On Thursday, three Republican Senators—Ted Cruz of Texas, Lindsey Graham of South Carolina and Mike Lee of Utah—reportedly met with former President Donald Trump’s impeachment defense attorneys, according to Cruz and Trump attorney David Schoen.
Schoen called the three senators “very friendly,” a comment which raised eyebrows seeing as senators are often thought to serve as impartial jurors during impeachment trials. In other criminal and civil trials, jurors are forbidden from meeting with or expressing overt favor to lawyers involved in the case.
Schoen claimed that the senators met with them to ensure that they were “familiar with procedure” before offering their opening arguments on Friday in rebuttal to the House impeachment managers’ case, CNN reported. Schoen considered the mid-trial meeting to be appropriate, adding, “I think that’s the practice of impeachment… There’s nothing about this thing that has any semblance of due process whatsoever.”
However, Cruz said that the meeting wasn’t just about procedure, but rather a chance for “sharing our thoughts” about the defense’s legal strategy “in terms of where the argument was and where to go,” The Hill reported him as saying.
“I think their job is to make clear how the house managers have not carried their burden of proof. They have not demonstrated that the president’s conduct satisfies the legal standard of high crimes and misdemeanors,” Cruz said.
Newsweek reached out to the House impeachment managers, Democratic Reps. Jamie Raskin, David Cicilline, Ted Lieu and Madeleine Dean, for comment.
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In a tweet published Thursday evening, Cruz also refuted the idea that the senators are jurors, citing a January 2020 Washington Post opinion article by former Democratic Iowa Senator Tom Harkin as proof.
Harkin’s article points to Article III of the Constitution, which states, “The trial of all crimes, except in cases of impeachment, shall be by jury.” Unlike jurors, Harkin pointed out, senators can ask questions, raise objections, discuss the case outside of the courtroom with interested parties and also impose a sentence.
“The Senate sitting in impeachment is a court—a court composed of 100 judges, not 100 jurors,” Harkin wrote. “As judges, they have to make decisions on a wide range of issues—the facts, the public good, how the actions taken by the president impact our democracy, fairness, history, proportionality and the Constitution.”
Before impeachment trials begin, senators are sworn in. The oath, administered by Chief Justice John Roberts, goes: “Do you solemnly swear 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?”
But despite this pledge, impeachment remains an “inherently legal process”, according to Robert Peck, founder and president of the Center For Constitutional Litigation. As such, “senators are presumed to have political allegiances and even political interests that may affect their votes,” Peck told WUSA.
“[The Senators] were directly affected by the attack on the Capitol and are witnesses to critical facts,” Peck continued. “They would not normally be able to serve as jurors in a real trial, but are the only people assigned responsibility in the Constitution to try an impeachment.”
Both Republican and Democratic senators have pointed to comments made by members of the opposite party as evidence that they intend to break the oath of impartiality.
But even if a senator is seen as having broken their impartiality pledge, they only face one of two consequences: being voted out of office by their constituents or being expelled from Senate by a two-thirds majority vote.