Impeachment Trial: Eyewitness to a Charade

Adela Cortina, one of the most important moral philosophers in Spain, and a member of the Royal Academy of Moral and Political Sciences notes that corruption— etymologically related to the […]
Published on March 15, 2021

Adela Cortina, one of the most important moral philosophers in Spain, and a member of the Royal Academy of Moral and Political Sciences notes that corruption— etymologically related to the idea of “destruction”—is encouraged by the weakening of the so-called internal good, described as the reason that justifies the existence of any given profession. Since judges exist for the essential goal of delivering justice to their fellow citizens, a vigorous ethical commitment should constitute a genetic trace of their professional code.1

The world had front row seats to the judicial proceedings in the second impeachment of former president Donald Trump recently. There will be countless assessments of the trial, and there may be just as many opinions on the efficacy and effectiveness of the proceedings. The importance of the post-trial deliberations should not be underestimated, not only for its political consequences but also for its impact on the average observer’s (meaning not familiar with or trained in law or jurisprudence) perception of the legitimacy of the social contract between them and their institutions of justice.

It would be easy for those of us outside the United States to dismiss this experience as just another voyeuristic pastime during COVID-19, but that would be a mistake. These proceedings will have impacted the integrity of democracy, the legitimacy of governance, and institutions of human rights and justice. These proceedings will draw parallels, provide examples, and set precedents that will impact faith in the systems of civil society and justice; or as Cortina puts it, the belief that the “internal good” justifies the existence of such institutions and professions. 

The Canadian Judicial Council’s “Ethical Principles for Judges” states that:

Judges should also recognize that not everyone is familiar with these concepts and their impact on judicial responsibilities. Public education with respect to the judiciary and judicial independence thus becomes an important function, for misunderstanding can undermine public confidence in the judiciary.2

“Ethical Principles for Judges” is a reflection of our expectations of our judges and our judicial system. What most people will have observed during the course of the impeachment trial is corruption and adulteration of the essential goal of delivering justice.

To be blunt, the impeachment trial represented a mockery of the internal good expected by an ordinary observer. The rules were vague, negotiable, and even inconsistent, and observers of these proceedings, reflected through the broad spectrum of the media, will have found them speculative and lacking clarity.

We observed a trial at which the chair is a Democratic senator who voted to move forward with it; he is not the Chief Justice of the U.S. Supreme Court. The senator has himself been an outspoken critic of Trump.

The case that the House managers (prosecutors) presented was based in large part on the experiences (evidence) of the jurors themselves, both Democrats and Republicans. This would be like choosing a jury where the accused’s fate is to be determined by twelve jurors who witnessed the incident for which the accused is brought before the bench, yet the adjudicator has already told the jurors, the accused, and the public that the accused is guilty before commencing the proceedings. 

Even this may somehow be accepted and explained if we were to believe that the adjudicator and the jurors are capable of distancing themselves from their personal preferences, biases, and previous opinions to dispassionately execute their duties as impartial jurists under oath.  

Instead, we have witnessed jurors who have made the sanctity of the oath worthless. They not only declared, but continued to exhibit that their minds were made up, even after taking an oath before everyone watching and before God. Many of the jurors did not even pay attention to the evidence being presented, or simply vacated their seats and left the trial chamber entirely. Some senators, having committed to the responsibility of their office as jurists, even met with the defence counsel to collaborate in the trial process.

The case that the House managers presented was, if nothing else, prima facie. This was even confirmed by the previous Senate minority leader, who voted against impeachment and then later confirmed Trump’s guilt.

None of these absurdities fits any legitimate expectation of a legal proceeding, let alone a trial of the most powerful person on the planet.

Canadians, just like people in any legitimate democracy, expect that a judge must be, and be seen to be, free to decide honestly and impartially on the basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone.

Canadians expect that a judge’s first qualification is the ability to make independent and impartial decisions.

Canadians also expect that a judge’s duty is to apply the law as he or she understands it without fear or favour, and without regard to whether the decision is popular or not, which is a cornerstone of the rule of law. They expect that judges must, of course, reject improper attempts by litigants, politicians, officials, or others to influence their decisions, and that judges take care that communications with persons do not raise reasonable concerns about their independence.

The impeachment trial met none of these expectations.

The failure here was not of the participants, of the House of Representatives, the Senate, or the House managers; it is a flaw in the systemic structures of the United States which makes it impossible to effect an impartial and independent trial of the highest office in the nation. 

Instead, the impeachment proceedings laid bare the limitations of a system incapable of upholding and ensuring the independence, shared responsibility, and accountability of the executive, legislative, and judiciary branches. By failing to do so, the proceedings made a mockery of the impeachment, the legitimacy of the judicial system, and of the role and scope of the three pillars of democratic governance in the United States. Consequently, these proceedings have cast a dim shadow on the legitimacy of the trial process and judicial system in that country.

The rule of law and the judiciary’s independence rely primarily upon public confidence. Lapses and questionable conduct by judges tend to erode that confidence.3 Whether the observer was a Trump sympathizer or wanted to see him impeached, whether a Republican or Democrat, this process has handed everyone a loss; with the laying bare of the system’s limitations and the partisanship, the administration of the oath has been diminished. Public acceptance of, and support for, court decisions depends upon public confidence in the system’s integrity; this integrity has been damaged.

Canadians, just like people in any legitimate democracy, expect judges to make every effort to ensure that their conduct is above reproach in the view of reasonable, fair-minded, and informed persons. They expect judges, in addition to observing their own high standard personally, to encourage and support its observance by their colleagues. And they know that absent expectations of a higher standard of conduct, the judiciary cannot expect to continue to warrant public confidence on which deference to judicial rulings depends, nor for it to exercise its own independence in its judgments and rulings.

As Cortina cautioned: corruption—etymologically related to the idea of destruction—is encouraged by the weakening of the internal good, described as the reason that justifies the existence of any given profession. As mentioned above, since judges exist to accomplish the essential goal of delivering justice to their fellow citizens, a vigorous ethical commitment should constitute a genetic trace of their professional code.4 

As the nineteenth-century American judge Learned Hand once said: 

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.5

What we have observed in the impeachment hearings, sadly, has been more akin to a theatrical reality show than a solemn proceeding of justice. The impeachment was a performance for the court of public opinion rather than the pursuit of justice in law. But in the end, it is the people who are the victims and who are most at jeopardy. The fact that this charade was played out before the court of public opinion is the one aspect of the entire process that provides hope.

The reform movement in the United States now has even more work to do, from the grassroots to the highest levels of trials at the Senate.

But let us not be complacent, for we too take too much for granted in this country.

 

Anil Anand is a research associate with the Frontier Centre for Public Policy. 

Photo by Jon Tyson on Unsplash.

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  1. Judge José Igreja, “Matos Judicial Integrity: A Fundamental Commitment.” https://www.unodc.org/dohadeclaration/en/news/2017/08/judicial-integrity-a-fundamental-commitment.html
  2. Canadian Judicial Council, “Ethical Principles for Judges,” Catalogue Number JU11-4/2004E-PDF ISBN 0-662-38118-1. https://cjc-ccm.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf
  3. Ibid.
  4. Judge José Igreja, “Matos Judicial Integrity: A Fundamental Commitment.” https://www.unodc.org/dohadeclaration/en/news/2017/08/judicial-integrity-a-fundamental-commitment.html.
  5. RayJenkins, “Learned Hand and the Spirit of Liberty,” Baltimore Sun, May 18, 1994. https://www.baltimoresun.com/news/bs-xpm-1994-05-18-1994138163-story.html.

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