It has been widely reported that the filing of Special Counsel Robert S. Muller, III’s “final” report is imminent. Meanwhile, the House continues a vigorous investigation into all matters Trump, as the SDNY (Southern District of New York, the US Attorney’s office) and the Eastern District of Virginia as well as the District Attorney’s office in New York City, continue their investigations.
Many on the left have called for the president’s impeachment upon receipt of the Mueller report. House leaders Nancy Pelosi and Steny Hoyer, among others, continue to urge patience to their impatient caucus members. Those urging the immediate filing of articles of impeachment by the House would be wise to heed the advice of their leaders. Here’s why.
“If the Muller report, or any of the other investigations, clearly shows the President committed impeachable offences, why not impeach him now?”
The short answer is, the Senate.
The republican members of the United States Senators, at this moment in time, are no more than hand puppets to the president no matter how reprehensible his conduct. They readily look the other way–whenever and regardless–of his racist, misogynist, homophobic, trans-phobic comments and policies or his support-by-failure-to-denounce nationalists, white supremacists, fascist henchmen and dictators.
In the Brett Kavanaugh confirmation hearings, they refused to give credence to any of the witnesses who spoke on behalf of Dr. Ford, who accused him of sexual battery. In fact, they fairly twisted themselves inside out to find reasons to support the reprehensible nominee to the United State Supreme Court. They were looking for the proverbial “smoking gun”; eyewitness testimony or, perhaps a photograph of penetration, before they would be willing to accept Dr. Ford’s testimony.
Even if, as he boasted during his campaign, that he could shoot someone in the middle of 5th Avenue and not be held accountable, what kind of evidence would the Senate require to actually convict him? Video footage from 100 different angles? A tracer bullet showing the bullet leaving his gun and entering the victim’s chest? Audio recordings of Trump saying “I’m gonna kill you” and the victim exclaiming with his dying breath “President Trump, you have fired your .357 magnum colt revolver, registered in your name, the bullet from which has entered my heart and killed me!”
How could we expect these people to convict during an impeachment hearing in the Senate between now and 2020?
One thing we know about impeachment is that there has been only one impeachment trial in the Senate in the history of the United States, that of former President Bill Clinton, who was acquitted. What we don’t know about the process is legion.
In an attempt to learn about the process, I turned to two sources: “To End A Presidency, The Power of Impeachment” 2018, by Laurence Tribe and Joshua Matz, and “Impeachment: A Handbook, New Edition” by Charles L. Black, Jr. and Philip Bobbitt.
In our legal system there are two kinds of law: criminal law, and everything else. Article II, Section 4 of the Constitution states:
“Treason , bribery, or other high crimes and misdemeanors” all sound like matters handled by our criminal courts; however, legal scholars have opined that not all crimes are impeachable and not all impeachable offenses are crimes, which I know makes the matter all the more understandable.
Professor Black in his handbook, Impeachment, holds forth that impeachment resembles a judicial criminal procedure, and that seems plausible given both the language of the Constitution and the nature of the remedy sought, i.e., the removal of the [inter alia] president from office–the separation of something from the individual other than money (which is the goal in a civil proceeding).
Tribe and Matz argue that:
. . . In exercising the impeachment power, the House and Senate are left largely to their own devices. . . With only a few exceptions . . . the House and Senate can establish their own rules for impeachment. They enjoy broad latitude in structuring investigations, hearings, deliberations, and votes. They can also decide the burden of proof, the rules of evidence, whether to hear testimony, the role of lawyers, and when proceedings should be public. In answering these and other important question Congress must rely on its own best judgment. [Emphasis added.]
The Senate can decide on what burden of proof to apply to the hearing, and here is where this writer has problems with the process and with this Senate.
In our legal system there are several different burdens of proof applicable to trials. From least to most burdensome they are:
Preponderance of the evidence.
This simply means that a party with the burden of proof (in an impeachment hearing, the House of Representatives) must present evidence that proves that is is more likely than not that the president committed the acts alleged in the articles of impeachment; something slightly more than 50% more likely. As a trial attorney I used to tell the jury that if the scales of justice were perfectly balanced and you dropped a feather or a grain of sand onto one side of the scale, that constitutes a “preponderance.”
Beyond a reasonable doubt.
This is the burden in criminal cases. Beyond a reasonable doubt, to a moral certainty, beyond shadow of a doubt are all variations on this burden. It is the most stringent burden in our legal system. This is because the possibility of depriving a person of life (death penalty) or liberty (time in prison) is of grave importance in our society and are matters not to be taken lightly.
Professor Black has suggested that the House must prove the president’s guilt by “an overwhelming preponderance of the evidence.” This “standard” is akin to what we call in the law, “clear and convincing evidence.” According to the Supreme Court in Colorado v. New Mexico, 467 U.S. 310 (1984), “clear and convincing” means that the evidence is highly and substantially more likely to be true than untrue; the fact finder, here the Senate, must be convinced that the contention is highly probable. That is, more than more likely than not (preponderance), but less than overwhelming (beyond a reasonable doubt).
But what standard applies?
Tribe and Matz write:
Scholars have long debated the appropriate standard of proof in an impeachment trial. Everyone agrees that the house must prove its case by more than a fifty-one / forty-nine margin. It would be crazy to end a presidency on the basis of a razor thin probability that the president committed “high crimes and misdemeanors.” On the other hand, requiring proof beyond a reasonable doubt would set the bar too high. We are not obliged to leave a president in power when the Senate believes that he almost certainly committed treason but can’t escape a hint of doubt.
. . .
. . . the Senate has affirmed that each Senator can adopt his or her own standard of proof . . The result is that impeachment trials involve one hundred judges with different views about making public statements, coordinating with the parties, setting a standard of proof, evaluating evidence, and defining “high Crimes and Misdemeanors.” [Emphasis added.]
And this, my friends is why we must NOT move to impeachment before the 2020 elections. As clearly demonstrated by their obvious lack of backbone and their failure or refusal to stand up to or to take on this reprehensible president, republican Senators, and republicans in general, have acquiesced to the immoral, illegal, and unethical behavior of this president. We cannot and should not expect that any of them will grow a backbone or have a “come to Jesus” moment where the clarity of day and the certainty of wrong will suddenly be revealed.
It takes a two-thirds vote of the Senate to convict. Sixty-six Senators. That simply is not going to happen with this Senate. But let’s say that the liberal wing of the democratic caucus prevails and the the House forwards articles of impeachment to the Senate based on all the best evidence set forth by all the investigations. What happens then?
Well, even though the House has no obligation to pass articles of impeachment, once they do, the Senate is obliged to commence a trial. This would be a gift to the president, because as set forth above, this Senate–even presented with clear and convincing evidence of wrong-doing–will not convict. What, then, happens to the allegations? Can the House simply re-file the articles of impeachment in the next legislative session?
Simply put, we don’t know. It has never happened. But if we recall the handbook by Professor Black, that impeachment resembles a judicial criminal procedure, then it would stand to reason that the double jeopardy provision found in the Constitution’s Fifth Amendment would come into play.
The Double Jeopardy Clause in the Fifth Amendment to the US Constitutionprohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . “
While, typically, only sanctions which can be considered as “punishment” would qualify under the rule this has never been tested with regard to impeachment. What is at jeopardy is that failure to convict would, in all likelihood, prevent the House from filing new Articles of Impeachment based on the same set of circumstances meaning that it would have to start all over again.
So do we really want to put all our impeachment eggs in one basket, to bet the whole enchilada, or to throw the baby out with the bathwater by betting that this Senate will somehow do the right thing?
I don’t. Do you?
In case you were wondering . . .