For only the third time in American history, the President of the United States is on trial in front of the Senate. At stake: the Presidency itself. Should a two-thirds majority find Donald John Trump guilty, he will be removed from office, and likely banned from running again.
As the trial progresses we are hearing commentators and experts drawing analogies between the “impeachment trial” and more familiar criminal law. While those analogies might be helpful in explaining some procedures, in the end the two are not the same at all.
We’ve Impeached
Impeachment is already over. Donald Trump is an “impeached” President, joining the list of Andrew Johnson and Bill Clinton. Impeachment was the House of Representatives bringing charges for trial in front of the Senate. It is analogous to what an indictment does in the criminal process. And, much like a criminal indictment, there are few “due process” protections for the “defendant”.
That reality belies the complaints of the President, demanding representation and bemoaning the unfairness of things. The President is now getting his rights: they’re coming up next week when his “dream team” gets three uninterrupted days on the floor of the Senate. And besides, you can only hope that if you are investigated for a criminal indictment, that almost half of the investigators are your friends and supporters, like Jim Jordan, Doug Collins, and the rest (though I’d rather have friends who actually tried to influence the outcome rather than just disrupt it).
It’s Not a Crime
And the “trial” itself, though it has the trappings of a court drama, is really very different. First of all, there is a judge, the Chief Justice of the Supreme Court; but he has little influence over the proceedings. The Senators are both judges and jurors: a simple majority determines the rules of the proceeding. The usual fairness we would expect in a trial, hearing witnesses and seeing evidence, are not a given. They are a “grant” of the majority.
The trial from impeachment is rather a mix of legislature, criminal law and civil law. There is no “standard” of guilt, such as the “beyond a reasonable doubt” criminal bar, or even the “preponderance of the evidence” of a civil case. The Senator/Jurors get to not only decide the facts of what happened, but whether those facts violate the Constitution, and whether those violations are so egregious that the President should be removed. As jurors they determine the facts, as judges they evaluate the law.
But removal from office (and baring from future office) is not a criminal penalty, and the Trial from Impeachment is not a criminal case. The rights we assume in the criminal system are not enforced. If the President is removed for criminal reasons, then the he would get criminal rights in a criminal court, after he is out of office.
There are none of the Constitutionally mandated legal criminal protections that we are so used to. Certainly the President could refuse to present evidence and testimony, “taking the Fifth” so to speak. But unlike criminal action, the Senator/Jurors are allowed to infer guilt from his failure. And the Constitution does not require a particular level of “guilt”. If two-thirds believe the President should be removed, he is.
High Crimes
The term “high crime” is a “term of art” as used in the United States Constitution. A high crime to the Founding Fathers, was a crime against the state, the Constitution itself, not a “big” crime or felony as we think of in criminal law today. High crimes are acts against the State, but not necessarily against statutory criminal law.
The current 1st Article of Impeachment is for Abuse of Power, a term that is a “high crime” but not analogous to any individual Federal statute. Under “abuse of power” there are contained various Federal crimes: misuse of public funds, violation of the impoundment act, offering bribes to foreign officials, encouraging foreign intervention in US elections. But those are all “common” crimes, it is only when committed together by the President that they become a “high” crime, a crime against the Constitution.
And the 2nd Article of Impeachment, obstruction of Congress, is wholly outside the Federal Criminal Statutes. The “high” crime is in preventing Congress from exercising its Constitutional Article I powers of oversight. The President claims a flawed theory of total blanket Executive immunity. He has completely refused all Congressional requests for information. It is a Constitutional question, to be decided above the level of mere Federal law.
Clock and a Calendar
The Republican Congressman from Georgia, Doug Collins, made a huge fuss about the House Democrats rush to impeachment. He didn’t understand the hurry, and kept saying that “…a clock and a calendar” drove them, as if that was some insult.
He wasn’t wrong, but not for the reason he thought. Democrats did feel the pressure of time in the impeachment action. The President, through his actions in Ukraine, made it clear that he would ask for and accept foreign aid to help him win election in 2020. Those elections are now mere months away. To prevent the President from cheating, something had to be done.
The “clock and the calendar” are still running. This President began the Ukraine crisis literally the day after he was “cleared” by the Mueller Report. Who knows what will happen the day after this trial is over.
Perhaps Impeachment and Trial will serve as a check on his future actions, even if he’s not removed from office. Perhaps it will not. If the Senate fails to be remove him, we will find out soon enough.
