A Senate impeachment trial must account for the core problems with the House’s Star Chamber impeachment inquiry, the common law of impeachment, and the Founder’s intent. If the Senate is passive, it will be complicit in an injustice to our nation.
The following is cross-posted (and slightly edited) from the American Thinker
The House is running a Star Chamber proceeding that is not a constitutionally adequate “impeachment inquiry.” Instead, it is the culmination of a three-year long bad faith effort to overturn the 2016 election without regard to the will of the people, precedent, and due process. If the Senate is not careful and does not adjust its current procedures accordingly, then the House will use the Senate trial to make a mockery of our Constitution.
Ironically, though, simply dismissing Articles of Impeachment outright may deprive President Donald Trump of the opportunity to defend himself in the court of public opinion. He needs an opportunity to rebut, in public, the way in which Rep. Adam Schiff has conducted an impeachment using daily leaks to the media.
House Democrats, many of whom were at least complicit in pushing the Russian hoax (the single greatest political scandal in America’s history), appear to be misusing impeachment to launch a collateral attack on the Barr / Durham investigation into the Russian Hoax and to overturn the 2016 election or, failing that, to achieve an unearned electoral victory in the 2020 election. If a passive Senate allows the impeachment trial to go forward under current rules, it will do a grave injustice to this country.
It seems likely that the House will vote out one or more articles of impeachment that simply charge “orange man bad” and that deserve to be summarily dismissed as not meeting the legal standard of a “high crime and misdemeanor.” If, as seems likely, the House also votes to approve an Article of Impeachment for abuse of power regarding the President requesting that Ukraine look into the situation regarding the corruption of Joe and Hunter Biden, then the President may want to prove as an affirmative defense that: 1) the President acted within the legitimate powers of his office just as other Presidents have as regards negotiating with foreign aid; and 2) that Trump had a reasonable basis to suspect that Joe Biden acted corruptly and unlawfully when VP Biden unilaterally threatened to withhold aid from the Ukraine if the government did not fire a particular prosecutor. Proving such an affirmative defense would likely require extensive testimony from both of the Bidens before a Senate vote on the issue. There is no reason the House should be allowed to force a trial on any of their articles of impeachment before the President has proven his affirmative defenses or had the opportunity to dismiss those claims that do not rise to the level of “high crime and misdemeanor.”
Accordingly, the Senate should adjust its Rules for a Trial of Impeachment to as suggested below in the Section entitled “Proposed Changes to the Senate Rules To Provide For Clarity, Fairness, and Due Process.” This would bring such a trial much closer in form to a true criminal trial. Those changes:
- Provide the President with a fair trial and due process rights, including the right to raise pretrial motions to dismiss, either for failure to state a claim or because the President has an affirmative defense to one or more articles of impeachment.
- Provide that the Senate will first consider the arguments of law and hear witnesses to resolve any disputed issues of fact as to any affirmative defenses before voting on a motion. Only if the motions are defeated by a two-thirds majority would the House be allowed to put on evidence relevant to that Article of Impeachment.
- Provide that the trial will be conducted in accordance with the Federal Rules of Evidence.
- Provide that questions of relevancy will be resolved by referring to the original intent of the Drafters of the Constitution and the common law of impeachment. Impeachment was never meant by our Founders to be simply an arbitrary political tool.
The Substantive Law of Impeachment
I addressed the substantive law of impeachment here. To summarize briefly:
- Impeachment is based on English common law and Parliamentary precedent as it existed in 1789, and the Founders debates on impeachment during the Constitutional Convention of 1787.
- While there is still a debate about what constitutes “high crimes and misdemeanors,” that does not mean, as Rep. Maxine Waters asserted in 2017, that those terms mean whatever majority Democrats in the House want them to mean.
- There are limits to what may be asserted as “high crimes and misdemeanors.” Among these limits are complaints against (a) acts that are nothing more than alleged “maladministration” (e.g., ordinary mismanagement); and (b) acts that fall within the customary and lawful powers of the Presidency (even if the House majority dislikes the way the President uses those powers).
