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A Senator is on record of having explicitly stated "I'm not an impartial juror" in regards to the upcoming impeachment trial in the Senate. Another Senator said, "I am trying to give a pretty clear signal I have made up my mind. I'm not trying to pretend to be a fair juror here, ...".

According to the Senate impeachment rules each Senator will be required to swear that they "will do impartial justice according to the Constitution and laws" during the trial.

Taking into consideration the earlier statement that the Senator is not (or had not the intention to be) an impartial juror, would that Senator commit perjury by swearing the aforementioned oath to "do impartial justice"? And, if so, what would be the potential consequences for that?

Rick Smith
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Wandering Wonderer
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    It would be dishonest, but I'm not sure how you'd be able to prove that he violated his oath. Are you asking more in the general sense of "would this meet the definition of perjury" or are you asking if there's any way for him to be held to account? – divibisan Dec 18 '19 at 21:24
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    @KDog The validity of the charges brought before the Senate in no way change the oath that Senator McConnell will give to Chief Justice Roberts to conduct impartial justice at the beginning of the Senate trial. That's a red herring in this discussion. – TemporalWolf Dec 18 '19 at 21:50
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    Thank you for the helpful comments and answer. To the people downvoting the question: I'd appreciate why you feel it "does not show research effort; is unclear or not useful" and what I can do to improve it (or should avoid doing in the future) - if I don't know what I am doing wrong, I won't be able to correct it. – Wandering Wonderer Dec 18 '19 at 22:45
  • [W]hat I can do to improve it (or should avoid doing in the future). The question may be seen as "discrediting a specific politician" because it mentions Sen. McConnell by name and does so in a negative light. Avoiding a name (McConnell) and a position (majority leader) would help, as would not attributing a statement to be questioned. You might consider re-phrasing this, and phrasing future questions, to avoid those issues. – Rick Smith Dec 18 '19 at 23:21
  • Just curious because I don't know the answer to this... Are any senators on record saying they will vote FOR impeachment? If so, that would also seem to be impartial. – James Dec 19 '19 at 12:34
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    @RickSmith The entire question depends on the quote itself, and the question would not make any sense without it. – JBentley Dec 19 '19 at 15:37
  • @RickSmith I don't see the problem. If the politician deserves to be discredited, why should we care? – user428517 Dec 19 '19 at 17:12
  • @ApologizeandreinstateMonica - On Politics SE, the goal is to avoid opinions like deserves to be discredited. It helps to keep questions and answers more civil. See this answer, for example. – Rick Smith Dec 19 '19 at 17:47
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    Just to clear things up: I never intended to "smear" or otherwise incite against the Senator initially mentioned. The whole situation merely really baffled and confused me, since I had a hard time reconciling the statement with being able to swear the oath (and assumed forswearing that oath would have some consequences) – Wandering Wonderer Dec 19 '19 at 21:42
  • I doubt that there are any impartial jurors in that jury. – Buh Buh Dec 20 '19 at 11:06
  • @James Did you mean "partial"? – WS2 Dec 21 '19 at 23:08
  • Let me state from the outset that I am British, but it seems to me, from what little I know of the US Constitution, that this would boil down to a question of whether the US judiciary had jurisdiction over an impeachment trial. In order to bring an action for perjury, it would, presumably, have to involve the courts and ultimately the Supreme Court. But under the doctrine of the separation of powers, would an action against an individual senator, be in breach of that separation? Where exactly would jurisdiction reside? – WS2 Dec 21 '19 at 23:19

1 Answers1

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Taking into consideration the earlier statement that the Senator is not (or had not the intention to be) an impartial juror, would that Senator commit perjury by swearing the aforementioned oath to "do impartial justice"?

No. One may do impartial justice without being an impartial juror.

And, if so, what would be the potential consequences for that?

None. Unless the other political party gained a super-majority and invoked Article I, Section 5 to expel that Senator, based on their beliefs.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

For the record,

It would appear that prosecuting a complaint under 18 U.S. Code § 1621 would require the court to review all the statements made by any Senator against whom the complaint is made. Under Article I, Section 6, such statements "for any Speech or Debate in either House, [...] shall not be questioned in any other Place" means the court cannot review those statements.

