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Old 11-07-2019, 02:59 PM
Max S. is offline
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What should be the standard of proof in a Senate impeachment trial?


When the Senate undertakes a trial of impeachment, what standard of proof should apply, and why? If your answer is whatever standard the Senate wants to use, the followup question is this: what would you use, if you had the sole honor of writing a Senate rule prescribing the standard of proof to be used?

And if you believe impeachment of judges should follow a different standard than impeachment of executive officers, what standard do you use for each and why do you differentiate between them?

For your convenience, here are the relevant and potentially irrelevant clauses of the United States Constitution.

U.S. Const. art. I, ß 3, cl. 6
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
U.S. Const. art. I, ß 3, cl. 7
Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.
U.S. Const. art. II, ß 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
U.S. Const. art. III, ß 2, cl. 3
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
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Old 11-07-2019, 03:14 PM
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If my vote for impeachment costs me my job, then I will vote against.

If my vote against impeachment costs me my job, then I will vote for.

That's how it works. The rest is merely speculation and the topic is a better fit for IMHO.

Last edited by JohnT; 11-07-2019 at 03:15 PM.
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Old 11-07-2019, 03:17 PM
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Quote:
Originally Posted by JohnT View Post
If my vote for impeachment costs me my job, then I will vote against.

If my vote against impeachment costs me my job, then I will vote for.

That's how it works. The rest is merely speculation and the topic is a better fit for IMHO.
That's one way to look at it. What if your vote won't sway your re-election either way?

What if you aren't up for re-election for another four years, and you think it will blow over by then?

ETA: What if you, private citizen JohnT, had the honor of writing (and guarantee of it being adopted) a Senate rule that will decide the standard of proof to be used for the foreseeable future? Your job isn't even on the line in that situation.

~Max

Last edited by Max S.; 11-07-2019 at 03:20 PM.
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Old 11-07-2019, 03:24 PM
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1. Any attempt to use my tax dollars in an attempt to bribe and extort a foreign government as to steal my vote is impeachable.

The weight of the evidence already presented me by the White House has led me to the following conclusion:

2. Donald Trump openly, and repeatedly, did #1.

Therefore,

3. He deserves a guilty vote in the Senate
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Old 11-07-2019, 03:42 PM
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Quote:
Originally Posted by JohnT View Post
1. Any attempt to use my tax dollars in an attempt to bribe and extort a foreign government as to steal my vote is impeachable.

The weight of the evidence already presented me by the White House has led me to the following conclusion:

2. Donald Trump openly, and repeatedly, did #1.

Therefore,

3. He deserves a guilty vote in the Senate
Yes, given #1 #2 and #3 I would also agree with you. But I think you have accidentally sidestepped the question. I want to zone in on this:
Quote:
Originally Posted by JohnT View Post
The weight of the evidence already presented me by the White House has led me to the following conclusion
Either you are a Senator talking to another Senator (me) and neither of our votes will determine our re-elections, or you are writing the Senate rule to determine the standard of proof. I'm looking for a general rule that I can follow to reach the same conclusion, not a "defer to JohnT on whether the defendant should be convicted".

What is the threshold at which you want an individual Senator to go from, "I'm not convinced yet" to "I'm convinced"?

~Max

Last edited by Max S.; 11-07-2019 at 03:43 PM. Reason: the defendant
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Old 11-07-2019, 03:43 PM
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OK, I'll play along here, in part because the OP's numerous points in the Elections thread show that he has a non-standard, more strict view of what "reasonable doubt" means.

First, let me quote from two entries from an online legal dictionary.

First, "Beyond a Reasonable Doubt":

Quote:
The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

If the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.

The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented.
And, from that same link:

Quote:
Beyond a reasonable doubt is the highest standard of proof that must be met in any trial. In civil litigation, the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and Convincing Proof is evidence that establishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which money damages are the common remedy.
(Bolding mine)

Keep in mind: impeachment is NOT a criminal trial. If a President is removed from office, he does NOT go to prison, he does NOT face a firing squad, he is not even forced to pay a fine. He simply LOSES HIS JOB.

Impeachment is, fundamentally, an employment disciplinary process. The House conducting an Impeachment inquiry, and holding a vote, is fundamentally the government's HR department determining if there's sufficient evidence that the President has not been performing the duties of his job. The Senate trial is fundamentally the goverment's board of directors deciding whether or not to discharge the President from his job.

If "beyond a reasonable doubt" isn't even the usual standard in a civil trial (e.g., a lawsuit), I see no reason why it should be the criterion for firing someone, even the President.
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Old 11-07-2019, 03:49 PM
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Correct. In an HR review, in any right-to-work state, one can fire this guy at will, for any reason.

Given that's the standard Republican policy makers expect employees to work under, that they can merely be fired for displeasing their bosses, I do not see why insisting the President working under the same rules could be, in any way, be considered "unfair".

Last edited by JohnT; 11-07-2019 at 03:51 PM.
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Old 11-07-2019, 03:56 PM
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kenobi 65 has hit on the salient point, which is that it's not a criminal trial, and need not even be about actual felonies.

