Delivered January 7, 2020

OPEN LETTER TO THE UNITED STATES SENATE

Dear Members of the United States Senate:

We are lawyers deeply committed to the Constitution, the rule of law and preserving the
priceless American democratic form of government.

Since the House has impeached President Donald Trump, the critical questions now are whether
the Senate will provide an impartial trial process and whether senators will vote impartially or
serve their own partisan self-interests.

Senate Majority Leader Mitch McConnell has dramatically framed the issue. He recently said:
“This [impeachment] is a political process. There is not anything judicial about it.” (See: ​Mitch
McConnell: 'I'm not an impartial juror' ahead of Senate impeachment trial​, CNN). “I’m not
impartial about this [process] at all....I’m not an impartial juror [.]” (See: ​Trump Diatribe
Belittles Impeachment as ‘Attempted Coup’ on Eve of Votes​, The New York Times)

Leader McConnell’s assertions cannot withstand scrutiny.

Just because the Constitution commits the impeachment process to a “political” branch of
government and senators may legitimately promote their partisan self-interest as part of the
legislative process, does not mean they are permitted to do so when serving as judges and jurors
in an impeachment trial. To the contrary, as the adjudicators of impeachment, they have a duty to
serve in a quasi-judicial capacity.

The Constitution mandates that: “When sitting for that purpose [trying impeachments] they [the
Senate] shall be on oath or affirmation.” (See: ​Const., Art. I, Sect. 3, Clause 6​) The oath that the
Senate requires every senator to take before being allowed to participate in an impeachment trial
demands that they “​solemnly swear or affirm... in all things appertaining to the trial (to) do
impartial justice according to the Constitution and law​.” (Emphasis added) (See: ​Procedure and
Guidelines for Impeachment Trials in the United States Senate​, pp. 25-26 & p. 61)

Serving one’s own partisan and political self-interest in determining: the process for an
impeachment trial, the legal standards for impeachable offenses, the facts - based on the evidence
- and whether the facts violate the standards, would be an egregious form of being “partial.” It
would be the exact opposite of being “impartial.”

Rather than a Senate impeachment trial being a “political” / partisan process that permits
senators to make decisions based on their political party’s self-interest, senators are obligated by
the Constitution and Senate rules to “do impartial justice” in all matters relating to the trial.
Similarly, Leader McConnell’s assertion that “[t]here is not anything judicial about [the
impeachment process]” is directly refuted by the Constitution. The Judiciary article itself,
Article III, expressly manifests that ​impeachment trials are a category of federal criminal trials:​
“The trial of all crimes, except in cases of impeachment, shall be by jury [.]” (See: ​Const., Art.
III, Sect. 2, Clause 3​). Thus, impeachment trials, being criminal trials, are inherently “judicial.”

The judicial nature of impeachment trials is further borne out by other constitutional provisions.
By giving “[t]he Senate... the sole power to try all impeachments [,]” (See: ​Const., Art. I, Sect. 3,
Clause 6​) the Constitution uses the same word “try” to describe the Senate’s responsibility as our
legal system has routinely used to describe the function of courts adjudicating court cases.

When the President is impeached, the Constitution does not permit a senator to preside over the
trial; it must be our nation’s highest ​judicial​ officer, the Chief Justice of the Supreme Court.​ Id.
The initial sanction required to be imposed on an official found guilty of an impeachable offense
is “conviction,” (See: ​Const., Art. I, Sect. 3, Clause 6​ and ​Const., Art. II, Sect. 4​) which is the
same initial sanction which courts impose on any guilty criminal defendant. Finally, the
Constitution prescribes that when the Senate completes an impeachment trial, it needs to enter
“judgment.” (See: ​Const., Art. I, Sect. 3, Clause 7​). This is the same word our legal system uses
to describe all courts’ determinations after completing trials in court cases.

Thus, the Constitution itself recognizes that a Senate impeachment trial must have multiple
elements of a court trial. The significantly judicial character of the impeachment trial process
mandated by the Constitution is further elaborated by the Senate’s own extensive rules for
conducting impeachment trials, many of which parallel judicial proceedings. (See: ​Procedure and
Guidelines for Impeachment Trials in the United States Senate​)

In short, Leader McConnell’s notion that the impeachment process does not have judicial
character and implicitly gives him and other senators free rein to conduct the trial as biased
political partisans is indefensible.

