The Senate Trial of President Trump: Riddled with Conflicts of Interest

At the beginning of a U.S. Senate trial on whether to remove an impeached U.S. president from office, the senators take an oath to be impartial jurists. The impartiality is important because the senators are theoretically to listen to the partial U.S. House prosecuting managers and the president’s defense lawyers. Were the senators themselves partial, they would simply reflect the two sides that make their respective cases. In the trial of Donald Trump, I submit that few if any senators had any intention of being impartial and thus as serving as a jurist rather than as an extension of the prosecutors or defense. In effect, the verdict is left to whichever political party controls the Senate. I contend that having the Senate try presidents is problematic due to a conflict of interest.

To be sure, removal from office requires a two-thirds majority so the verdict cannot be made only by one party—especially if it is other than that which the president heads. Yet to reply in such a scenario on the party that the president heads brings in a conflict of interest. Such a conflict is particularly pronounced when the president’s party controls the Senate. In such a case, even the rules of the trial, which are decided by majority vote, can be expected to be skewed in favor of the defendant (i.e., the president). It is simply too much to ask human nature to be impartial whether in setting up the trial or in acting as an impartial jurist in such a conflict of interest. This is why I contend in Institutional Conflicts of Interest that conflicts of interest are inherently unethical (i.e., even they are not exploited for personal or institutional gain).

The gravity of the conflict of interest can be easily detected when it is being exploited in rather obvious ways. Sen. Lindsey Graham (Republican), “a close ally of the [Republican] president, criticized Democratic House managers’ arguments at the trial in recent days, calling Thursday’s presentations ‘like way too much. [1] Graham made the comment when the prosecutors were making their opening statement, so the implication is that he was already not impartial for he did not wait until even the conclusion of both opening statements to make his statement. The sheer brazenness suggests that senators of both parties may have regarded the oath of impartiality as a sham. Indeed, even the labeling of the prosecutors as Democrats and the defense attorneys as Republicans can tell us that political partisanship dwarfed the oath.

In the trial of President Trump, the party he headed at the time controlled the Senate. Given this conflict of interest, it is not surprising (sadly) to find the trail schedule modified to suite the president. After he complained about low television viewership-levels on Saturdays being “Death Valley in T.V.,” the Senate’s majority leader announced that the first day of the president’s defense attorneys’ opening statement, which was on a Saturday, would only be for a few hours. The defense was “planning a more robust presentation for Monday and Tuesday.[2] To be sure, two Democratic Senators running for president had campaign events scheduled for that Saturday night, but I submit that the majority leader was more attentive to the defendant’s wishes than to campaigning senators of the other party—the one that the president does not head. The defendant was able to schedule his own trial.

The president’s reach extended even to whether the trial would have witnesses! Former National Security Director John Bolton could have provided a first-hand account of the president having admitted to holding appropriated military aid to Ukraine until the Ukraine president publicly announced that his government was launching an investigation into Trump’s likely presidential rival in 2020, Joe Biden (and his son). But the president’s majority party in the Senate refused to allow the witness nonetheless, even as the president’s defense argued that the prosecutors had not provided first-hand account testimony from an impeachment witness in the House (which in turn is debatable).

Impartial jurists of the president’s party argued as if they were part of the defense that calling witnesses could run into the obstacle of the president claiming executive privilege. One of the prosecutors, a member of the opposition party, replied that the U.S. Chief Justice, who was presiding over the trial, could make such a determination, but such a rule could be overridden by a majority vote (the president’s party being in the majority) by the Senate.[3] Here again the institutional conflict of interest is evident. Senators of the president’s own party could vote to override the Chief Justice to block witnesses in the trial.

Even in terms of documents that the president had refused to provide to the U.S. House in its impeachment investigation, the Senate’s majority looked the other way. Rep. Sylvia Garcia, a prosecuting manager, said in the opening statement, "The House investigative committees sought a total of 71 specific categories of documents from six different agencies and offices. President Trump blocked every single one of these requests, all of them." Between Dec. 27, 2019 and Oct. 10, 2019, Garcia said, “House investigative committees issued subpoenas to the State Department, the White House, the Office of Management and Budget, the Department of Defense and the Energy Department. Some agencies initially suggested that they might comply. Some turned over documents to the Trump administration so they could be turned over the Congress. But in the end, the president turned over nothing in response to the House impeachment inquiry,” she said.[4] Surely national security would not have been compromised in all of those documents, yet the Senate exploiting the conflict of interest would tell future presidents that supplying documents critical of the administrations can be avoided. What then of the legislative check on the executive branch?