What evidence would *I* choose? I'd go with "clear and convincing evidence." As you need to get two thirds of the Senate to agree, that seems enough.
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Old 11-07-2019, 04:00 PM
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Originally Posted by Max S. View Post
That's one way to look at it. What if your vote won't sway your re-election either way?

What if you aren't up for re-election for another four years, and you think it will blow over by then?

ETA: What if you, private citizen JohnT, had the honor of writing (and guarantee of it being adopted) a Senate rule that will decide the standard of proof to be used for the foreseeable future? Your job isn't even on the line in that situation.

~Max
What if you took an oath to defend the Constitution and not your job of political party, and acted accordingly? Wouldn't that be something.
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Old 11-07-2019, 04:04 PM
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Quote:
Originally Posted by kenobi 65 View Post
OK, I'll play along here, in part because the OP's numerous points in the Elections thread show that he has a non-standard, more strict view of what "reasonable doubt" means.

First, let me quote from two entries from an online legal dictionary.

First, "Beyond a Reasonable Doubt":



And, from that same link:



(Bolding mine)

Keep in mind: impeachment is NOT a criminal trial. If a President is removed from office, he does NOT go to prison, he does NOT face a firing squad, he is not even forced to pay a fine. He simply LOSES HIS JOB.

Impeachment is, fundamentally, an employment disciplinary process. The House conducting an Impeachment inquiry, and holding a vote, is fundamentally the government's HR department determining if there's sufficient evidence that the President has not been performing the duties of his job. The Senate trial is fundamentally the goverment's board of directors deciding whether or not to discharge the President from his job.

If "beyond a reasonable doubt" isn't even the usual standard in a civil trial (e.g., a lawsuit), I see no reason why it should be the criterion for firing someone, even the President.
This seems spot on to me. If it were my choice, it's pretty close to the criteria I'd use. Of course, the reality is that the Senate will vote by strictly party lines, unless the evidence is so overwhelmingly bad that the Republicans have no choice but to face facts...which seems unlikely to me at this point, based on how things have gone so far.

But just using kenobi 65's criteria here, and his (IMHO excellent) analogy to this being an HR matter with workplace abuse, I think that any reasonably unbiased viewer (which I definitely am not) would find Trump has violated many workplace rules and definitely crossed the line to the point where termination of his position (with extreme prejudice of course ) is warranted. IMHO of course.
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Old 11-07-2019, 04:25 PM
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When Clarence Thomas was nominated for the Supreme Court, there were good questions about the burden of proof for a nomination. Should the Senate give the benefit of the doubt to Hill? Or to Thomas?

Senator Byrd proposed that the benefit of the doubt be given to the integrity of the Supreme Court. I think that is a far more useful construct, as opposed to the comparing this to the process of an article III proceeding.

After all, the matter being considered is not one of fines or imprisonment -- it is fundamentally a question of the integrity of our government and its officeholders. The United States elects a Vice President for a reason, in that the graveyards are full of indispensable people.
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Old 11-07-2019, 04:48 PM
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This shouldn't be that complicated. Forget the obstructions, extortion, emoluments fraud, tax, fraud, etc. Is the president an idiot? Yes. Evidence? Pick any 10 tweets. There's your standard of proof in a Senate Impeachment trial. Why we need to go beyond that is, well, beyond me.
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Old 11-07-2019, 05:04 PM
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Originally Posted by XT View Post
But just using kenobi 65's criteria here, and his (IMHO excellent) analogy to this being an HR matter with workplace abuse, I think that any reasonably unbiased viewer (which I definitely am not) would find Trump has violated many workplace rules and definitely crossed the line to the point where termination of his position (with extreme prejudice of course ) is warranted. IMHO of course.
I'd suggest extending the workplace analogy even further, as if the president was a corporate CEO and the Senate was the company's board. So my standard would be:
Has this president (CEO) acted deliberately to place his own advancement and/or enrichment ahead of the that of the country (corporation)?
I think any board answering yes to that question would fire the CEO in a heartbeat. Should the Senate have a higher standard?
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Old 11-07-2019, 05:26 PM
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Max's Opinion


My opinion is that the standard should be beyond a reasonable doubt, especially when the articles of impeachment are criminal in nature and expose the defendant to criminal liability should he be convicted.

I put emphasis on the text of U.S. Const. art. III, ß 2, cl. 3:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Where it says "The Trial of all crimes, except in Cases of Impeachment" I interpret to mean that at least some cases of impeachment can be criminal in nature. At least some of the time, either the impeachment trial itself is a criminal trial without a normal jury, or conviction by the Senate deprives the accused of their right to a trial by jury in the criminal trials that follow (should they follow rather than proceed).

Certainly, impeachment under historic laws of England was often followed by criminal if not capital punishment. The Constitution makes clear that these shall not be the consequences of impeachment, U.S. Const. art. I, ß 3, cl. 7. Or at least there must be a law on the books criminalizing the same acts, in that case the consequence may very well be criminal or capital punishment. I think the purpose of that clause is to prevent the political body (Congress) from pressuring civil officers to do their bidding on pain of death, not to reduce impeachment trials to civil if not less restrictive standards. So it's more in-line with the whole no bill of attainder thing.

