06:07 Friday, Jan. 17, AD 2020 GMT
I argue here that, contrary to what some in the academy and media argue, Senate Majority Leader McConnell does not need to recuse himself on account of certain comments that he made previous to the Senate impeachment trial.
On Dec. 12, 2019, prior to the House passing the Burrocrat’s two articles of impeachment, and prior to Speaker Pelosi handing them off to the Senate, McConnell said this in a interview with Sean Hannity, concerning a Senate impeachment trial that had not yet begun:
Sean Hannity: ... Let’s assume for a minute that the House goes forward with this impeachment, and it’s over to the Senate. Walk us through how this process works and the options available, and what you see happening and how you see this going down.
Sen. McConnell: First as you’ve pointed out to your viewers frequently, the Democrats have been wanting to do this for three years. The first headline in the Washington Post, before the President was inaugurated, was they were going to impeach him. Well they finally got around to it. And we assume we’re going to see two articles of impeachment, both of them pretty weak stuff, coming over to us, and your question is, what happens then.
Under the rules of impeachment, the Senate then turns to it, has no option but to turn to it, and it’s the sole business until we finish. How we can impact that really is just with fifty-one votes.
The Chief Justice is in the chair. I don’t expect the Chief Justice to try to tilt the playing field either way. We’ll listen to the opening arguments by the House prosecutors. We’ll listen to the President’s lawyers respond. And then we’ll have to make a decision about the way forward. And everything I do during this I’m coordinating with the White House Counsel. There will be no difference between the President’s position and our position, as to how to handle this, to the extent that we can. We don’t have the kind of ball control on this that a typical issue, for example, comes over from the House, if I don’t like it, we don’t take it up. We have no choice but to take it up, but we’ll be working through this process, hopefully in a fairly short period of time, in total coordination with the White House Counsel’s Office, and the people who are representing the President in the well of the Senate.
Hannity: So, I’ve got to believe that the federal rules for the admission of evidence would apply here with the Chief Justice in charge, and that would mean there would be no hearsay evidence be allowed, and that would probably mean, well, you might have one or two opinion people, fact or experts. But when we watched this process unfold in the House, especially in the Schiff show, everyone was a hearsay or an opinion witness. The one fact witness said, oh the President said he wants nothing, no quid pro quo. That was the only fact witness that I saw. So that would be Ambassador Sondland. Would that be in your view how the federal rules of evidence would apply here?
McConnell: Well exactly how we go forward, I’m going to coordinate with the President’s lawyers. So there won’t be any difference between us on how to do this. You raised the issue of, what if you have witnesses. The President’s counsel may or may not decide they want to have witnesses. The case is so darned weak coming over from the House. We all know how it’s going to end. There’s no chance the President’s going to be removed from office. My hope is that there won’t be a single Republican who votes for either of these articles of impeachment. And Sean it wouldn’t surprise me if we got one or two Democrats. It looks to me over in the House, the Republicans seem to be solid, and the Democrats seem to be divided.
Hannity: So you will allow, let’s assume it comes over to the Senate. You’re obligated to take it up. I think everybody understands that. Whoever the House chooses to present their case, they will present their case, however long period of time that takes. There is some dispute, and actually I could probably be persuaded on either side, which for me is a rare thing, Senator. And that would be, okay, a lot of people would like to bring in Adam Schiff, Hunter Biden, Joe Biden. I think I’m more inclined to agree with Senator Graham on this. It’s tempting. And I do believe that all of those things need to be looked into. There are a lot of real questions here. But I don’t know if that would be the appropriate forum. Once you would have the fifty-one votes at that point to end this, which, again, very weak case, I think it would be smart to do so. Where would your inclination be?
McConnell: Yeah, again, I’m going to take my ques from the President’s lawyers. But yes, if you know you have the votes, you’ve listened to their arguments on both sides, and believe the case is so slim, so weak, that you have the votes to end it, that might be what the President’s lawyers would prefer. And you can certainly make a case for making it shorter rather than longer, since it’s such a weak case. (Hannity’s interview)
The emphases above are mine.
