Are The Senators In The Impeachment Trial 'Jurors' — Or Something Else?

Jan 22, 2020
Originally published on January 22, 2020 7:51 pm
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Anyone following President Trump's impeachment trial has likely heard the 100 senators sitting in judgment described as jurors. But 21 years ago, the last time such a trial took place, one member of the Senate strongly objected to that term. Senators, he argued, are not jurors. The presiding chief justice agreed. NPR's David Welna has the story.

DAVID WELNA, BYLINE: It was day two of opening arguments in the 1999 impeachment trial of President Bill Clinton, and House Manager Bob Barr, a Georgia Republican, was addressing the assembled senators.

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BOB BARR: We urge you, the distinguished jurors in this case, not to be fooled.

WELNA: That prompted the first objection in the Senate trial overseen by Supreme Court Chief Justice William Rehnquist. It came from Iowa Democratic Senator Tom Harkin.

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TOM HARKIN: Mr. Chief Justice, I object to the use and the continued use of the word jurors.

WELNA: The Constitution, Harkin noted, specifically says only the Senate, not the courts, has the power to try impeachments, and that all crimes shall be tried by jury except when it comes to impeachment. Alexander Hamilton, he added, wrote that no jury should stand between the judges and the accused in an impeachment trial.

Why does it matter if senators are called jurors? Because, Harkin argued, senators in an impeachment trial have many powers and attributes that a regular juror would not have. And the general public needs to understand the difference.

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HARKIN: Regular jurors are not supposed to know each other - not so here. Regular jurors cannot overrule the judge - not so here. Regular jurors do not decide what evidence should be heard or the standards of evidence, nor do they decide on witnesses or what witnesses shall be called - not so here. Regular jurors do not decide when a trial is to be ended - not so here.

WELNA: And that prompted Chief Justice Rehnquist to issue his first ruling of the Clinton impeachment trial.

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WILLIAM REHNQUIST: The chair is of the view that the senator from Iowa's objection is well taken, that the core - the Senate is not simply a jury. It is a court in this case. And therefore, counsel should refrain from referring to the senators as jurors.

WELNA: Twenty-one years later, Rehnquist's ruling seems all but forgotten.

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RICHARD SHELBY: We'll be sitting as, you know, George, as - kind of like jurors.

WELNA: That's Alabama Republican Senator Richard Shelby talking to ABC's George Stephanopoulos on Sunday. Shelby was at Clinton's impeachment trial. So was Senate Democratic leader Chuck Schumer, who said this last week to reporters.

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CHUCK SCHUMER: We've all been sworn in by the chief justice of the United States to serve as judges and jurors in the impeachment trial of President Trump.

HARKIN: Well, I can tell you if I were there and they started referring to us as jurors, I certainly would rise to object.

WELNA: That's now-retired Senator Harkin on the phone from his winter retreat in the Bahamas. Harkin says the late Chief Justice Rehnquist was very clear - the Senate is not a jury.

HARKIN: He referred to the Senate sitting in impeachment as a court. Who sits in a court? That's the judge. So really, there are 100 judges sitting there, not 100 jurors.

JEFFREY ENGEL: If I was making the argument, I'd refer to them as senators.

WELNA: That's Jeffrey Engel. He directs the Center for Presidential History at Southern Methodist University. Engel, who co-authored the book, "Impeachment: An American History," says senators simply should be called what they are in this trial - senators.

ENGEL: First of all, I think that's safest, but it's also most accurate because they are not jurors, and they are not judges. The judge, of course, has to follow different rules set up by the Federal Rules of Procedure, whereas this court, this Senate court, can do whatever heck it wants.

WELNA: Which, for at least some, includes ignoring Rehnquist's admonition not to refer to senators as jurors.

David Welna, NPR News, Washington.

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