McConnell Need Not Recuse
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.
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
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.