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Old 11-07-2019, 05:38 PM
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Yes, and the Constitution allows for criminal hearings against the impeached after impeachment, so I'm not at all sure why placing a higher standard prior to these trials needs to be done.

Anyway, the President isn't a King. He's an employee, and this one is a failed one at that. Kick his ass out and get a new boss.
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Old 11-07-2019, 06:03 PM
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Originally Posted by Max S. View Post
My opinion is that the standard should be beyond a reasonable doubt, especially when the articles of impeachment are criminal in nature and expose the defendant to criminal liability should he be convicted.

I put emphasis on the text of U.S. Const. art. III, ß 2, cl. 3:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Where it says "The Trial of all crimes, except in Cases of Impeachment" I interpret to mean that at least some cases of impeachment can be criminal in nature. At least some of the time, either the impeachment trial itself is a criminal trial without a normal jury, or conviction by the Senate deprives the accused of their right to a trial by jury in the criminal trials that follow (should they follow rather than proceed).

Certainly, impeachment under historic laws of England was often followed by criminal if not capital punishment. The Constitution makes clear that these shall not be the consequences of impeachment, U.S. Const. art. I, ß 3, cl. 7. Or at least there must be a law on the books criminalizing the same acts, in that case the consequence may very well be criminal or capital punishment. I think the purpose of that clause is to prevent the political body (Congress) from pressuring civil officers to do their bidding on pain of death, not to reduce impeachment trials to civil if not less restrictive standards. So it's more in-line with the whole no bill of attainder thing.

~Max
To extend the work example, if I'm competing with a coworker for a promotion and I sabotage her work, spread rumors, etc in an attempt to better my chances at the job, and then that all gets exposed, I'd expect to be fired for breaking various codes of conduct of my employer. Then, if anything I did broke a law, I might expect my former coworker to file charges against me.

There isn't anything in the clauses you quoted that indicates that the standard is or should be the same, and I'd argue that the very fact that Clause 7 specifically differentiates between removal and subsequent legal proceedings is evidence that the standards are not meant to be equal.
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Old 11-07-2019, 06:13 PM
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Originally Posted by kenobi 65 View Post
OK, I'll play along here, in part because the OP's numerous points in the Elections thread show that he has a non-standard, more strict view of what "reasonable doubt" means.

First, let me quote from two entries from an online legal dictionary.

First, "Beyond a Reasonable Doubt":
Quote:
The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

If the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.

The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented.
I agree with this definition though, and don't think it contradicts what I've said in the "The Trump Impeachment Inquiry" thread. If it does, I'll be glad to resolve or admit a contradiction.

Quote:
Originally Posted by kenobi 65 View Post
And, from that same link:
Quote:
Beyond a reasonable doubt is the highest standard of proof that must be met in any trial. In civil litigation, the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and Convincing Proof is evidence that establishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which money damages are the common remedy.
(Bolding mine)

Keep in mind: impeachment is NOT a criminal trial. If a President is removed from office, he does NOT go to prison, he does NOT face a firing squad, he is not even forced to pay a fine. He simply LOSES HIS JOB.
Unless he is impeached on criminal grounds, in which case he is certain to face criminal charges and possibly punishment immediately after being removed from office, possibly without the benefit of a jury trial (depending on how you interpret Article III and Amendments V, VI, XIV, and statutory law).

Actually, I'm starting to think I am overlooking something important. I can't put my finger on it though...
Quote:
Originally Posted by kenobi 65 View Post
Impeachment is, fundamentally, an employment disciplinary process. The House conducting an Impeachment inquiry, and holding a vote, is fundamentally the government's HR department determining if there's sufficient evidence that the President has not been performing the duties of his job. The Senate trial is fundamentally the goverment's board of directors deciding whether or not to discharge the President from his job.
Your analogy might hold well for other civil Officers, but the President is not elected by the Senate like a board of directors elects a CEO. True, the Senate can remove a president just like a board can remove a CEO. But they have to hold a trial, and the removal must be ostensibly "for cause" rather than at-will. You even have the Chief Justice presiding over the removal proceedings, whereas a board of directors probably doesn't have a judge presiding over their decision to remove a CEO. The analogy breaks down in certain areas, just like the criminal analogy breaks down in certain areas. But I am also arguing that the text of the constitution itself implies that cases of impeachment can be criminal; a board of directors that wants to remove a CEO for actually breaking the law may voluntarily handicap themselves and give their CEO the benefit of the doubt. Why?

Well, the board might want the CEO to be in the right. It would work out better for the corporation's public image if it turns out that the CEO was doing the right thing all along. Presumably the board is behind the CEO, or why would they have elected him/her? Oh right, that part of the analogy doesn't hold. Well let's say the board is partisan. Both sides should want to keep their preferred CEO in power for corporate-political reasons, and therefore would demand the strictest of standards before throwing him out, and the least restrictive standards for throwing out the opposition's preferred CEO. If corporate politics is constantly shifting so that one side and the other often take turns with the board majority, it seems to me that the most stable compromise is to use the higher standard and put CEO-firing above all but the most serious and certain allegations.