Was the trial of President Trump even a trial without witnesses, potentially critical documents, and even an impartial jury? To the extent that the defendant could get his way even in the voting on the trial’s rules, could the trial be viewed as valid? Apparently it was. Not even the Chief Justice could enforce the oath of impartiality. Senators having made statements showing prejudice for or against the defendants could perhaps have been disqualified. The two-third majority could then perhaps have been applied to senators with an open mind, although silence does not necessary mean that a person is impartial. Also, presumable the Senate could override the ruling on particular senators or forbid such rulings, as no one likes to be excluded. Again we would find a conflict of interest in the disciplined being able to overrule the impartial judge.

Hamilton suggested at the constitutional convention that the U.S. Supreme Court decide whether an impeached president should be removed from office. It was felt, however, that such a role would put the impartial court into the political realm, especially to the extent that the justices are biased toward the defendant one way or the other. Justices are nominated by presidents, after all. I contend that such bias would be less intense than in the U.S. Senate because judicial reasoning and judgment can temper the influence of politics in the Supreme Court even though ideological bias is likely present generally (though it may be indirect, rather than direct as in the Senate). Put another way, the defendant’s party controlled the Senate, but the justices would be less likely to take orders from the defendant, especially given the Court’s reverence for the institution of a trial (e.g., witnesses, impartial judges and thus scheduling). In contrast, senators may tend to view a trial of a president as fitting within the framework of a political debate, wherein no one is impartial and “horse-trading” to get votes to exploit a conflict of interest are acceptable. Imagine a jury of a criminal trial making deals in deliberation such as, “You vote guilty and I’ll see that you get a car loan.” In the Senate, the majority (and minority) leader could privately promise something of political or economic value to a senator of the same party who would otherwise vote to allow witnesses. Indeed, if enough majority-party senators are not impartial, setting the rules of the trial is also a conflict of interest. In the Trump trial, the majority leader was opposed to witnesses even before he took the oath of impartiality. Rather than having the Senate establish the rules, the U.S. Supreme Court could do so in order to obviate the conflict of interest, which is especially pronounced when the Senate votes on rules (such as whether to allow witnesses) during the trial!

What about having the American electorate act as the jury? Is there any basis to assume that We the People would be less partisan? The biases in the Senate may be a muffled representation of a polarized electorate. Additionally, the electorate was largely not following the trial, let alone listening to the opening and closing statements. In the case of the Trump trial, the next presidential election would be in less than a year. In a presidential election, a myriad of factors come into play--the articles of impleachment being just two. Less knowledge of the case is needed; the matter is more one of an overall judgment of the incumbent (as well as the challenger). Lest it be argued that the regular elections be sufficient to hold a president accountable, such reliance would do nothing to purge the U.S. of a criminal such as Nixon mid-term in order to stop the bleeding. It may be that a majority of the senators assessed the two articles of impeachment against Trump as not sufficient to justify removing the president from office, but given the institutional (and possibly personal) conflicts of interest, the electorate cannot be confident. Judging from the smile on the majority leader's face just after he met with a republican senator previously in favor of allowing John Boltan to testify, I believe that horse-trading went on regarding the setting of at least one of the trail's rules. If it sounds strange that jurists in a trial would do such a thing even on whether to alter the trial rules, remember that institutional conflicts of interest can operate like black holes in that the gravitational force is powerful and light cannot escape.

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1. Rebecca Ballhaus, “Lindsey Graham Says Bidens' Actions Need More Scrutiny,” The Wall Street Journal, Jan 24, 2020.

2. Natalie Andrews and Rebecca Ballhaus, “Impeachment Schedule for Today and Tomorrow,” The Wall Street Journal, January 24, 2020.

3. Linsey Wise, “Schiff Calls Fears of Witness Fights Delaying Trial ‘Nonsense’,” The Wall Street Journal, January 24, 2020.

4. Linsey Wise, “Demings: Trump’s Obstruction Was ‘Categorical, Indiscriminate, and Historically Unprecedented’,” The Wall Street Journal, January 24, 2020.

National Absurditas

Words can be stretched, or even abused, in the service of a self-serving ideology that is utterly unfair to other people as well as stubborn facts. Nietzsche theorized that ideas are the stuff of instinctual urges tussling for supremacy in the human mind. Against Kant’s love of the fixed laws of reason for their own sake, I submit that Nietzsche’s tussle of ideas can bend even the laws of reason, like the gravity of large masses can bend space (and thus light) and time. The basic framework of the universe is not static. Neither, I believe, are the rules of reason, and reasoning itself. Intense power, such as that of an ideology, can warp both the basic framework and process of reason. This can explain why ideologues can be seen by others to suffer from cognitive dissidence: holding two contradictory beliefs at the same time. A defense mechanism of ideology can block awareness of one of the two. Self-serving applications of the word, national, is a case in point.

