Is the Senate Like a Jury?

Sen. Tom Harkin caused a fuss on Saturday afternoon by objecting to Rep. Bob Barr’s habit of calling senators “jurors.” It seems odd that anyone would care one way or the other. But, as William Saletan explains right here, the “juror” word war is really a battle to define the standards for convicting an impeached president. Since no one alive (and almost no one dead) has ever conducted a presidential impeachment trial, many of the larger issues are uncertain. But if they turn on whether the Senate is like an ordinary trial jury, the answer is yes and no. But mainly no.

Talking about the case: DIFFERENT.

In an ordinary trial, jurors may not discuss a case in progress, even with their spouses. Senators observe no such rule. For instance, 19 senators–almost one fifth of the Senate–appeared on political talk shows last Sunday to discuss the impeachment trial with the world.

Talking during the trial: SAME.

In an ordinary trial, jurors do not question witnesses. The idea is that jurors evaluate the narratives presented by defense and prosecution attorneys–jurors aren’t responsible for gathering evidence and developing explanatory theories. Senators ordinarily question witnesses during legislative hearings, but during an impeachment trial they assume the juror’s passive role.

Conflict of Interest: DIFFERENT.

Individuals with an obvious conflict of interest are excluded from serving as jurors in an ordinary trial. Not so with the Senate. For instance: Sen. Tim Hutchinson’s brother (Asa) is one of the House-appointed prosecutors. Sen. Barbara Boxer’s daughter is married to Hillary Clinton’s brother. Some Democratic senators (e.g. Chuck Schumer) received campaign help from Hillary Clinton. No senator can ignore the effect of any result in this trial on his or her career. In theory, each senator decides whether to recuse him or herself. By the standards of ordinary juries, all 100 should. In real life, not one has done so.

Pre-trial Prejudice: DIFFERENT.

In ordinary trials, jurors are disqualified if they already are familiar with the facts of the case or–if publicity has made that impossible–if they have expressed any opinion about it. Most if not all Senators would be disqualified if that standard applied to an impeachment trial.

Fact Finding: SAME.

In an ordinary trial, the jury is responsible for deciding whether the prosecution’s charges have been sufficiently substantiated by the evidence. The Senate is likewise responsible for deciding whether the articles of impeachment have been substantiated.

Procedure: DIFFERENT.

In a traditional trial, the judge rules on matters of procedure, such as whether certain evidence is admissible. In an impeachment trial, any of Chief Justice Rehnquist’s procedural decisions can be overruled by a majority of the Senate, which effectively makes the senators the procedural authorities. This means that senators, unlike ordinary jurors, can prevent witnesses from testifying and can even cancel the trial outright.

Sentencing: ???????

Jurors decide guilt or innocence. Whether they play a role in sentencing varies state-by-state. Senators Trent Lott and Tom Daschle (the majority and minority leaders) believe that the Senate likewise has no say regarding punishment: if Clinton is convicted, he is instantaneously and automatically removed from office. Other senators (e.g., Mitch McConnell and Robert Torricelli) have suggested the opposite–the Senate may convict Clinton but subsequently vote against removing him.

Attendance: DIFFERENT.

Jurors are required to attend the trial to which they are assigned. In fact they can be forced to take a prolonged absence from work and, in extreme cases, are sequestered. Senators, on the other hand, are not required to attend the impeachment trial. In fact, the show will go on so long as 51 senators are present.

Burden of proof: DIFFERENT.

In an ordinary trial, the jurors are told to decide on guilt or innocence “beyond a reasonable doubt” (the usual standard in criminal trials) or merely based upon a “preponderance of the evidence” (civil lawsuits). In the impeachment trial, no rule clearly specifies which standard of evidence to apply, meaning that this decision is up to each senator.

National interest: ???????????

This is the million-dollar question. Jurors are supposed to decide based on the facts and the law presented at the trial. “Jury nullification”–jurors brazenly ignoring the law, usually to let a defendant go free–happens (and humanizing the hard edges of the law is even one of the classic purposes of the jury system), but it’s not supposed to happen. Democrats are now arguing that it is legitimate for senators to go beyond the facts and law of the Clinton case to consider whether tossing him out of office would serve the national interest. (This is slightly different from the argument that Clinton’s alleged crimes are not “high crimes.”) Republicans are insisting that taking such broad policy considerations into account would be “jury nullification.” Who’s right? That depends on how much you think the Senate is like a jury.

Next question?