For only the third time in American history, the President of the United States is on trial in front of the Senate.\u00a0\u00a0At stake:\u00a0the Presidency itself.\u00a0\u00a0Should a two-thirds majority find Donald John Trump guilty, he will be removed from office, and likely banned from running again.\u00a0\u00a0<\/p>\n\n\n\n
As the trial progresses we are hearing commentators and experts drawing analogies between the \u201cimpeachment trial\u201d and more familiar criminal law.\u00a0\u00a0While those analogies might be helpful in explaining some procedures, in the end the two are not the same at all.<\/p>\n\n\n\n
Impeachment is already over.\u00a0\u00a0Donald Trump is an \u201cimpeached\u201d President, joining the list of Andrew Johnson and Bill Clinton.\u00a0\u00a0Impeachment was the House of Representatives bringing charges for trial in front of the Senate.\u00a0\u00a0It is analogous to what an indictment does in the criminal process.\u00a0\u00a0And, much like a criminal indictment, there are few \u201cdue process\u201d protections for the \u201cdefendant\u201d.<\/p>\n\n\n\n
That reality belies the complaints of the President, demanding representation and bemoaning the unfairness of things.\u00a0\u00a0The President is now getting his rights: they\u2019re coming up next week when his \u201cdream team\u201d gets three uninterrupted days on the floor of the Senate.\u00a0\u00a0And 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\u2019d rather have friends who actually tried to influence the outcome rather than just disrupt it).<\/em><\/p>\n\n\n\n And the \u201ctrial\u201d itself, though it has the trappings of a court drama, is really very different.\u00a0\u00a0First of all, there is a judge, the Chief Justice of the Supreme Court; but he has little influence over the proceedings.\u00a0\u00a0The Senators are both judges and jurors: a simple majority determines the rules of the proceeding.\u00a0\u00a0The usual fairness we would expect in a trial, hearing witnesses and seeing evidence, are not a given.\u00a0\u00a0They are a \u201cgrant\u201d of the majority.<\/p>\n\n\n\n The trial from impeachment is rather a mix of legislature, criminal law and civil law.\u00a0\u00a0There is no \u201cstandard\u201d of guilt, such as the \u201cbeyond a reasonable doubt\u201d criminal bar, or even the \u201cpreponderance of the evidence\u201d of a civil case.\u00a0\u00a0The 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.\u00a0\u00a0As jurors they determine the facts, as judges they evaluate the law.\u00a0<\/p>\n\n\n\n But removal from office (and baring from future office) is not a criminal penalty, and the Trial from Impeachment is not a criminal case.\u00a0\u00a0The rights we assume in the criminal system are not enforced.\u00a0\u00a0If the President is removed for criminal reasons, then the he would get criminal rights in a criminal court, after he is out of office.\u00a0\u00a0<\/p>\n\n\n\n There are none of the Constitutionally mandated legal criminal protections that we are so used to.\u00a0\u00a0Certainly the President could refuse to present evidence and testimony, \u201ctaking the Fifth\u201d so to speak.\u00a0\u00a0But unlike criminal action, the Senator\/Jurors are allowed to infer guilt from his failure.\u00a0\u00a0\u00a0And the Constitution does not require a particular level of \u201cguilt\u201d.\u00a0\u00a0If two-thirds believe the President should be removed, he is.<\/p>\n\n\n\n The term \u201chigh crime\u201d is a \u201cterm of art\u201d as used in the United States Constitution.\u00a0\u00a0A high crime to the Founding Fathers, was a crime against the state, the Constitution itself, not a \u201cbig\u201d crime or felony as we think of in criminal law today.\u00a0\u00a0High crimes are acts against the State, but not necessarily against statutory criminal law.\u00a0\u00a0<\/p>\n\n\n\n The current 1st<\/sup>\u00a0Article of Impeachment is for Abuse of Power, a term that is a \u201chigh crime\u201d but not analogous to any individual Federal statute.\u00a0\u00a0Under \u201cabuse of power\u201d 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.\u00a0\u00a0But those are all \u201ccommon\u201d crimes, it is only when committed together by the President that they become a\u00a0\u00a0\u201chigh\u201d crime, a crime against the Constitution.<\/p>\n\n\n\n And the 2nd<\/sup>\u00a0Article of Impeachment, obstruction of Congress, is wholly outside the Federal Criminal Statutes.\u00a0\u00a0The \u201chigh\u201d 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.\u00a0\u00a0It is a Constitutional question, to be decided above the level of mere Federal law.<\/p>\n\n\n\n The Republican Congressman from Georgia, Doug Collins, made a huge fuss about the House Democrats rush to impeachment.\u00a0\u00a0He didn\u2019t understand the hurry, and kept saying that \u201c\u2026a clock and a calendar\u201d drove them, as if that was some insult.<\/p>\n\n\n\n He wasn\u2019t wrong, but not for the reason he thought.\u00a0\u00a0Democrats did feel the pressure of time in the impeachment action.\u00a0\u00a0The 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.\u00a0\u00a0Those elections are now mere months away. To prevent the President from cheating, something had to be done.\u00a0<\/p>\n\n\n\n The \u201cclock and the calendar\u201d are still running.\u00a0\u00a0This President began the Ukraine crisis literally the day after he was \u201ccleared\u201d by the Mueller Report.\u00a0 Who knows what will happen the day after this trial is over.\u00a0<\/p>\n\n\n\n Perhaps Impeachment and Trial will serve as a check on his future actions, even if he\u2019s not removed from office.\u00a0\u00a0Perhaps it will not. If the Senate fails to be remove him, we will find out soon enough. <\/p>\n","protected":false},"excerpt":{"rendered":"It\u2019s Not a Crime<\/h3>\n\n\n\n
High Crimes<\/h3>\n\n\n\n
Clock and a Calendar<\/h3>\n\n\n\n