To the contrary, all senators have a solemn duty to do “impartial justice” in all aspects of the
impeachment trial. This includes Leader McConnell.

Signed:

Richard Abel - Connell Distinguished Professor of Law Emeritus and Distinguished Research
Professor, UCLA
John Achatz - Access to Justice Fellow, De Novo
David Addlestone - Co-founder National Veterans Legal Services Program
Susan Akram - Clinical Professor, Boston University School of Law
Stephen Alloy - Attorney at Law
Michael Altman - Attorney
R. Peter Anderson - Former Judge of Massachusetts Trial Court
Steven R. Andrews - Retired, General Counsel, Insight Enterprises, Inc.
Don Anton - Professor of International Law | Director, Law Futures Centre, Griffith University
Law School
Gina Armbruster - Vice President in the Insurance Industry
Paula Atkinson - Attorney
Natasha Axelrod - Former Civil Litigation Attorney representing consumers
Dennis Baldwin - Past President, Onondaga County Bar Association
Shaun Barnes - Choate, Hall & Stewart LLP
Jim Barnett - Alaska Attorney and Historian
Alan Baron - Former Assistant United States Attorney
Charles Baron - Emeritus Professor Boston College Law School
Elizabeth Barry - Former Chief Assistant Attorney General, State of Alaska-Retired
Peter Barta - Criminal Defense Attorney
Jeffrey Bartell - Quarles & Brady Law Firm
Denise Barton - Deputy General Counsel, University of Massachusetts
Marcia Bell - Director, San Francisco Law Library
James Bergenn - UConn School of Law, Trial Advocacy Adjunct Prof
Paul Berman - Retired Partner, Covington & Burling
Lucian Bernard - Partner, Pearson & Bernard PSC
Jules Bernstein - ABA
Michael Bertoncini - Principal in private law firm
Jessica Beverly - Attorney Advisor, Social Security Administration
Rebecca Birmingham - President Elect of the Long Beach Bar Association
Laura Blank - Attorney
Richard Bluestein - Krokidas and bluestein
Kristi Bodin - Legal Solutions in Plain English
Kristen Bomengen - Former Assistant Attorney General, State of Alaska
Bruce Botelho - Former Attorney General of Alaska
Kathleen Boundy - Co-director Center for Law and Education
Israela Brill-Cass - Ombud, Wesleyan University
Shelley Broderick - Dean Emerita and Joseph L. Rauh Chair of Social Justice at the University
of the District of Columbia Law
Mark Brodin - Professor, Boston College Law School
Ellen Brown - Former Counsel at a quasi-public organization
Alan Butchman - Garvey, Schubert & Barer, Deputy Secretary US Dept. of Transportation,
Carter Administration
Andrea Cabral - Former Assistant District Attorney, Former Assistant Attorney General
Morgan Callahan - Attorney, Nossaman LLP
Alejandro Camacho - Professor of Law, University of California Irvine
Roy Campbell - Bradley Arant Boult Cummings LLP, partner
Paul Campsen - Kaufman & Canoles
Julie Cantor - Lecturer in Law, UCLA School of Law
Cathe Caraway-Howard - Law Offices of Cathe L. Caraway-Howard
Jay Carlson - Attorney
Walter Carpeneti - Former Chief Justice, Supreme Court of Alaska
William Carroll - Former General Counsel Ballistic Missile Defense Organization
Michael Chanin - Retired Member of the Bar
Nancy Chasen - Public Interest Advocate
Mark Choate - Trial Lawyer
Manbir Chowdhary - Principal, Chowdhary Law APC; California Employment Lawyers
Association
James Clark - Retired partner, Sidley Austin LLP
David Clark - Former partner, Bradley Arant Boult Cummings
Brian Clemow - Former Adjunct Professor, Univ. of Conn. Law School
Kevin Clune - Legal Aid at Work
Steven Cohen - President, The Negotiation Skills Company
Wendy Cooper - Attorney
Michael Cordone - Former partner Stradley Ronon Stevens & Young, LLP
