On Thursday afternoon, Sens. Ted Cruz (R-Texas), Lindsey Graham (R-S.C.), and Mike Lee (R-Utah) met with David Schoen, one of the lawyers representing former President Donald Trump in the Senate impeachment trial. Legacy media outlets reported the story as a “gotcha!” moment, and leftists on Twitter suggested the meeting was improper, but Cruz explained that it was completely legitimate.
CNN claimed that Cruz, Graham, and Lee “were spotted going into a room in the US Capitol that Trump’s lawyers were using to prepare for their arguments.” The CNN report claims, “Some senators view themselves as impartial jurors during impeachment trials, while others lend a hand to their party’s side.” CNN tweeted the story with a description of senators as “jurors.”
J.M. Reiger, the Washington Post‘s video editor, shared a video of Graham leaving the meeting, and noted that Cruz and Lee “were also spotted entering the meeting shortly before 4:30 p.m.”
Sen. Lindsey Graham (R-S.C.) to reporters after leaving a roughly 70 minute meeting with Donald Trump’s impeachment lawyers:
“See you tomorrow.”
Ted Cruz and Mike Lee were also spotted entering the meeting shortly before 4:30 p.m. pic.twitter.com/vyuLzIvAAx
— JM Rieger (@RiegerReport) February 11, 2021
“Lindsay, Cruz and Mike Lee met with Trump’s lawyers today to strategize. WTF. I thought they were supposed to be impartial jurors,” The View co-host Joy Behar tweeted. “I guess I should never expect honest behavior from these corrupt so called Senators. They don’t deserve the title.”
Molly Jong-Fast, editor at large at The Daily Beast, implicitly condemned the senators’ actions by claiming that the senators are “supposed to be jurors.”
Berkeley professor and former Labor Secretary Robert Reich also referred to senators as “jurors.”
Yet Cruz effectively eviscerated these claims of impropriety.
“CNN is no longer a news organization. They’re Dem propagandists,” the senator tweeted. “Facts they are ignoring: (1) senators are NOT jurors, as Dem Sen. Harkin clarified. (2) Schumer repeatedly confers w/ House managers, as always & fully appropriate.”
Cruz is correct. In January, former Sen. Tom Harkin (D-Iowa) took to The Washington Post to explain that senators are not “jurors.” Harkin explained that he objected to House members calling him and his fellow senators “jurors” during the Senate impeachment trial of Bill Clinton in 1999. Chief Justice William H. Rehnquist upheld his objection, saying, “The Senate is not simply a jury. It is a court in this case. Therefore, counsel should refrain from referring to the senators as jurors.”
Harkin cited Article III of the Constitution, which states, “The trial of all crimes, except in cases of impeachment, shall be by jury.” The Founders did not consider the Senate to be a jury in impeachment trials.
As the attacks against Cruz, Graham, and Lee demonstrate, this is an important point. Harkin explained why:
Consider also that jurors in a criminal trial cannot ask questions, cannot raise objections and cannot discuss the case outside the jury box with the press or interested parties; jurors only try the facts as presented. And in most cases, they cannot impose a sentence — that is left to the judge.
Senators sitting in impeachment, however, can ask questions, raise objections (as I did) and discuss the case with members of the press or anyone else. Senators can take into account more than just the facts presented by the House. And, if the subject of impeachment is convicted, they do impose a sentence — which, in the case of impeachment, means removal from office.
Harkin explained the implication of Rehnquist’s ruling: “The Senate sitting in impeachment is a court — a court composed of 100 judges, not 100 jurors.”
Senators are not bound to the strict rules of impartiality that jurors must follow. Rather, they are free to meet with the legal teams both for and against impeachment.
CNN and The Washington Post have not published “Gotcha!” stories about Senate Majority Leader Chuck Schumer (D-N.Y.) meeting with House impeachment managers, but if the “jurors” argument were true, that would be just as improper as Cruz meeting with Schoen.
There was nothing improper about Cruz, Graham, and Lee meeting with Trump’s attorneys, but that doesn’t stop Democrats from making “jurors” trend on Twitter.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.