~Max

Last edited by Max S.; 11-07-2019 at 06:13 PM. Reason: formatting, snip last sentence
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Old 11-07-2019, 06:49 PM
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Let me just say that in every presidential impeachment trial so far, the question of whether he did what he was accused of never arose. There was no doubt of the truth of the accusation and that was never the question. The question was always, was this an impeachable offense. And that is inherently political. So the first answer is the correct one.
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Old 11-07-2019, 06:58 PM
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After articles of impeachment are voted by the House, the Senate trial is entirely a political affair, not a criminal process. The Senate will pretend to honor rules for the trial but there will be no "standard of truth". The de facto standard will be: The prosecution presents enough nauseating evidence to give a senator cover for voting guilty. Expect each senator to vote for their own interests, which MIGHT intersect with some public or private interests.

This assumes no events occur that may preclude the Senate trial. But that's not the topic here. Nightmares are over yonder.
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Old 11-07-2019, 07:10 PM
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I agree with this definition though, and don't think it contradicts what I've said in the "The Trump Impeachment Inquiry" thread. If it does, I'll be glad to resolve or admit a contradiction.
In that thread, last week, you and I went back and forth about what "reasonable doubt" is. I pointed out (post #3456) what the legal definition is of "reasonable doubt" -- quoting myself from that post:

Quote:
Generally, prosecutors bear the burden of proof and are required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no "reasonable doubt" in the mind of a "reasonable person" that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a reasonable person's belief regarding whether or not the defendant is guilty. Beyond "the shadow of a doubt" is sometimes used interchangeably with beyond reasonable doubt, but this extends beyond the latter, to the extent that it may be considered a next to impossible standard (though at times at a trial the person is guilty beyond a shadow of a doubt, usually in such situations a plea bargain takes place to give the guilty some leniency in exchange for the time and money a trial would cost both sides). The term "reasonable doubt" is therefore used.
Then, in reply, you, in post #3463, said:

Quote:
Originally Posted by Max S.
My idea of beyond a reasonable doubt is that it must satisfy the juror such that, if their life depended on the correctness of their finding, there would be no hesitation.
That is, IMO, a *much* steeper standard than "no reasonable doubt in the mind of a reasonable person." Paraphrasing what you wrote, you are essentially saying "reasonable doubt means that you, as a juror, must be so very certain of it that you would be willing to risk your own life on your decision." And, while that may fit your own definition of "beyond a reasonable doubt," you should recognize that it really is *not* what the legal definition of the term means.

What you describe, and what I had noted in the other thread, is closer to the idea of "beyond a shadow of a doubt," but the idea of "beyond a shadow of a doubt" is *not* what jurors are instructed to use as a guide in criminal trials.

Last edited by kenobi 65; 11-07-2019 at 07:11 PM.
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Old 11-07-2019, 07:22 PM
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Originally Posted by Max S. View Post
My opinion is that the standard should be beyond a reasonable doubt, especially when the articles of impeachment are criminal in nature and expose the defendant to criminal liability should he be convicted.

I put emphasis on the text of U.S. Const. art. III, ß 2, cl. 3:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Where it says "The Trial of all crimes, except in Cases of Impeachment" I interpret to mean that at least some cases of impeachment can be criminal in nature. At least some of the time, either the impeachment trial itself is a criminal trial without a normal jury, or conviction by the Senate deprives the accused of their right to a trial by jury in the criminal trials that follow (should they follow rather than proceed).

Certainly, impeachment under historic laws of England was often followed by criminal if not capital punishment. The Constitution makes clear that these shall not be the consequences of impeachment, U.S. Const. art. I, ß 3, cl. 7. Or at least there must be a law on the books criminalizing the same acts, in that case the consequence may very well be criminal or capital punishment. I think the purpose of that clause is to prevent the political body (Congress) from pressuring civil officers to do their bidding on pain of death, not to reduce impeachment trials to civil if not less restrictive standards. So it's more in-line with the whole no bill of attainder thing.
Just to cut through this contrived nonsense, you support likely criminals holding high office because you are not certain that they are criminals?

You have a much lower standard of ethics for government than I have every encountered. People used to agree that the appearance of impropriety - not felonies, just misdeeds - was the acceptable standard for public officials to hold themselves to. Now you propose to demolish that standard for the mostly highly restrictive one that we have as a society.

Youíre literally putting removal from office on the same plane as sentencing someone to the death penalty.