An article touting small towns in the U.S. as worthy tourist attractions stresses the importance of “small towns and communities that have long formed the backbone of the nation.”[1] The article features the best small town in every U.S. state, though the importance of small towns is in terms of the nation. The gravity of so much consolidated power at the level of the Union may be behind the bending of the spotlight from the state to the federal level. The towns were selected on the state level and yet they form the backbone of the nation. Cognitive dissidence is present in the tension here. Indeed, the term national can apply to the states, as the U.S., like the E.U., sports a federal system of dual sovereignty. In both empire-level unions[2], the member-states have retained some governmental sovereignty as well as any residual not delegated to the federal level. Also in both unions, cultural and even political-ideological differences exist from state to state. The U.S. state of Vermont differs significantly from the state of Kansas, for example. The E.U. state of Denmark differs significantly from the state of Spain. An empire must have many culturally distinct states (or kingdoms, historically).

It follows that the United Kingdom is not itself an empire. Formerly an empire and later a state in the E.U., the UK post-secession (not post-divorce, as the UK and the E.U. are not equivalent because the UK was a state in the E.U.). Culturally, the Scottish, Welsh, and English regions (and Northern Ireland, whose residents tend to identify themselves as English culturally) are much more similar than are the E.U. states of Greece and Sweden. In fact, were the regions of the UK really nations, they would have been separate E.U. states. Those regions only have delegated power in the UK, and are thus not semi-sovereign, so the regions are not nations. Indeed, the British Parliament could stop the Scottish region, for example, from even applying for E.U. statehood, whether before or after the secession.

Even so, the British refer to their regions as nations. For example, the Church of Scotland “is a Presbyterian church and recognizes only Jesus Christ as ‘King and Head of the Church’,” according to the Royal Family’s website.[3] If this sounds familiar, this may be because Israel before the kings recognized Yahweh as its sole ruler (assuming this is a historical fact used in the faith narrative). Yet someone had to interpret Yahweh’s will. Similarly, according to CNN, the Scottish Church is “entirely self-governing, represented at the local level by ‘kirk sessions’ and at a national level by the General Assembly.”[4] The Lord High Commissioner to the General Assembly of the Church of Scotland is a human being. The Queen annually appoints someone to “maintain the relationship between the State and the Church,” according to the Royal website in early 2020.[5] Although occupants have been from the Scottish region, members of the royal family have also been appointed. In January 2020, the Queen appointed her grandson, William. Hence the Crown is over the Church of Scotland, albeit not as explicitly as in the case of the Church of England. This contradicts the self-governing plank of the Scottish Church, and, more to the point, the claim that the General Assembly is on “a national level,” meaning that Scotland is a nation.

Here, cognitive dissidence and a warping not only of the word national, but also of reasoning itself, can be seen. In the relation between Church and State, the latter refers here to the UK rather than Scotland, and yet the latter is “a national level.” The warping of reasoning itself and the law of reason that mandates that equivalents are equivalent are evident in the further contention that the semi-sovereign U.S. states are not nations while Scotland is. Two contradictory uses of the same word violate the logic of equivalence and invoke cognitive dissidence. In short, the British should not apply national to both Scotland and the United States. That this is done suggests the underlying presence of a questionable motive.  

Moreover, Europeans and even Americans typically treat an E.U. state as equivalent to the entire American union rather than to a member-state therein.[6] I suspect that few Americans even realize how the language is being used, and why. In the case of the Europeans, the ideology seems to involve a self-serving overstatement of the importance of a former or current E.U. state and a diminishment of an empire-level union elsewhere. Power can fuel both the self-aggrandizement and passive aggression. In fact, the latter is definitely present in angry reactions against the few people who try to restore the application of equivalence as if doing so is irrational and haughty! Such is the power of ideological defense-mechanisms manifesting in the political domain.

Although I resist the linguistic reductionism in 20^th century analytical philosophy (e.g., Wittgenstein’s claim that no awareness of an object can precede a word being given to that object), I readily admit that human beings can use language in order to get pleasure from having more power. The fixity of the rules of grammar and of the definitions of words can be mere parchment constraints up against the instinctual urge for power.

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[1] Lissa Poirot, “Every U.S. State’s Best Small Town,” Far & Wide, January 10, 2020 (accessed January 26, 2020).

[2] Skip Worden, British Colonies Forge an American Empire (2017).

[3] Amir Vera, “Queen Appoints Prince William to New Role amid Royal Shakeup,” CNN.Com, January 25, 2020.

[4] Ibid.

[5] Ibid.

[6] Skip Worden, Essays on Two Federal Empires: Comparing the E.U. and U.S. (2015).