d He added, \u201cThere will be no difference between the president\u2019s position and our position as to how to handle this.\u201d<\/p>\n

This outright rejection of neutrality drew immediate protests from Democrats. Rep. Val Demings, D-Fla., who may well be one of the House impeachment managers<\/a> in the Senate trial, called for McConnell\u2019s recusal, saying<\/a> \u201cNo court in the country would allow a member of the jury to also serve as the accused\u2019s defense attorney.\u201d<\/p>\n

House Judiciary Committee Chair Jerry Nadler, D-N.Y., likewise slammed<\/a> \u201cthe foreman of the jury\u201d for saying he would \u201cwork hand and glove with the defense attorney.\u201d<\/p>\n

Demings and Nadler made a valid point, but they used the wrong analogy. Senators at an impeachment trial are not the equivalent of a jury and they are not held to a juror\u2019s standard of neutrality.<\/p>\n

\"\"<\/a>
President Trump returns to the White House from a trip to Ft. Lauderdale, Fla., Dec. 8, 2019.<\/span>
\nAP\/J. Scott Applewhite<\/a><\/span><\/figcaption><\/figure>\n

Harkin\u2019s objection<\/h2>\n

The principle, that senators are not jurors in the traditional sense, was well established at the outset of the 1999 impeachment trial of President Bill Clinton<\/a>.<\/p>\n

Tasked with delivering an opening statement for the House managers \u2013 who present the House\u2019s case to the Senate \u2013 Rep. Robert Barr, R-Ga., reminded the senators<\/a> of Clinton\u2019s tendency to \u201cnitpick\u201d over details or \u201cparse a specific word or phrase of testimony.\u201d To Barr, the conclusion was obvious: \u201cWe urge you, the distinguished jurors in this case, not to be fooled.\u201d<\/p>\n

That was the moment Sen. Tom Harkin<\/a>, an Iowa Democrat, had been waiting for.<\/p>\n

\u201cMr. Chief Justice<\/a>,\u201d he said, addressing William Rehnquist, who was presiding over the trial, \u201cI object to the use<\/a> and the continued use of the word \u2018jurors\u2019 when referring to the Senate.\u201d<\/p>\n

\"\"<\/a>
Sen. Tom Harkin, D-Iowa, raised a crucial point about senators\u2019 roles in the impeachment trial of President Clinton in 1999.<\/span>
\nAP\/Joe Marquette<\/a><\/span><\/figcaption><\/figure>\n

Harkin had prepared well, basing his argument on the text of the Constitution<\/a>, the Federalist Papers<\/a> and the rules of the Senate<\/a> itself.<\/p>\n

He explained that<\/a> \u201cthe framers of the Constitution meant us, the Senate, to be something other than a jury.\u201d<\/p>\n

Instead, Harkin continued, \u201cWhat we do here today does not just decide the fate of one man. \u2026 Future generations will look back on this trial not just to find out what happened, but to try to decide what principles governed our actions.\u201d<\/p>\n

Chief justice weighs in<\/h2>\n

The chief justice sustained the objection<\/a>.<\/p>\n

\u201cThe Senate is not simply a jury,\u201d he ruled. \u201cIt is a court in this case.\u201d<\/p>\n

Rehnquist thus admonished the House managers \u201cto refrain from referring to the Senators as jurors.\u201d For the balance of the trial, they were called \u201ctriers of law and fact.\u201d<\/p>\n

Rehnquist and Harkin got it right. Article III of the Constitution<\/a> provides that \u201cTrial of all Crimes, except in Cases of Impeachment, shall be by Jury,\u201d and for good reasons.<\/p>\n

\"\"<\/a>
Chief Justice William H. Rehnquist, shown in this video image, presides in the impeachment trial of President Clinton on the Senate floor, Feb. 8, 1999, in Washington.<\/span>
\nAP Photo\/APTN)<\/a><\/span><\/figcaption><\/figure>\n

