Is Recusal in Order?

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Senate Majority Leader Mitch McConnell has greater reason to recuse himself from participation in the Senate impeachment trial than Jeff Sessions had for recusing himself from the DOJ investigation of Russian interference in the 2016 election.

An online dictionary defines ‘recuse’ as “the withdrawal of a judge, prosecutor, or juror from a case on the grounds that they are unqualified to perform legal duties because of a possible conflict of interest or lack of impartiality.”

Until the day Mr. Sessions made his announcement, the terms ‘recuse’ and ‘recusal’ were unfamiliar to most Americans who work outside the court system. Though Mr. Sessions’ decision angered the president, it was the right thing to do. Senate Majority Leader McConnell should do the same.

U.S. Senate floor

If public perception is nine-tenths of reality, a Senate trial that is not a trial will deepen and spread the cynicism that threatens the survival of this Constitutional Republic. Unless the Senators act like Senators willing to lay aside partisan rancor for the sake the greater good, the distrust in America’s foundational institutions and democracy itself will widen further into a chasm that no one can cross. We need to believe that our better angels have not left us.

Senator McConnell’s view that impeachment is a partisan sham is a matter of public record. Sen. McConnell has established the rules for the trial in close collaboration with the White House, which seems unusual. He has decided there will be no witnesses. The trial will be short. The verdict appears to be in before the trial begins,

No trial is more important than an impeachment trial. The Senate is composed of women and men as flawed as the rest of us. But is it too much to ask that the Senators approach this moment of crisis the way American jurisprudence expects a jury of peers to assess the evidence before coming to verdict? Prospective jurors for a trial on Main Street who have come to conclusions of guilt or acquittal are dismissed during voir dire as unfit for jury duty.

Members of the Senate will serve as the only jurors, after swearing an oath many Senators cannot take in good conscience: “I solemnly swear [or affirm, as the case may be] that in all things appertaining to the trial of the impeachment of [the person being impeached], now pending, I will do impartial justice according to the Constitution and laws: So help me God.”

This oath taken before an impeachment trial is secondary to the Oath of Office to “support and defend the Constitution against all enemies foreign and domestic.” There is a remedy for any Senator who cannot honestly swear the oath “to do impartial justice. . . . So help me God” in an impeachment trial. It’s called recusal.

A jury and trial that are shams will stab at the heart of who we thought ourselves to be. Pogo will again prove right. But this time, the consequences are odious. We will have met the enemy and discover he is us.

Gordon C. Stewart. Chaska, MN, December 19, 2019