This is a horrible, horrible idea that would debase our government and give carte blanche for politicians at every level to lower themselves to the standards of literal criminals. Itís such a horrible idea that is so clearly not thought through that itís offensive to the whole concept of integrity in public life.
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Old 11-07-2019, 07:33 PM
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Originally Posted by kenobi 65 View Post
That is, IMO, a *much* steeper standard than "no reasonable doubt in the mind of a reasonable person." Paraphrasing what you wrote, you are essentially saying "reasonable doubt means that you, as a juror, must be so very certain of it that you would be willing to risk your own life on your decision." And, while that may fit your own definition of "beyond a reasonable doubt," you should recognize that it really is *not* what the legal definition of the term means.
I don't think that quote you just reposted, from Wikipedia I believe, actually provides a definition of reasonable doubt. Defining a beyond a reasonable doubt as "There can still be a doubt, but only to the extent that it would not affect a reasonable person's belief regarding whether or not the defendant is guilty" is effectively replacing "doubt" with "belief regarding whether or not the defendant is guilty". We already knew what "doubt" means, the operative word is "reasonable". The Wikipedia blurb shines no light on what is "reasonable", except to say that some things are not reasonable.

Your new quote from legal-dictionary.thefreedictionary.com (post #6) actually defines "beyond a reasonable doubt" as "that no other logical explanation can be derived from the facts except that the defendant committed the crime".

This definition is consistent with mine, and perhaps this is not true of all people, but I am comfortable putting my life behind a conviction that is the only logical explanation that can be derived from the facts.

I will also point you to the federal jury instructions in effect for the Eleventh Circuit, which covers my state of Florida.

The Government's burden of proof is heavy, but it doesn't have to prove a Defendant's guild beyond all possible doubt. The Government's proof only has to exclude any "reasonable doubt" concerning the Defendant's guilt.

A "reasonable doubt" is a real doubt, based on your reason and common sense after you've carefully and impartially considered all the evidence in the case.

"Proof beyond a reasonable doubt" is proof so convincing that you would be willing to rely and act on it without hesitation in the most important of your own affairs. If you are so convinced that the Defendant has been proved guilty beyond a reasonable doubt, say so. If you are not convinced, say so.
I think I once said beyond a reasonable doubt was beyond all possible doubt, I admit that I was wrong and would prefer the newer definition that you quoted:
Quote:
Originally Posted by Max S. View Post
My idea of beyond a reasonable doubt is that it must satisfy the juror such that, if their life depended on the correctness of their finding, there would be no hesitation.
The logic being that, arguably, the most important of one's affairs is their own life.

~Max
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Old 11-07-2019, 07:35 PM
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You want people to be willing to risk their lives on the proposition that a politician is unfit for office. Disgusting.
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Old 11-07-2019, 07:39 PM
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What if you took an oath to defend the Constitution and not your job of political party, and acted accordingly? Wouldn't that be something.
Yes, well I would much rather look at things that way too. But what effect does that oath have on the standard of proof?

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Old 11-07-2019, 07:40 PM
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Yes, and the Constitution allows for criminal hearings against the impeached after impeachment, so I'm not at all sure why placing a higher standard prior to these trials needs to be done.
Not higher, the same (I think?).

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  #26  
Old 11-07-2019, 07:43 PM
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To extend the work example, if I'm competing with a coworker for a promotion and I sabotage her work, spread rumors, etc in an attempt to better my chances at the job, and then that all gets exposed, I'd expect to be fired for breaking various codes of conduct of my employer. Then, if anything I did broke a law, I might expect my former coworker to file charges against me.
But if there's a chance that and employee actually wasn't breaking any codes of conduct, would you (as the employer) still have the same reaction? Because that's the part I'm talking about here. That's the point where you, the employer, decide whether to cut the investigation short and kick them out, or keep building a stronger case.

Of course real employers can use paid/unpaid leave which isn't an option here.

~Max
  #27  
Old 11-07-2019, 07:48 PM
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Let me just say that in every presidential impeachment trial so far, the question of whether he did what he was accused of never arose. There was no doubt of the truth of the accusation and that was never the question. The question was always, was this an impeachable offense. And that is inherently political. So the first answer is the correct one.
I don't want to drag this thread off topic but there are some cases where an offense hinges on motivation or intent, for example abuse of authority (in my opinion) hinges on intent. So standards of proof come into play when determining intent.

If you believe that there are no impeachable offenses that hinge on intent, I am willing to agree to disagree for the purposes of this thread.

~Max
  #28  
Old 11-07-2019, 07:53 PM
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After articles of impeachment are voted by the House, the Senate trial is entirely a political affair, not a criminal process. The Senate will pretend to honor rules for the trial but there will be no "standard of truth". The de facto standard will be: The prosecution presents enough nauseating evidence to give a senator cover for voting guilty. Expect each senator to vote for their own interests, which MIGHT intersect with some public or private interests.

This assumes no events occur that may preclude the Senate trial. But that's not the topic here. Nightmares are over yonder.
Yes, I agree in the basic principle (affirmed multiple times in the past) that the individual Senators should be able to determine for themselves the appropriate standard of proof. I'm sure at least some of them will simply vote how they think their constituents want them to vote. I'm sure some of them will vote solely based on the party affiliation of the defendant (I'm looking at you, Mr. Scott! argh!).

I'm not interested in those Senators. This question and thread is meaningless with regards to them. I'm looking for guidance as to how a Senator with some kind of principles might vote, or alternatively one who has no overriding incentive to vote either way.

Maybe they don't exist. In that case this is just a nice thought experiment... I guess it's a thought experiment anyways, unless one of us is a Senator.

