Senator Ted Cruz attacked CNN for inaccurate reporting yesterday. He was partly correct in his statement and pathetically dishonest in his presentation. It’s important to recognize why, because his argument is being echoed in assorted venues today.
A trick of propagandists is to include a link to a document or article which has a statement which might lead a casual viewer to believe it supports the argument the propagandist is making. In this case, Cruz references an article by Tom Harkin, long-sitting Democratic Senator, explaining that Senators are not jurors. This would seem to back Cruz’s contention that CNN’s story suggesting that some Republican Senators are intentionally shirking their duty and acting in bad faith is wrong.
Reading Harkin’s article completely demolishes Cruz’s argument. He uses it only because he knows that the overwhelming majority of his followers – and rarely has such Twitter’s term been more appropriate – will not bother to perform even so casual and directed a piece of research.
Harkin’s editorial explains that he raised a legal point during the impeachment of Bill Clinton, and that the Chief Justice of the Supreme Court at the time, William Rehnquist, upheld and explained the argument. That point was simple: Senators are not jurors, not because they have fewer responsibilities but because they are under more obligation than a simple jury. Jurors cannot ask questions; Senators can. Jurors cannot object to or override proceedings; Senators can. In an impeachment, each Senator is not a juror, they are imbued with the power of an entire court unto themselves… and they are obliged under their oath of office to conduct themselves appropriately.
Cruz’ contention suggests that the law is properly served when jurors do not pay attention to what is going on, when judges leave the court for a day’s worth of the proceedings, and when defense lawyers confer with the judges and jurors to determine the best way to present the defendant’s case. This is a curious position for a former Solicitor General to hold, as it certainly indicates a blatant contempt for the procedural workings of the United States’ legal system… unless he’s simply being deceptive in an effort to provide political cover.
The fact that he included the reference, much less made it his primary point, suggests that the second point he makes might be weaker than it appears from his presentation. So, let’s consider the comparison: House managers are effectively acting as prosecuting attorneys, and they have consulted with Schumer who, as Senator, is also a juror and a judge. How does that differ from what Lee, Cruz and Graham did?
There’s an obvious item missing: the topic of conversation. The three Republican Senators had a closed-door meeting about the presentation of the case to defend Donald Trump. The meetings with Schumer were meant to facilitate a rough structure for the trial: about how much time would be required to present evidence, what sort of equipment they would need, and whether witnesses were to be called. These things needed to be arranged prior to the presentation, and they were being discussed with the person in charge of making those arrangements. There has been no indication that Schumer discussed strategy with the House impeachment managers, nor have any subordinate Senators been found conferring with the House managers regarding the presentation of the case.
If McConnell had been talking with the defense attorneys about what they needed for their case presentation, the analogy would work. As it stands, it’s deceptive, dishonest and deeply flawed.
Much like Senator Cruz.