Objection! Senators are not jurors!

We wish to lodge an objection on behalf of all past, present and future jurors who are following the impeachment proceedings. Some Senators themselves, other members of Congress and the media keep referring to the Senators as “jurors”. One aim of the Civil Jury Project is to honor those who serve as jurors in the courts throughout the land. To label the Senators “jurors” is both inaccurate and damaging to our jury system. The differences between real jurors and the Senators are stark.

In a January 18, 2020 Op-ed in the Washington Post, former U.S. Senator Tom Harkin (D-Iowa) asked his former colleagues and the media to stop referring to the Senators sitting in the Trump impeachment trial as “jurors”. This was not the first time he had taken this position. In 1999, he rose on the Senate floor to object to the term during the impeachment trial of Bill Clinton. U.S. Supreme Court Chief Justice William Rehnquist sustained the objection.

Sen. Harkin’s argument not only is based upon Chief Justice Rehnquist’s ruling in the Clinton impeachment trial. He also cites Article 3 of the U.S. Constitution which states, “The trial of all crimes, except in cases of impeachment, shall be by jury;”

We agree with former Senator Harkin from the perspective of real jurors. Real jurors are washing dishes, mowing lawns and paying bills on the day the jury summons arrives in their mailboxes. Suddenly, their lives change. Employers need to be told, childcare arranged and vacation plans changed. For many, income is lost.

For the Senators, this is their job. This is what they signed on for.

The jurors arrive at the courthouse with other citizens from their community. Each is given a badge identifying them as a juror. They file into a courtroom and a bailiff asks all to rise as a show of respect for them. Then starts a selection process which takes hours or, in some cases, days. They answer questions designed to determine if they can be fair and impartial. If chosen to serve, they take an oath to truly and fairly decide the case before them.

In contrast, the Senators already are chosen. No party on either side of the impeachment may excuse them for bias or for any cause for that matter.

The judge tells the jurors to speak to no one about the case while it is pending. Violation of that rule could result in a contempt charge and appropriate sanctions. Senators can and do speak to anyone they desire and the media seeks them out. Verdict with Ted Cruz (R-Texas) podcasts the Senator’s opinions.

The judge tells the jurors to not make any decision until all evidence is presented, arguments are made and instructions are given by the judge. Some Senators say their minds were made up even before the current impeachment proceedings began. Some Senators do not want to hear from any witnesses.

Therefore, it is not accurate to call these Senators “jurors”. It is also a disservice to both the title of “juror” and to those jurors past, present and future who have dutifully fulfilled their duty as citizens of this great country.

In survey after survey that we have done, jurors report approaching jury duty with a bit of trepidation. However, after having served, an overwhelming majority felt pride in doing so. Many expressed a new appreciation for our system of justice.

In addition to voting, jury service is the closest our citizens come to our founders and the Constitution they crafted. No other country places this much trust in its citizens.

The Senators may be many things, but they are not jurors.

                                                          Stephen D. Susman, Executive Director

                                                          Hon. Mark A. Drummond (Ret.), Judicial Director
                                                          Civil Jury Project at NYU School of Law