~Max
  #29  
Old 11-07-2019, 08:07 PM
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Just to cut through this contrived nonsense, you support likely criminals holding high office because you are not certain that they are criminals?
I don't support them, but I don't support their removal. After all, removing a President is effectively overriding the electoral college - a major pillar of our particular republican government. It's not something I want to do without being certain.

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People used to agree that the appearance of impropriety - not felonies, just misdeeds - was the acceptable standard for public officials to hold themselves to. Now you propose to demolish that standard for the mostly highly restrictive one that we have as a society.
I absolutely believe public officials should hold themselves above the appearance of impropriety. I don't think it should be forced into the system.

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Youíre literally putting removal from office on the same plane as sentencing someone to the death penalty.
I think overriding a presidential election is that important. It's a form of disenfranchisement, and I take the basic position that disenfranchisement on the scale of a presidential election is at least worth the caution taken when making a judgement of life and death.

I do not extend this to nonpresidential impeachments, by the way. Possibly to the Vice President but I'm leaning towards not as important for him either.

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This is a horrible, horrible idea that would debase our government and give carte blanche for politicians at every level to lower themselves to the standards of literal criminals. Itís such a horrible idea that is so clearly not thought through that itís offensive to the whole concept of integrity in public life.
But I'm not arguing that potential criminals should be above the law or immune from impeachment and conviction. I don't see why or how you reached that conclusion.

~Max
  #30  
Old 11-07-2019, 08:10 PM
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You want people to be willing to risk their lives on the proposition that a politician is unfit for office. Disgusting.
We can agree to disagree, or we can talk about it. I'm trying to keep an open mind.

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  #31  
Old 11-07-2019, 08:19 PM
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I don't support them, but I don't support their removal. After all, removing a President is effectively overriding the electoral college - a major pillar of our particular republican government. It's not something I want to do without being certain.
You would rather a likely criminal keep public office than a likely criminal be removed from office. Thatís literally what youíre arguing.

Quote:
I absolutely believe public officials should hold themselves above the appearance of impropriety. I don't think it should be forced into the system.
The system includes a mechanism removal from office.

Quote:
I think overriding a presidential election is that important. It's a form of disenfranchisement, and I take the basic position that disenfranchisement on the scale of a presidential election is at least worth the caution taken when making a judgement of life and death.
I think thatís putting politicians above the integrity of government.

Quote:
I do not extend this to nonpresidential impeachments, by the way. Possibly to the Vice President but I'm leaning towards not as important for him either.
Oh boy, I canít wait to hear from the Trump voter how special rules apply only to the President at this particular moment.

Quote:
But I'm not arguing that potential criminals should be above the law or immune from impeachment and conviction. I don't see why or how you reached that conclusion.
I read your arguments as being transparently in defense of the President, dressed up with some garnishes of tut-tutting and maybe a light finger-wag and maybe a furrowed brow, but devoid of any sense of holding public officials accountable for misdeeds in any kind of practical sense.

You might as well argue that removal from office should be a unanimous decision, because criminal juries.
  #32  
Old 11-07-2019, 08:32 PM
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You would rather a likely criminal keep public office than a likely criminal be removed from office. Thatís literally what youíre arguing.
Yes, if it cannot be proved to my satisfaction, such that I would bet my life on it, beyond a reasonable doubt that the likely criminal is, in fact, a criminal.

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Originally Posted by Ravenman View Post
The system includes a mechanism removal from office.
conceded.

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Originally Posted by Ravenman View Post
I think thatís putting politicians above the integrity of government.
We have another mechanism for preserving the integrity of government, and besides the voters have some discretion in who they elect to office.

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Oh boy, I canít wait to hear from the Trump voter how special rules apply only to the President at this particular moment.
I don't think this comment applies to me.

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Originally Posted by Ravenman View Post
I read your arguments as being transparently in defense of the President, dressed up with some garnishes of tut-tutting and maybe a light finger-wag and maybe a furrowed brow, but devoid of any sense of holding public officials accountable for misdeeds in any kind of practical sense.
Are you implying that beyond a reasonable doubt is an impractical standard? Or that my definition of it is?

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You might as well argue that removal from office should be a unanimous decision, because criminal juries.
I don't think that would be desirable, because surely some politicians are actually corrupt or inept, and besides the Senate is not impartial. I want the system to work when the great majority of people, myself included, recognize that the President ought to go. I want the system to work when a great majority of people recognize the President ought to go, even if I do not.

~Max
  #33  
Old 11-07-2019, 08:47 PM
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Yes, if it cannot be proved to my satisfaction, such that I would bet my life on it, beyond a reasonable doubt that the likely criminal is, in fact, a criminal.
Why should people bet willing their lives that someone with their finger on the nuclear trigger does not deserve office? If anything, shouldnít we not give the benefit of the doubt to someone who can kill hundreds of millions of people within 25 minutes?

Quote:
We have another mechanism for preserving the integrity of government, and besides the voters have some discretion in who they elect to office.
Gerald Ford was President for two and a half years and never stood before the American people in a national election. We shouldnít pretend that he had the mandate of the people, nor should it be assumed that future Presidents will always have such.

