Legal Scholars on a Senator’s Oath

February 12, 2021

Dear Members of the United States Senate,

Soon you will be charged with perhaps the most consequential vote you will take in your time as a United States Senator. It will almost certainly be the one you will be most remembered for.

Donald J. Trump stands accused of inciting an insurrection that resulted in the deaths of at least two members of the Capitol Police, the sacking of the United States Capitol, and the endangerment of many more lives. The allegations, if proven, undoubtedly amount to a violation of his presidential oath and his duty to faithfully execute the law.

You will soon sit in judgment of his conduct, faced with the choice of whether to convict him. We, the undersigned legal scholars, experts, and former public officials, send this letter to remind you of the obligations imposed by your oath of office to weigh the evidence — not as Republicans or Democrats, but as impartial officials charged by the Framers with a duty to preserve our democracy and uphold the rule of law.

When you joined the United States Senate, you solemnly swore to “defend the Constitution of the United States against all enemies, foreign and domestic” and to “faithfully” discharge the duties of your office. Drafted in the shadow of the horrors of insurrection during the Civil War, this oath — similar to the oath taken by our soldiers, sailors, and aviators that obliges them to risk their lives when necessary to defend the rule of law — requires strict adherence to the obligations placed on you by the Constitution, regardless of the political costs you might pay.

And you now have taken a second oath to do “impartial justice according to the Constitution and law, so help you God” in this impeachment trial. This oath to do impartial justice goes even further than the one you took upon joining the Senate — it means that you now sit in the Senate, not as Republicans and Democrats foremost, but as faithful guardians of the rule of law.

The Framers of the Constitution trusted you to fulfill your constitutional duties. As Alexander Hamilton wrote in Federalist №65, Senators are best positioned to do the work of an impeachment trial, weighing the evidence of “the real demonstrations of innocence or guilt.” “The [constitutional] convention, it appears, thought the Senate the most fit depositary of this important trust,” because Senators “will be most inclined to allow due weight to the arguments.” And, importantly, the Senate is the body most likely to be “sufficiently dignified” and “sufficiently independent” to fulfill this duty.

The question of constitutional jurisdiction — whether the Senate has authority to try a former president — is distinct from the merits of the question of guilt or innocence of the impeachment offense for which former President Trump is charged. The former President chose to raise a jurisdictional argument in a motion to dismiss the trial. This body, exercising its considered judgment, determined that the Senate does have jurisdiction to try this case and so resolved the issue. And that determination was correct, as the Constitution’s text and structure, history, and precedent make clear that the House may impeach and the Senate may convict former officers. Now that the Senate, as a collegial body, has ruled on the jurisdictional question, individual Senators should respect and honor that determination of the Senate as a body, even if they might have disagreed with it as an initial matter.

Having considered and properly resolved that question, you now have a duty — from your two oaths — to weigh the evidence before you. You should not rely solely on a procedural argument that has already been voted down by this body, and certainly not on legal sophistry. The question before you now, and to which history will record your answer, is: did Donald J. Trump engage in “high Crimes and Misdemeanors”? In other words, you must decide whether he engaged in an abuse or violation of the public trust grave enough to warrant conviction and possible disqualification from holding future office.

You must decide impartially based on what you have heard and seen: Does the evidence show that President Trump violated his oath of office and his duty to take care that the laws be faithfully executed by fomenting violence against Congress in an effort to extend his grip on power? Does the evidence show that President Trump attempted to subvert and obstruct the election results? Does the evidence show that President Trump imperiled the lives of Vice President Pence and members of Congress, or that he then disregarded his duty to come to their aid? Does the evidence show that President Trump undermined our national security?

If the answer to any one of those questions is yes, you should vote to convict, and do so with the recognition that President Trump has no First Amendment defense to any of the charges against him, as all reasonable scholars and jurists would conclude. The First Amendment protects the freedoms of speech, press, religion, assembly, and petition; it does not grant the president the freedom to betray his oath of office by attempting to undermine the peaceful transfer of power by misleading the public about an election and encouraging a mob to terrorize the Congress so as to obstruct the certification of his successor’s election victory.

* * *

Our republic was founded on the idea that government must derive its power from the consent of the governed. And since our founding, Americans — at Gettysburg, at Normandy, at Selma, and now in the halls of the United States Capitol — have fought and died so that “government of the people, by the people, for the people, shall not perish from the earth.” Those American heroes stayed true to their oaths to the Constitution and did not waver when their dedication to the Constitution and the rule of law required them to make the ultimate sacrifice. Capitol Police Officer Brian Sicknick, and surely many of his colleagues who defended the Capitol on January 6, voted for President Trump and would have preferred that Congress were assembled to certify a different electoral result. But they did not waver in their duty to defend the Constitution against enemies foreign and domestic. It is now your turn to honor your oath as you weigh the evidence and arguments presented, even though it may require you to put our Constitution and the rule of law ahead of your own political allegiances. The eyes of the entire nation and future generations are upon you. Will you stand true to your oath?

*Institutional affiliations are listed for identification purposes only

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store