Glenn Cravez - Law Office of Glenn E. Cravez, Inc.
Michael Crutcher - Former partner, Preston, Thorgrimson, Ellis & Holman (Seattle, WA,)
former vice chairman, general counsel & secretary, Brown-Forman Corporation (Louisville,
KY.)
Stanley Cygelman - Partner, Casner & Edwards, LLP
Hon. John D'Amico - Judge of the Superior Court of New Jersey
Robin Davidson - Attorney
Gill Deford - Retired
Robert Dell - Retired Global Chair of Latham & Watkins
Ruth Dell - Former Attorney, NLRB
Michael J. Devereaux - Attorney
Steven DiCairano - Associate
Joel Diringer - Public health consultant, former California Rural Legal Assistance
Colin Diver - Adjunct Professor, Boston University School of Law
Steven Dodge - Deputy Public Advocate
Mara Dolan - Attorney
Michael Dolinger - Former United States Magistrate Judge, United States District Court,
S.D.N.Y.
James Dreyfus - Retired Partner, Norton Rose Fulbright US LLP
Robert Drinan - Executive Agency Counsel at a public authority
Richard Du Bey - Attorney, Ogden Murphy Wallace PLLC
Fernande (Nan) R.V. Duffly - Former Justice MA Supreme Judicial Court. Cambridge, MA
Kellie Early - National Conference of Bar Examiners, Chief Strategy Officer
Jean Eggen - Distinguished Emerita Professor of Law, Delaware Law School-Widener
University
Ivan Espinoza-Madrigal - Attorney
Evan Falchuk - Attorney and Health care executive
Judith Farris Bowman - Partner, Bowman, Moos & Elder LLC (retired)
Ellice Fatoullah - Fatoullah Associates
Gina Fazio - Attorney
Randall Fearnow - Former Indiana Senate Majority Attorney
Francis Fecteau - Associate Justice of the Massachusetts Appeals Court (retired)
Cary Feldman - Feldesman Tucker Leifer Fidell LLP
Sarah Felix - Former Assistant Attorney General, State of Alaska, Department of Law (retired)
Nicolas Fels - Former partner, retired, Covington & Burling LLP; Washington, DC
Carter Ferguson - Shareholder, Brackett & Ellis, PC
Eugene Fidell - Feldesman Tucker Leifer Fidell LLP, Of Counsel
Ruth Ellen Fitch - Attorney
Barbara Hayden Fitts - Counsellor at Law
Herb Fox - Law Office of Herb Fox
Michael Fox - Judge, Superior Court of Washington State; Judge, Tulalip Tribal Court.
Gregory French - National Academy of Elder Law Attorneys, Past President
Terry Friedman - Former Los Angeles Superior Court Judge
Christopher Gagin - Former Magistrate, Belmont County, Ohio
Gayle Garrigues - Former prosecutor
E. Susan Garsh - Former Associate Justice of the Superior Court, Massachusetts
Barbara Gately - Litigator
Thomas Gausden - Self-employed labor & employment arbitrator & mediator
Martha E. Gifford - Law Office of Martha E. Gifford
Wilbur Glahn - Partner, Former Assistant Attorney General, New Hampshire
David Glenn - Syndicated Radio Host, The David Glenn Show (present)
Richard Glovsky - Former Assistant United States Attorney and Chief of the Civil Division of
the United States Attorney's Office for the District of Massachusetts, former Attorney/Advisor,
Office of Legal Counsel, Department of Justice, former National Chair of the Civil Rig
Sharon Goddard White - White White & Van Etten PC, partner
Nicole Godfrey - University of Denver Sturm College of Law, Visiting Professor of Law
Seth Goldschlager - President, EuroStrategy Associates, Inc, and former International
Correspondent, Newsweek Magazine
Allene Golub - Law offices of Richard and Allene Golub
Joan Graff - President-Legal Aid at Work
Andrew Grainger - Former Associate Justice, Massachusetts Appeals Court
James Griffith - Former judge
Richard Gross - Former Executive Director, US Consumer Product Safety Commission
Joanna Grossman - Ellen K. Solender Endowed Chair in Women and Law, SMU Dedman