Therefore, no legal consequences.

18 U.S. Code § 1621.Perjury generally.

Whoever—
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
...
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

Rick Smith
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    It's worth noting that while protected from legal consequences, the Speech and Debate clause does not shield the Senator from consequences within the Senate. Chief Justice Roberts has a Constitutional obligation to preside over the impeachment. We can only conjecture at this point how he may decide if faced with making a decision on whether breaking the Constitutionally required Oath merits any action and, if so, what that action might be. – TemporalWolf Dec 18 '19 at 23:08
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    @TemporalWolf - When a Chief Justice presides over an impeachment trial, it is done as the presiding officer of the Senate and not as the Chief Justice of the Supreme Court. Whatever consequences may ensue from actions of Senators will be in accordance with Senate rules. – Rick Smith Dec 18 '19 at 23:15
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    Yes, that was my meaning, perhaps that was unclear. The point is he is shielded only from legal consequences, not just any consequences. – TemporalWolf Dec 18 '19 at 23:35
  • @temporalwolf The political consequences? Like Trump getting another 6 points in favorability? –  Dec 19 '19 at 17:35
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    One may do impartial justice without being an impartial juror. -- I don't see how. Those two things are inextricably linked. –  Dec 19 '19 at 17:45
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    @RobertHarvey Incorrect. For example, I can be pro- or anti-socialism while also being able to look at socialism as a concept and noting its flaws or positives. – Ian Kemp Dec 19 '19 at 18:57
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    @IanKemp I'd take with a grain of salt the pros and cons as listed by someone who says they are actively working with a socialist organization, to ensure there is no daylight between them, on what that list contains. – TemporalWolf Dec 19 '19 at 19:04
  • @RobertHarvey - It's a matter of setting aside one's partiality when circumstances require. Some circumstances are considered more important than others. Trials, in general; anti-abortion doctor performing an abortion to save the woman's life, etc.; considered more important. Of much less importance, I am partial to COBOL, it's my "go-to language" (pun intended); but I sometimes use C or C#. The perceived level of importance is very different; but the principle is the same. – Rick Smith Dec 19 '19 at 19:06
  • Doesn't Article I, Section 6 only apply to statements within Houses of Congress? "McConnell told reporters" that he's not impartial, implying it was made outside of the Senate, so wouldn't such a statement be fair game in court? – Tim Pederick Dec 20 '19 at 03:59
  • @TimPederick - No, the statements that would be allegedly perjurious would be those given in the House, after an oath or affirmation, during deliberations, which are conducted in secret, behind closed doors, with no record. Senators rarely speak during the trial phase, which is open and reported. What Sen. McConnell told reporters is irrelevant and immaterial, to borrow a legal phrase; the statement having been made before the oath or affirmation. – Rick Smith Dec 20 '19 at 04:37
  • During any type of "real" court case, McConnell's statements would allow him to be rejected for cause as a juror. Since impeachment is a political process, most of the common rules do not apply. I do think if McConnell put his thumb too much on the scales, Roberts would call him on it. And while he is free to ignore Roberts, it will never look good. – GB - AE7OO Jan 30 '20 at 12:32
  • @RickSmith So how might such an oath be broken? What would be the purpose of an oath which it was not possible to breach? In other words, what does a breach of an impeachment oath amount to? As I'm British I don't understand anything about oaths that are arcane. The only oath a Parliamentarian has to take is one of allegiance to HM the Queen - which Sinn Feiners refuse to take and as a result they are debarred from sitting. – WS2 Feb 12 '21 at 12:48
  • @WS2 - Failing to "do impartial justice" is a violation of the impeachment oath or affirmation. There is (or should be) an intimate or personal relationship between a person taking an oath and their deity or a person giving an affirmation and themselves. At a minimum, violating the terms of the oath or affirmation should be cause for existential guilt resulting from an abrogation of responsibility. However, the original purpose for the oath was to place the "fear of God" in those taking the oath. In the modern era, there appears to be a greater "fear of Voters". – Rick Smith Feb 12 '21 at 15:26