Current Senate Rules For The Trial Of Impeachment
The applicable procedural rules are set forth at Rules of Procedure & Practice in the Senate When Sitting On Impeachment Trials, [Revised pursuant to S. Res. 479, 99–2, Aug. 16, 1986]. These rules, given the nature of the House’s Star Chamber “impeachment inquiry,” are inadequate. Specifically:
- The rules authorize only a full trial on the Articles of Impeachment and only a single vote on each Article once the trial has concluded. This would allow Nancy Pelosi and Adam Schiff to use the Senate trial to advance a host of prejudicial arguments that are not relevant to any colorable claim on which impeachment could be had, particularly if the Senate allows the House to define “high crimes and misdemeanors” without reference to the Founders original intent or the common law..
- While the rules allow for pretrial motions, they do not allow the President to raise pretrial motions that would dispense with one or more of the Articles of Impeachment without the need for a full trial.
- The rules provide no evidentiary standard for the Chief Justice to apply at the trial, thus allowing the House prosecutors to introduce prejudicial hearsay and inadmissible or irrelevant evidence to the Defendant’s detriment.
- The rules provide no standard legal definition of “high crimes and misdemeanors” upon which the Chief Justice can determine relevancy.
The Senate may change its rules by a simple majority vote.
Proposed Changes to the Senate Rules To Provide For Clarity, Fairness, and Due Process:
The following additions and deletions shall be made to the Rules of Procedure & Practice in the Senate When Sitting On Impeachment Trials, [Revised pursuant to S. Res. 479, 99–2, Aug. 16, 1986]
[New Par. XXVII] The Federal Rules of Evidence will control the impeachment proceeding. Testimony, both written and oral, that the House of Representatives acquired through individuals or committees on or after September 24, 2019 (the date on which the Speaker unilaterally announced an “impeachment inquiry”) will be treated in the same way Grand Jury testimony is treated in an ordinary criminal trial: If the House acquired the testimony without giving the President notice and an opportunity to have an attorney present to raise objections, that testimony, absent a hearsay exception, cannot be admitted at the Senate trial. Further, if those prosecuting the impeachment wish to introduce this testimony by relying on a hearsay exception, they must proffer the testimony and the relevant legal argument in chambers before the Chief Justice. During that evidentiary hearing, the President’s counsel may raise the same objections he could have made had he been present at the House inquiry including, but not limited to, claims that the testimony is irrelevant, privileged, or resulted from badgering a witness.
As a predicate for any effort to introduce into evidence testimony adduced to the House proceedings, at least seven days before impeachment proceedings begin (including pre-impeachment motions), the House must provide to the President’s attorney(s) a full and complete copy of the transcript in which the testimony appears. Failing to do so will bar the House from presenting that testimony during any phase of the Senate trial.
[New Paragraph XVIII] The Senate shall construe the term “high crimes and misdemeanors” consistent with the Founders’ intent and the common law of impeachment as it existed when the Founders’ ratified the United States Constitution. Under these ancient principles, the President may not be impeached if the substantive claim against him, standing alone, amounts to a disagreement with the way in which the President used the same powers that prior presidents have customarily used. See, e.g., Joseph Story, Commentaries on the Constitution, Vol. II (1833). The President also may not be impeached for simple “maladministration“; that is, charges amounting to ordinary incompetence or mismanagement. See, e.g., James Madison, Notes of Debates in the Federal Convention (1840). Finally, no one, whether a president, vice president, congress person, or private citizen, regardless of status, is ever above the laws of the United States or immune from the law’s reach. The President may not be impeached merely because his ordinary, customary, and lawful conduct exposes someone’s illegal acts. During the course of the trial, the Chief Justice of the Supreme Court, shall rule on any objections to relevancy in light of this controlling law.
[Deletion] The first sentence of Article XXIII, that “An article of impeachment shall not be divisible for the purpose of voting thereon at any time during the trial,” is hereby deleted.