School of Law
Robert Gunther - Wilmer Cutler Pickering Hale & Dorr, Partner
Jeffrey Gutman - Professor of Clinical Law, George Washington University Law School
Ernest Haddad - General Counsel Emeritus, Partners (MassGeneralBrigham) HealthCare
System; Former Associate Dean, Boston University School of Law
Eric Hall - Attorney
Scott Harshbarger - Senior Counsel; Former MA Attorney-General
David Haselkorn - David L Haselkorn PC
Rodney Hatley - Lieutenant Commander, U.S. Navy Judge Advocate General’s Corps; former
Special Assistant U.S. Attorney; Founder, Hatley Law Group, P.C.
David Hemond - Former attorney for Connecticut Law Revision Commission
Richard Herzog - Attorney
Ingrid Hillinger - Professor of Law, Boston College Law School
Geraldine Hines - Massachusetts Supreme Judicial Court (Ret.)
Bill Hing - Professor of Law, University of San Francisco
Eric Hirschhorn - Retired Partner, Winston & Strawn LLP; former Under Secretary, US
Department of Commerce
John Hitt - Former Assistant Attorney General for the Commonwealth of Massachusetts, and
former Chief of the Civil Rights & Civil Liberties Division
Nancy Hoffman - CDR, NC, USNR, RET., Past-President of The American Association of
Nurse Attorneys, Assistant Prof. , Dept. Of Nursing and Health Sciences, CSU EastBay.
Paul Holtzman - Attorney
Susan Horn - Retired Attorney
Ira Horowitz - Retired Attorney
William Humenuk - Attorney
Douglas Hyde - Former President, Green Mountain Energy Resources; Former President and
CEO, Green Mountain Power Corporation
Cathy Iles - Private Practitioner
Trina Ingelfinger - Former Chief Attorney, Region I, U.S. Department of Education, Office for
Civil Rights
Jerome Jaffe - Attorney
George Jepsen - Attorney
Scott A Joseph - Joseph Law Office
Gerald Kahn - Private practice
Gerald Kahn - Attorney
Bernard Kamine - Attorney
Robert Kapp - Attorney
Molly Karlin - Assistant Federal Public Defender, District of Arizona
Rudolph Kass - Attorney
Isabelle Katz Pinzler - Former Deputy Assistant Attorney General , Civil Rights Division,
USDOJ, former Director, ACLU Women's Rights Project
Nicholas Kelley - Of counsel, Kotin, Crabtree & Strong, LLP
Frederic Kellogg - Former U.S. Attorney, Advisor to U.S. Attorney General Elliot Richardson.
Washington, D.C.
William Kelly - Retired partner, Latham & Watkins
Michael Kelly - Former Dean, University of Maryland School of Law
Crawford Kirkpatrick - Registered Investment Advisor
Thomas Kite - Attorney-At-Law
James Klimaski - Klimaski & Associates, P.C.
Stephen Klitzman - Former Attorney, Federal Communications Commission, 1980-2016;
Adjunct Professor, Columbus School of Law, Catholic University of America, 1985-2012
Pamela Kogut - Former Assistant Attorney General
Anne Koza - Attorney at Law
Marvin Krakow - Founding Partner, Alexander Krakow + Glick LLP
Mitchell Kraus - Former General Counsel Transportation Communications Union
Ginny Kremer - Former Assistant Attorney General, MA
Jane Lang - Attorney
Arthur Leonard - Robert F. Wagner Professor of Labor & Employment Law, New York Law
School
Judy Levenson - Brody, Hardoon, Perkins & Kesten, Partner
Jeff Levy - Partner, Levy & Blackman LLP
Janice Levy - Former assistant attorney general, present mediator and private practitioner
Ralph Levy - Retired Partner King & Spalding LLP
Eleanor Roberts Lewis - Former Chief Counsel for International Commerce, U.S. Department
of Commerce
Frank Lindh - Adjunct Professor, University of San Francisco School of Law; retired General
Counsel of the California Public Utilities Commission
William G. Litchfield - Litchfield & Litchfield, P.C.
Julie Locascio - Attorney at Law