On Dec. 16, 2019, Northwestern University Law Professor Steven Lubet wrote that McConnell’s statement was an “outright rejection of neutrality”, that McConnell “has declared an intention to disregard the Senate’s prescribed oath”, and that McConnell “appears to have boldly renounced open-mindedness itself on the impeachment court...” (Lubet). None of Lubet’s comments reflect a consideration of the big picture of injustice and justice.
The Chief Justice and the Senators swear or affirm as follows:
Form of oath to be administered to the Members of the Senate and the Presiding Officer sitting in the trial of impeachments
``I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of ------ ------, now pending, I will do impartial justice according to the Constitution and laws: So help me God.' ' (from the Procedure and Guidelines)
The above applies to “all things appertaining to the trial of the impeachment of” President Trump. And McConnell said that he would conduct the process the way that the White House wants. McConnell was referring to procedural issues, for instance, whether or not to allow House Managers to call witnesses, and whether or not to delve into related issues, such as VP Biden threatening to withhold aid from Ukraine, if Ukraine did not fire a prosecutor that might investigate money laundering by Bursima Holdings, and Hunter Biden’s paid position on Burisma’s board. Does McConnell’s promised deference to the White House on procedural issues constitute a conflict with an oath that he had not yet taken to “do impartial justice” in a trial that had not yet commenced?
No. McConnell merely promised that the Senate procedure would restore Justice and fairness to the unjust and unfair process by which the Burrocrats impeached the President.
The House impeached the President in one of the most abominable, unjust and unfair procedures that America has ever seen. For instance, House Burrocrats did not give Republicans a day to call witnesses or refute charges. They held some of the hearings in secret, with no media permitted, only Committee members. Rep. Schiff instructed a witness to not answer some questions under Republican cross-examination. Chairman Nadler permitted Republicans only one legal expert, and the Burrocrats three. Before the Burrocrats even voted on their articles, everyone knew that the process was unjust and partisan in the extreme. I argued, and still do, that the impeachment is unworthy of a hearing in the Senate; it has no merit. Everyone felt that the scales of justice needed to be restored to level. And that’s all that McConnell said that he would try to do.
How does one rebalance a process that the Burrocrats intentionally mis-balanced, with bias and injustice against the President? One plans to defer to the President and his team as much as possible. That is not showing partiality to the President. That is restoring decency, fairness, justice and juridical balance to a wretched, unfair, unjust and deliberately mis-balanced process.
The Burrocrats want everyone to believe that it is proper, right and just to treat the President unfairly and disparagingly, as if he were dog doo. That’s because that is how they in fact treated him, and they want their malign treatment of him to be interpreted as just and righteous. It wasn’t just or righteous. It was abominable. McConnell was merely suggesting that he was going to try to address and correct injustices and wrongs that the Burrocrats perpetrated against Trump. Again, that’s not being partial. That is just trying to restore decency where the Burrocrats trampled it.
The Burrocrats have demonstrated that they do not know how to be decent toward Republicans that oppose them. They know only how to slash, burn and destroy the GOP opposition, and try to pass it off as righteousness. It isn’t righteousness. It’s donkey manure masquerading as righteousness. And I for one am glad that the Senate Majority leader has working senses of evil and good, and of injustice and justice. The Burrocrats hate and oppose any significant person that does, because they want injustice and unrighteousness to reign, and to call it justice and righteousness.
Professor Lubet makes an interesting point: that Senators at an impeachment trial are more than mere jurors; they are like judges trying the case. But he is mistaken to infer that McConnell cannot “do impartial justice”.
No one can “do impartial justice”, unless they have senses of unfairness and fairness, unrighteousness and righteousness, injustice and justice. McConnell has demonstrated that he has those senses. That is why we have every reason to believe that he will “do impartial justice”. And that is why he can take the oath and act as a judge without qualms of conscience, maugre the fact that the academy and media have been trying for a month now to lay a guilt trip on him.
Finally, the accused in these proceedings and connivings deserves a say. Today, he tweeted,
I JUST GOT IMPEACHED FOR MAKING A PERFECT PHONE CALL! (@realDonaldTrump)
How unreasonable the Burrocrats have been to impeach a President over the nominal fulfilment of his responsibilities as Chief Executive.