[New Paragraph XXIX] Before trial begins, the Defendant’s (i.e., President’s) lawyers may raise affirmative defenses that the President (1) should have been allowed to develop during testimony at the House’s impeachment inquiry and (2) should have been able to raise before that body’s final vote on Articles of Impeachment; and (3) that in the normal course of a trial subject to procedural due process, would dispense with some or all of the charges brought against him without the necessity of a trial. Those motions include, but are not limited to assertions:
- That the president’s acts complained about in any Article of Impeachment are within the United States President’s common powers and, standing alone, cannot serve as the basis for impeachment.
- That the president’s acts complained about in any Article of Impeachment represent statutorily authorized powers and, standing alone, cannot serve as the basis for an impeachment.
- That if those acts in which the president engaged and that are now enumerated in any Article of Impeachment are objectively deemed to have furthered one or more of the President’s textual Constitutional duties, those acts cannot serve as the basis for an impeachment, irrespective of any benefit the President might receive from engaging in them.
Once the president raises an affirmative defense as a complete defense to any Article of Impeachment, the Senate shall hear hear arguments based upon the facts and law relevant solely to that affirmative defense. If there is a relevant fact in dispute, then the Senate may hear testimony relevant to establishing those facts, provided that the testimony is consistent with the evidence rules set out above. When argument ends, the Senate shall vote on each Article of Impeachment that the affirmative defenses challenge.
Senators who believe that the President has proven his defense shall vote “yea,” to exonerate the President and bring to an end a full trial on the challenged Article of Impeachment. Senators shall vote “nay” only if they conclude, based upon the laws and facts presented and argued, that the President has not proven his defense. A two-thirds majority of those present must vote “nay” to defeat the affirmative defense. Only then can the trial proceed as to that Article of Impeachment in accordance with Article XXIII. If fewer than two-thirds of the Senators present vote “nay,” then the President will be deemed innocent of the charges of the challenged Article of Impeachment without the need for a further trial on that Article of Impeachment.
Just FYI, Supreme Court Justice Joseph Story, in his seminal work, Commentaries on the Constitution, Vol. II (1833), states both as to the substantive law of impeachment and what constitutes due process during any
trial of impeachment (emphasis added):
The doctrine, indeed, would be truly alarming, that the common law did not regulate, interpret, and control the powers and duties of the court of impeachment. What, otherwise, would become of the rules of evidence, the legal notions of crimes, and the application of principles of public or municipal jurisprudence to the charges against the accused? It would be a most extraordinary anomaly, that while every citizen of every state, originally composing the Union, would be entitled to the common law, as his birth-right, and at once his protector and guide; as a citizen of the Union, or an officer of the Union, he would be subjected to no law, to no principles, to no rules of evidence.
It is the boast of English jurisprudence, and without it the power of impeachment would be an intolerable grievance, that in trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail. For impeachments are not framed to alter the law; but to carry it into more effectual execution, where it might be obstructed by the influence of too powerful delinquents, or not easily discerned in the ordinary course of jurisdiction, by reason of the peculiar quality of the alleged crimes. Those, who believe, that the common law, so far as it is applicable, constitutes a part of the law of the United States in their sovereign character, as a nation, not as a source of jurisdiction, but as a guide, and check, and expositor in the administration of the rights, duties, and jurisdiction conferred by the constitution and laws, will find no difficulty in affirming the same doctrines to be applicable to the senate, as a court of impeachments.
Those, who denounce the common law, as having any application or existence in regard to the national government, must be necessarily driven to maintain, that the power of impeachment is, until congress shall legislate, a mere nullity, or that it is despotic, both in its reach, and in its proceedings. It is remarkable, that the first congress, assembled in October, 1774, in their famous declaration of the rights of the colonies, asserted, “that the respective colonies are entitled to the common law of England;” and “that they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization, and which they have by experience respectively found to be applicable to their several local and other circumstances.” It would be singular enough, if, in framing a national government, that common law, so justly dear to the colonies, as their guide and protection, should cease to have any existence, as applicable to the powers, rights, and privileges of the people, or the obligations, and duties, and powers of the departments of the national government. If the common law has no existence, as to the Union, as a rule or guide, the whole proceedings are completely at the arbitrary pleasure of the government, and its functionaries in all its departments.