Peter Lohnes - Knowledge Mosaic, Inc.
Fred M. Lowenfels - General Counsel Emeritus, Trammo, Inc.
Roger Lowenstein - Founder, Los Angeles Leadership Academy
John Lowry - Partner, Boehm, Kurtz and Lowry
John Lozada - Attorney
Ellen Lubell - Principal,Tennant Lubell, LLC
Paula Mackin - Former litigator and children’s rights attorney
Victoria Macpherson - Private practice
Bashar H. Malkawi - Legal Counsel and adjunct professor at the University of Arizona
Myrna Mandlawitz - President, MRM Associates, LLC
Stanley Marcuss - Former Counsel to the U.S. Senate’s International Finance Subcommittee;
former Senior Deputy Assistant Secretary in the U.S. Commerce Department; former partner,
Milbank, Tweed, Hadley & McCloy; former Senior Fellow at Harvard’s Kennedy School;
retired partner, Bryan Cave Leighton
William Markstein - Member, New York City Bar Association; 1993 Clerk (Vice Chancellor
Jack. B. Jacobs), Delaware Chancery Court
Michael P. Marnik - Former Partner, Marnik & Sullivan
Howard Matz - Former Federal Judge
L. Stephen McCready - Founder, Puritan Faust, P.C.
Robert McDaniel - Former AUSA, Former Head of Legal OSCE in Kosovo, The McDaniel
Law Office
Jacob McDermott - Senior Energy and Regulatory Attorney
Robert McGarrah - Pro Bono Attorney, Maryland Legal Aid; formerly Counsel, AFL-CIO
Office of Investment
Lisa McGovern - Former Assistant District Attorney, Middlesex County, MA
James McHugh - Former Associate Justice, Massachusetts Appeals Court
Jay McManus - Director, Children's Law Center of Massachusetts
Thomas Mela - Attorney
H Stephen Merlin - Founding Partner Cohen Pollock Merlin Turner
Richard Meserve - Attorney
Nancy Miller - Attorney, U.S. government (retired)
Jeff Modisett - Former Asst. U.S. Attorney (Deputy Chief of Public Corruption & Govt. Fraud
Div.), Former Marion Co. (IN) Prosecutor, Former Indiana Attorney General
Bruce Mohl - Former Justice, New Hampshire Superior Court
John Montgomery - Ropes & Gray, former managing partner (retired)
Sandra Moody - Massachusetts Department of Education
John Murdock - Environmental Attorney (ret.); President, Save Our Coast/ Malibu Dolphin
Watch Foundation
James C. Nelson - Justice, Montana Supreme Court (Ret.)
Nancy Lee Nelson - Nancy Lee Nelson, MPH, Health Law Attorney, Weber & Nelson Law
Office, PLLC
Ronald Nemirow - Attorney
Leslie Newman - Professor of Law Cardozo School of Law New York, NY
Cheryl Niro - Former Partner, Quinlan & Carroll; Past President, Illinois State Bar Association
1999-2000
Walter North - Ambassador (Ret.)
Laurinda Ochoa - Alameda County Deputy District Attorney former
Edward Opton - University Counsel, University of California (retired)
Terrence Pancoast - Attorney
Ryan Papir - Associate General Counsel, Trammo, Inc.
Richard Parish - Retired Attorney
Wendy Parmet - Prof. of Law, Northeastern University
Rodger Pegues - Superior Court Judge Alaska
Jane Perkins - Legal Director, National Health Law Program
Adrienne Prager - Civil rights advocate
Griffith B. Price, Jr. - Partner and Senior Counsel (Retired), Finnegan LLP
Gershon M. (Gary) Ratner - Founder and Executive Director, Citizens for Effective Schools
Roland Riopelle - Sercarz & Riopelle, LLP
Keith Roberts - Attorney
Allan Rodgers - Retired
Estelle Rogers - Public interest lawyer
Robert Rosenbaum - retired partner, Arnold & Porter
Morris Rosenberg - Washington State Association for Justice
Emery Rosenbluth Jr. - Rosenbluth Law P.A.
Martin Rosenthal - Attorney
Stuart Rossman - Former Assistant Attorney General, Chief of the Trial Division/Business &
Labor Protection Bureau, Massachusetts Attorney General's Office
Andrew Rotstein - Counsel, Scarola Zubatov Schaffzin PLLC
