In impeachment trial, the Senate is also judged

As President Trump’s impeachment trial unfolds, it is not only the president whose legacy hangs in the balance. The Jewish tradition teaches that the senate – his jurors – will individually and collectively be judged for their ability, or lack thereof, to assert the power due them. 

Without a formal doctrine of separation of powers, the Jewish political tradition is admittedly an unlikely source for precedent to help us grasp what is at stake in a high-stakes governmental clash unfolding for only the fourth time in American history. This unlikeliness is only heightened by the earliest stratum of Jewish legal text which says simply, “The sovereign cannot be tried,” placing the sovereign above the reach of the law, and foreclosing the possibility of anything resembling impeachment.

But the Talmud goes on to offer a backstory to the ruling that the sovereign cannot be tried, one that frames it as a retreat from the ideal of judicial supremacy, rather than as expressing an ideal of a sovereign’s unaccountability. As the Talmud remembers it, once upon a time the members of the rabbinic court – tasked with trying the sovereign for his crimes – tried and failed to assert their collective power against him because they feared his retribution. This calamitous collapse destroyed their integrity, and that of the body and tradition they represented. In order to shield future rabbis from a similar defeat, a rule was enacted that rabbinic courts should not even attempt to hold the sovereign to account. The story, as told in Bavli Sanhedrin 19a-b, goes like this:

A servant of Alexander Janneus (ruled 103-76 BCE) killed a person. Shimon ben Shetach, the head of the rabbinic court, convened the court to judge the king – demanding that not only the servant, but the king himself appear for judgment. When the king arrived he sat down and Shimon said to him, “Stand up, and witnesses will testify against you. You are not standing for our honor, but for God’s honor.” Yannai replied, “I will not stand on your instruction – but if your colleagues will order me to stand, then I will.” Shimon turned to his left and to his right, and each judge, instead of meeting his gaze, kept his eyes down – refusing to confront the king. Shimon said to them, “You are keeping your thoughts private – may the One Who Knows Thoughts judge you.” Immediately, the Angel Gabriel appeared and struck down all the members of the court other than Shimon. At that moment, they instituted the rule, “The sovereign cannot be tried.”

This rich story resonates today in three different ways.

First, the procedures of the trial matter: questions of who will stand and sit, and of whether witnesses will testify, are critical assertions of power and prerogative. Then, as now, in the choreography and procedural details of the trial power is being negotiated: we are all right to see the details of impeachment as monumentally meaningful, whichever side we take.

Second, even as the collective of the judging body holds greater power than the sovereign, its individual members do not. And if individual judges are cowed by the sovereign – perhaps out of fear of bodily or political retribution by him or his followers – the judging body as a whole will fail to rise to its duty of asserting its power over him. I will leave it to the reader to assess the degree of correlation between the feckless judges condemned by the Talmud and the senators of the 116th Congress.

Third, much more rides on the courage of the individuals responsible for judging the sovereign – the rabbis of the Talmud and today’s senators – than their own personal integrity. The lived expression of transcendent values – justice, the rule of law, and the equality of every person – are at stake. Is there some principle, or some One, who, at present, is a more powerful historical force than the sovereign? In other words, the Talmud in its pessimism does not assert that the sovereign may not be tried, so much as that he cannot be tried: no force, no matter how ancient or lofty, can hold him to account. The question that is being decided today in America, as it was in the Talmud, is whether we can and will try our sovereign.

None of this is to say that Judaism dictates an outcome to the impeachment trial, or even a procedure. But it is to say that if the trial is distorted by its judges’ fears of the accused’s powers, the damage to them, and to the integrity of American democracy will be deep and enduring.