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Impeachment and the Significance of Member Oaths

William L. Kovacs

January 2020

Impeachment and the Significance of Member Oaths

As impeachment of the President moves to the Senate, both parties assert that members of the opposing party are violating their oath to support the Constitution.

Speaker Pelosi captures the Democrats’ thinking – “Every Senator now faces a choice: to be loyal to the President or the Constitution.” On the Republican side, the Senate majority leader counters “The House made a partisan political decision to impeach. I would anticipate … a largely partisan outcome in the Senate.”

Absent from the debate is discussion of what duties are imposed by swearing an oath?

There are various “Oath Clauses” – three in the Constitution, several statutory and one in Senate Rules of Impeachment.

Taking an oath is the first constitutional act of members of Congress. While the Article VI requirement of a Constitutional Oath is vague (“to support the Constitution”), the administered statutory oath includes the phrase “…I will well and faithfully discharge the duties of the office on which I am about to enter…” The oath obligates each member of Congress to recognize the limits of their authority and respect the separation of powers.

When a member takes the oath, a trustee relationship is created requiring loyalty to the Constitution and the institution in which one serves. As political parties gained greater power with massive organizational and fundraising ability, members of Congress tended to shift loyalty to the political party and away from the institution in which they serve. Notwithstanding an oath pledging to support the constitutional separation of powers, Republicans vote with Republicans, Democrats vote with Democrats, as evidenced by impeachment proceedings and legislative votes being party-line ninety percent of the time.

By prioritizing loyalty to party over the Constitution and the branch of government in which they serve, the Constitution is manipulated; the principle of separation of powers is eroded. Once eroded, the actions of government rest more on political power and less on constitutionally established institutions.

This brings us to the impeachment of the President. The impeachment language in the Constitution is simple – “The House shall have the sole power of Impeachment” and the Senate “shall have the sole power to try all Impeachments.”

The oath to be administered in impeachment proceedings is contained in Rule XXV, “Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials.” It requires Senators do “impartial justice according to the Constitution and laws.” These words immediately conflict with our political world in which 14 Democratic and 16 Republican Senators have already made biased statements on their votes without hearing evidence. There are no sanctions if a Senator acts with bias; and bias being a political question, court reviewability is unlikely.

Why do our representatives put us through a political process with predetermined outcomes?  Can anything be done to restore the constitutional significance of Impeachment proceedings?

Without impugning intent to the House or the Senate, it is clear Republicans in the Senate do believe the House investigation is flawed and will quickly acquit. The Democrats believe the Senate has an obligation to conduct an impartial trial which includes calling additional witnesses.

If the members of the House had acted as trustees of the Constitution, not as political loyalists, their institutional goal would have ensured a fair investigation, both sides having equal rights. Both parties would have worked as a constitutionally established institution obligated to find the facts, not seek political advantage. The removal of a President demands both parties have the same goal, protection of the Constitution. Trustees of the Constitution would do whatever it takes to protect it. Political parties will do whatever it takes to gain power.

Since the House has spoken, it is up to the Senate to devise a remedy to bring the nation together. Immediate dismissal, or the appearance of a sham trial will end the impeachment nightmare but further divide Congress and the public.

The nation deserves to know all the facts, damning and exonerating, of the President’s conduct. It is the obligation of the trustees of the Constitution to work together as an institution to find the facts. One approach might be for the Senate to unanimously remand the Articles of Impeachment to the House to develop solid facts. Upon the Articles return, every member of the House should abandon party loyalty and become real fact-finders, working to discharge a solemn constitutional duty. Only when the members of the House act as trustees to the Constitution, can they expect Senators to act impartially. Until then, it’s only political theatre and we all have tickets.

This article was first published in The Hill on January 6, 2020.