Emanuel Rouvelas - N/A
Wayne Rusch - Berliner, Corcoran &Rowe, LLP, Of Counsel
Robert Safron - Partner, Patterson Belknap and Webb
Gary Sampliner - Former Senior Counsel, U.S. Department of the Treasury
dorothy Samuels - Attorney and journalist
Karen Scarr - Associate General Counsel, The Gap, Inc. (identification only)
Lois Schiffer - Former Assistant Attorney General, Environment and Natural Resources
Division, US Department of Justice and former General Counsel, NOAA
Steven Shatz - Emeritus Professor, University of San Francisco School of Law
R. Kelly Sheridan - Of Counsel, Roberts, Carroll, Feldstein & Peirce
Mark Shklov - Attorney
Mark Shulman - Adjunct Professor, Fordham Law School
Barbara Siegel - Visiting Professor USC Gould School
Norman I. Silber - Professor of Law, Hofstra University; Senior Research Scholar, Yale Law
School
Beth Simon - Law Offices of Beth E Simon
Daniel Sleasman - Attorney, Private Practice
Virginia Sloan - Founder and president emeritus, The Constitution Project
Miguel Smith - Law Firm Partner
Eleanor Smith - Law Firm Partner
Allen Snyder - Partner, Hogan & Hartson; Chair, D.C.Court of Appeals Board on Professional
Responsibility
Neal Sonnett - Former Assistant U.S. Attorney and Chief, Criminal Division, Southern District
of Florida
Mark Spiegel - Professor of Law Boston College Law School
Laura Stafford - Attorney
Gary Starr - Attorney
Marshall Stein - Former Assistant U.S. Attorney, District of MA; Former Chief Staff Attorney,
U.S. Court of Appeals for the First Circuit
Richard Steinberg - Attorney
Tenley Stephenson - Former associate at Goodwin Procter, former Assistant District Attorney
for Middlesex County, Massachusetts
Mark Stern - Human Rights Office City of Boston
Donald Stern - Former United States Attorney, District of Massachusetts
David W. Steuber - Retired partner, Jones Day
James Sturdevant - Former President, Consumer Attorneys of California
Peter Sturges - Common Cause Massachusetts
David Sullivan - Former MA Senate Counsel, former Ethics Commission counsel, former
Cambridge City Councillor
Daniel Taylor - Attorney
Marilyn Tebor Shaw - Former Associate Judicial Administrator, Office of the President, Cornell
University
Paul Tendler - Law Offices of Paul Tendler
Michael Traynor - Attorney
Laurence Tribe - Carl M. Loeb University Professor and Professor of Constitutional Law,
Harvard Law School
Mary True - Dreitler True LLC retired
Ralph Tyler - Former Deputy Attorney General of Maryland; former Baltimore City Solicitor;
former Chief Counsel U.S. Food and Drug Administration
Suzanne Vaughan - LA County Bar Association
Joseph Velasquez - Former Assistant Attorney General, Texas
Ira Waldman - Cox, Castle & Nicholson LLP, Partner, Los Angeles
Jack Walker - Former managing partner, Latham & Watkins LLP
Robert Weiss - Pretrial Justice Institute, The Sentencing Project
Deborah Jackson Weiss - Retired Partner, Ropes & Gray
Lisa Weissler - Retired assistant attorney general, State of Alaska
David White - White White & Van Etten PC
Peggy Wiesenberg - Access to Justice Fellow
Mary Allen Wilkes - Former Assistant District Attorney, Middlesex County, MA
Crystal Williams - American Immigration Lawyers Association, Executive Director (retired)
Jenna Wims Hashway - Professor of Legal Practice, RWU School of Law
Chester Winkowski - Private Practice; Former Assistant District Counsel, US Department of
Justice, Immigration & Naturalization Service, New York, NY
Stephen Wizner - National Board of Trial Advocacy
Bruce Wolff - Retired attorney
Lucien Wulsin - Attorney
James Yoakum - Associate, Dechert, LLP
Antonio Zuniga - Trial lawyer