Quote:
Are you implying that beyond a reasonable doubt is an impractical standard?
You are proposing that a jury that is inherently biased be handcuffed to the strictest legal standard in a process that is meant to protect our system of government from harm from a single, imminently replaceable person who has the capability to do irreparable harm to not only the country but the world. Yes, itís a terrible standard, and by adopting it, it is explicit permission for all future office holders to engage in a downward spiral of deceitful and dishonest behavior, since they will know they are essential immune from harm for four years.

I want Presidents to be on their fucking toes that they arenít ordained by God and they better watch themselves or their job is at risk.
  #34  
Old 11-07-2019, 09:08 PM
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I don't want to drag this thread off topic but there are some cases where an offense hinges on motivation or intent, for example abuse of authority (in my opinion) hinges on intent. So standards of proof come into play when determining intent.

If you believe that there are no impeachable offenses that hinge on intent, I am willing to agree to disagree for the purposes of this thread.

~Max
I don't agree at all that abuse of authority hinges on intent. Especially when the person in question has very questionable morals and ethics. Abuse of authority can often happen simply from anger, confusion, and a complete and total lack of understanding of what his job is.

In Trumps case, I think the abuse of authority (among his many, many crimes) comes from his past. That's Trumps business model.

Deny
Threaten
Lawsuits to muddy the waters and drag things out
In some cases, pay off the hooker
In others, well, we know about his BFF Putin

Trump IS running the Oval Office like a business man. Only, he is a very corrupt and incompetent business man with many, many phycological problems.
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  #35  
Old 11-07-2019, 09:16 PM
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Why should people bet willing their lives that someone with their finger on the nuclear trigger does not deserve office? If anything, shouldnít we not give the benefit of the doubt to someone who can kill hundreds of millions of people within 25 minutes?
Maybe I'm not sensitive to this on account of my youth - having never done a bomb drill - but this just isn't a concern for me. I'm thinking, that just won't happen. He's not that unstable and even if he was I trust our chain of command.

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Gerald Ford was President for two and a half years and never stood before the American people in a national election. We shouldnít pretend that he had the mandate of the people, nor should it be assumed that future Presidents will always have such.
But I blame Nixon and Agnew for that - they practically admitted that it was their fault when they resigned. I wasn't around back then but voters had no scapegoats to make (despite Nixon's insistence on being innocent). They resigned.

I'm for the impeachment at this point - I think the standard of impeachment itself is much much lower, probable cause maybe. We have that, for sure. I think it is premature to send articles to the Senate until the House has exhausted all avenues for building their case, or faces some pressing time limit (like the election next November). If Trump resigns right before he is impeached, boo hoo for him. I'll have no sympathy.
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You are proposing that a jury that is inherently biased be handcuffed to the strictest legal standard in a process that is meant to protect our system of government from harm from a single, imminently replaceable person who has the capability to do irreparable harm to not only the country but the world. Yes, itís a terrible standard, and by adopting it, it is explicit permission for all future office holders to engage in a downward spiral of deceitful and dishonest behavior, since they will know they are essential immune from harm for four years.
I think it's the second strictest legal standard (the strictest being beyond all doubt), and I don't believe the President can do more harm to this nation without implicating himself under that standard than the nation did to itself by electing him.
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I want Presidents to be on their fucking toes that they arenít ordained by God and they better watch themselves or their job is at risk.
So do I, but I don't want them refusing to take a stand lest some partisan Congress remove them for a policy disagreement.

~Max
  #36  
Old 11-07-2019, 09:24 PM
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Is the president an idiot? Yes. Evidence? Pick any 10 tweets. There's your standard of proof in a Senate Impeachment trial.
That's what elections are for, not impeachments.
  #37  
Old 11-07-2019, 09:38 PM
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Maybe I'm not sensitive to this on account of my youth - having never done a bomb drill - but this just isn't a concern for me. I'm thinking, that just won't happen. He's not that unstable and even if he was I trust our chain of command.
Wait, so are you debating the standard of proof for removing Trump? Or are you arguing that all future Presidents who have command over nuclear weapons wonít be that unstable and you will trust all future chains of command?

Quote:
But I blame Nixon and Agnew for that - they practically admitted that it was their fault when they resigned. I wasn't around back then but voters had no scapegoats to make (despite Nixon's insistence on being innocent). They resigned.
This has nothing to do with what I wrote. You argued that it should be hard to reverse elections. Iím making the point that Presidents are not always elected. Further, arenít Vice Presidents also elected?

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So do I, but I don't want them refusing to take a stand lest some partisan Congress remove them for a policy disagreement.
The Constitution already addresses this fear.
  #38  
Old 11-07-2019, 10:17 PM
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Maybe I'm not sensitive to this on account of my youth - having never done a bomb drill - but this just isn't a concern for me.
...then perhaps you should be looking some of this history up. Whats happening right now in the Ukraine, whats happening in Korea, its all kinda related. It should be a concern for you.

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I'm thinking, that just won't happen. He's not that unstable
LOL. We are talking about President Donald "Shoot-em-in-the-leg-build-an-alligator-moat" Trump, right?