In an ordinary trial<\/a>, the jury\u2019s role is generally limited to fact-finding, while the judge determines the scope and application of the law. In an impeachment trial, however, the Senate itself has the \u201csole power\u201d<\/a> to decide every issue<\/a>.<\/p>\n

Recognizing the Senate\u2019s all-encompassing responsibility, and his own limited role, Chief Justice Rehnquist referred to himself throughout the proceeding only as \u201cthe Chair<\/a>.\u201d<\/p>\n

As the U.S. Supreme Court has put it<\/a>, impeachment presents a \u201cpolitical question,\u201d in which all of the \u201cauthority is reposed in the Senate and nowhere else.\u201d<\/p>\n

Oath or affirmation required<\/h2>\n

McConnell, the Senate\u2019s leader, has more leeway and far more power than any juror or even a jury foreperson.<\/p>\n

The Constitution\u2019s only procedural limitation is the requirement in Article I<\/a> that the senators be placed under \u201coath or affirmation.\u201d<\/p>\n

Although the Constitution does not specify any particular wording (unlike the presidential oath<\/a>, which is included word for word), the Senate adopted rules for impeachment trials in 1986<\/a> requiring each senator to affirm or swear to do \u201cimpartial justice according to the Constitution and laws.\u201d<\/p>\n

\u201cImpartial justice\u201d does not demand the enforced naivet\u00e9 of jury service, which would be impossible in an impeachment trial. For example, the senators all have prior knowledge of at least some of the facts, and several of them are currently vying to run against Trump in 2020, while others are backing his reelection campaign.<\/p>\n

But the Senate\u2019s oath of impartiality clearly calls for at least some commitment to objectivity. Thus, the problem with McConnell\u2019s announcement was not that he failed to behave like a juror.<\/p>\n

Rather, he has declared an intention to disregard the Senate\u2019s prescribed oath, which was fixed long ago by the very body that elected him its leader.<\/p>\n

When Tom Harkin disclaimed a juror\u2019s role at the Clinton trial, his purpose was not to affect the outcome of the case, but rather to underscore the full scope of the Senate\u2019s decision-making responsibility. In contrast, Mitch McConnell appears to have boldly renounced open-mindedness itself on the impeachment court, whether as juror, judge or \u201ctrier of law and fact.\u201d<\/p>\n

[ Deep knowledge, daily.<\/em> Sign up for The Conversation\u2019s newsletter<\/a>. ]\"The<\/p>\n

Steven Lubet<\/a>, Williams Memorial Professor of Law, Northwestern University<\/a><\/em><\/p>\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n

=================================================================<\/p>\n

Alecto<\/span><\/strong>, Megaera<\/span><\/strong>, and Tisiphone<\/span><\/strong>, certainly Roberts is not Rehnquist, and that’s far from the only difference between then and now – or between now and when the Constitution was framed.\u00a0 The framers were wise enough to foresee the possibility of a corrupt President.\u00a0 They did not, however – how could they? – foresee the possibility of a corrupt President and a corrupt Senate at the same time.\u00a0 If they had done so, they might have had some qualms at entrusting the Senate to be, not less than, but more than a simple jury.<\/p>\n

When intelligent and knowledgeable people discuss things on the internet, the contents of those discussions reach the people responsible for acting in those areas, and things happen.\u00a0 Perhaps we, especially with the help of the Furies, can help to create discussion of this subject all over the internet.\u00a0 And then, things may happen.<\/p>\n

The Furies and I will be back.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, […]<\/a><\/p>\n","protected":false},"author":8,"featured_media":32899,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[3729],"class_list":["post-38484","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics","tag-furies","category-5-id","post-seq-1","post-parity-odd","meta-position-corners","fix"],"_links":{"self":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts\/38484","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/comments?post=38484"}],"version-history":[{"count":0,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts\/38484\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/media\/32899"}],"wp:attachment":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/media?parent=38484"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/categories?post=38484"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/tags?post=38484"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}