Regardless of president or party, there is no fair trial in the US Senate
Whatever else might be happening in the US Senate trial of President Donald Trump, and whatever purpose the Constitution of the US intended with a post-impeachment jury trial, it is not a fair jury trial. It cannot be, at least as that term is defined and implemented in other American courtroom contexts. The lack of fairness is not because of all the controversy surrounding President Trump’s impeachment. The lack of fairness is inherent in the process. The same absence of fairness obtained in President Bill Clinton’s and President Andrew Johnson’s instances, too.
Not a single one of the jurors in the US Senate trial of a president, that is, not a single one of of the US senators from any political party, would be seated if this trial were conducted like any other jury trial. First of all, in those trials, both the prosecutor and the defense attorney have the right of peremptory challenges to prospective jurors. Not so in the US Senate trial. Of much greater pertinence, in any other trial all of the potential jurors are scrutinized for bias for or against the defendant. In this regard they are even scrutinized for basic knowledge of the case in advance of the trial if it is a controversial case. Trials are relocated far from the location of the alleged crime merely because of a potential jury pool’s extensive knowledge of a case via the media.
Now, not a single US senator sitting as a juror in the Trump trial, whether Republican or Democrat or Independent, would or could pass this bias test. They know the case extremely well, even if not in every single detail. And who among these 100 senators would claim not to have a strong opinion about this case in advance of trial? None, of course.
Even if a current US senator would claim that he or she had not made up his or her mind whether to convict or acquit President Trump, that claim, even if it passed the believability test, which is highly unlikely, would still not meet the basic criterion for seating a juror. That criterion is the absence of bias concerning the alleged criminal act under adjudication. There is not a single US senator who has not already expressed himself clearly on the nature of the crimes that the president — Johnson, Clinton or Trump — is accused of. Every single US senator’s bias is out there for all to see.
All this is not to say that the House impeachment managers and the president’s defense attorneys have not worked hard to gather evidence and to present their strongest case with their strongest eloquence. Nor is all this to say that there is necessarily a better way to try a president for high crimes and misdemeanors. But let us not use this term, “fair trial,” either to qualify or to disqualify Trump’s trial. This trial does not, and cannot, meet the standards of fairness in other American jury trials that are not tied inextricably and essentially to a political context.
Before and during the current US Senate trial of Trump, voices on both the Republican and Democratic sides have invoked standards used in American courtrooms to object to one or another perceived deficiency in Trump’s trial.
Without passing judgment on any particular claim, it must be stated that however solemn a presidential trial is, however impartial Chief Justice Roberts is, and however extensively this trial’s procedures match those in the standard American courtroom, this US Senate trial will not be a fair jury trial. The essence of the fairness of a trial is judgment by a jury of one’s peers who bring to the trial no bias, one way or the other, toward the defendant. That is precisely what is lacking — in the fullest amplitude — in a US Senate trial of a president of the US.
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