Senators Who Break Their Oath of Impartiality to the Trump Impeachment Trial Face Little Consequence

Senators took a solemn, historic oath last week to open the impeachment trial of President Donald Trump, swearing that they would be impartial in the process. So what happens if any of those senators break that oath?

The oath is as old as the constitution itself and an important ritual to affirm the duty of senators when undertaking the single most important check on presidential power, which is the process of impeachment and the trial that follows it.

"Do you solemnly swear," the oath, administered by Chief Justice John Roberts, began, "that in all things appertaining to the trial of the impeachment of Donald John Trump, now pending, you will do impartial justice according to the constitution and laws: So help you God?"

However, little can be done directly about any senators who violate the oath of impartiality because it is not legally binding.

"There really is no mechanism for enforcing the oath that senators take before an impeachment trial," Laurence Tribe, a professor of constitutional law at Harvard, told Newsweek. "Its main purpose is to remind the senators of their own duties, but what it requires of them is really up to each senator individually."

Tribe, a prominent critic of Trump, said he has argued that voting against hearing witnesses at the Senate trial—an issue that is currently the subject of a political wrangle between Republicans and Democrats in Congress—is "incompatible with the oath of impartiality."

"That is, ultimately, a matter of opinion and the Senate could not penalize or expel a member because of how that member votes. Nor could any court interfere on the ground that a senator was not being truly impartial or ought to recuse," Tribe told Newsweek.

This does not mean there is no way of holding senators to account for violating their oath. The issue is political, not legal, so the remedy for oath-breaking senators is political, too.

"There are at least two mechanisms for addressing situations when senators break their oaths in impeachment trials," Michael Gerhardt, a jurisprudence professor at the University of North Carolina at Chapel Hill, who gave evidence as an expert witness to the House impeachment inquiry, told Newsweek.

"One is, of course, the electoral process—they have to stand for re-election and account for their misconduct. The other is an ethics charge brought in the Senate or expulsion from the Senate."

The Senate can vote by a two-thirds majority to expel any member. This has happened only 15 times since 1789.

Absent any egregious or criminal behavior, such as taking a bribe to vote one way or the other at the trial, which would inspire bipartisan condemnation, the latter option would not likely be pursued even if a party had a two-thirds majority, which presently neither does.

Expelling senators for nakedly partisan reasons sets a Pyrrhic precedent that would inevitably burn everyone. Neither side is clean of accusations of impartiality.

Instead, voters are the best and most practical means of holding to account oath-breaking senators, whose electoral opponents could weaponize the issue.

This is also flawed, however, because some senators are in safe seats and so the potential for political blowback is muted. What the oath issue really reflects is a broader problem with the partisanship of the impeachment process.

Both Republican and Democratic senators have made comments seized on by the other side as evidence that they intend to break the oath of impartiality. This speaks to the oath's central contradiction: It is a pledge of impartiality by politicians who are, for the most part, partisan.

Akhil Amar, a professor of law and political science at Yale Law School, addressed the oath in a 1999 article for the Hofstra Law Review in the wake of the Clinton impeachment. Amar argued that senators should not caucus with their parties during impeachment.

"To be truly, deeply, really, impartial, each senator must be im-party-al. That is, each senator should try to wholly blot out of her legal decision-making all issues concerning political party," Amar wrote. "Impartial justice must be the same for Republican and Democratic presidents alike."

Amar suggested that senators could imagine the defendant on trial was from their own party when they are not, or imagine that they are actually a member of the opposing party, a kind of political empathy.

"But both of these imaginative exercises are psychologically hard to do—akin to writing sci-fi scripts involving parallel universes," Amar wrote.

"There is, however, one thing that a truly conscientious senator can easily do: Shun any 'party' caucus discussing impeachment issues. Senators must be free to talk informally amongst themselves and in small groups—but party affiliation should play no role whatsoever.

"Any Democrat who wants to listen in on a 'Republican' caucus should be allowed to do so—and vice versa. Ordinary judges, when they deliberate, never break up into Democratic and Republican caucuses, and neither do ordinary jurors."

With Trump's trial, Amar's analysis from 20 years ago still applies. The majority of Democrats and the majority of Republicans in the Senate are caucusing, falling into party lines, and Amar's criticisms of the impeachment process are bearing out once again.

Senate Trump impeachment trial senators oath
(L-R) Senator Lindsey Graham (R-SC), Senator Roy Blunt (R-MO), Supreme Court Chief Justice John Roberts and Senator Pat Leahy (D-VT) arrive to the Senate chamber for impeachment proceedings at the U.S. Capitol on January 16, 2020 in Washington, D.C. Drew Angerer/Getty Images