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and even if he was I trust our chain of command.
Would you care to walk us all through this? If President Trump were to order a nuclear strike right now, who in the chain of command would have the lawful authority to countermand that order?
  #39  
Old 11-07-2019, 10:53 PM
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I'm looking for guidance as to how a Senator with some kind of principles might vote, or alternatively one who has no overriding incentive to vote either way.
I'd quip that "a Senator with some kind of principles" is oxymoronic but that's too glib. Politicians do possess principles of sorts. But I expect any semi-rational politician to do what they feel will damage them the least. If that accords with their principles, fine. If their principles include rampant discrimination, not so fine.

I don't expect to see principles driving senators to commit political suicide. I don't know of a senator with "no overriding incentive to vote either way". But I don't know them all.

I've a feeling the ultimate "standard of proof" will be overwhelming constituent pressure.
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Old 11-07-2019, 11:08 PM
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If President Trump were to order a nuclear strike right now, who in the chain of command would have the lawful authority to countermand that order?
Lawfully, nobody. Unlawfully, we'd have a coup, IMHO a cure only slightly better than the disease. But I'll try to stay on-topic. If a presidential aide testifies that this POTUS talked of a "diversionary" attack, would that be evidence enough for the Senate to vote guilty? Or would a "standard of proof" require truth serum?
  #41  
Old 11-07-2019, 11:15 PM
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What is the threshold at which you want an individual Senator to go from, "I'm not convinced yet" to "I'm convinced"?
Proof of criminality would be more than enough, proof of civil liability would definitely be enough.

The sufficient standard of proof for a Senator is whatever they feel disqualifies a person to be President. It need not be criminal, it need not even be a tort. If the House has decided it's serious enough to refer an impeachment charge, and the Senate agrees, then that's enough.

Personally I think Trump has done more than enough to merit impeachment, if I'm a potential juror. Holding up congressionally mandated military aid to Ukraine, for the purpose of damaging his political opponent, is easily enough to rate removal on its own. I think the House is going after that because it's the most bright-line violation and the hardest one to justify, but there are at least a dozen other things I'd impeach Trump for. There are years of emoluments violations alone in how he's using the presidency to enrich his hotel business.
  #42  
Old 11-08-2019, 12:29 AM
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I am amazed this thread has gone on so long. The correct answer was the first one given. Kenobi 65 clarified with an excellent post.

That's it. An individual senator will apply whatever metric they want to reason away their choice. They will all convince themselves they have a good reason be it self serving or principled or some combination.

As has been mentioned this is a political process to its core. This is not a legal proceeding. There is ZERO need for a crime of any sort whatsoever. Indeed, "conduct unbecoming" is quite often floated as a good enough excuse. But really, it can be anything congress says it is. Anything at all.

As a practical matter impeaching because you do not like the president's tie will not fly well with the public so congress needs something better. It is a BIG deal so congress knows it needs a BIG reason but, technically (legally), they can drum up any reason they want.

As a political matter they need more than made up stuff and here we are.
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  #43  
Old 11-08-2019, 06:40 AM
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Max S., you've mentioned that, in this case, since there could be criminal charges brought after impeachment and removal, the standard should be "beyond a reasonable doubt." I'm no lawyer, but I doubt the fact of impeachment and removal would be admissible in a subsequent criminal trial, so (hypothetically) shouldn't affect such a trial either way.

Furthermore, the prosecutors would do a criminal investigation, which is not what the House is doing, and the prosecutors could uncover evidence that brings the level of proof from whatever the Senate ends up using to "beyond a reasonable doubt." So, can we agree that the possible existence of a future criminal trial should have no effect on what the Senate's standard of proof is?

And, since we're on the subject, would you require a different standard of proof for a president looking at impeachment for non-criminal offenses, since there's no possibility of a subsequent criminal trial? If so, I submit that you're using the wrong standard, since (as has been pointed out repeatedly), this isn't a criminal process.

Finally, the president could face a criminal trial whether or not he's impeached, it would just have to wait until he's out of office, so I don't see why criminal standards should apply to impeachment anyway.
  #44  
Old 11-08-2019, 08:18 AM
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That's what elections are for, not impeachments.
I voted for Dems so they could impeach the sonuvabitch.
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Old 11-08-2019, 09:59 AM
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I voted for Dems so they could impeach the sonuvabitch.
And I'll do it again so they can jail the motherfucker.
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  #46  
Old 11-08-2019, 10:17 AM
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1. In Nixon's case, there was an audio recording establishing Nixon's guilt, wasn't there? Not much room for doubt when you have a tape, and a chain of custody for that tape, made by government officials at the highest level of trust.
2. In Clinton's case, there was a stained dress and a court transcript where Clinton perjured himself.
3. In Trump's case, there's a transcript and probably audio recordings and text messages of each call. As well as internal government documents, tons of them, where witnesses to this note that they perceived immediate and serious lawbreaking.

So the question isn't really one of "doubt" in any of these cases. It's a question of whether the crime - which we are 99.999% sure happened - was actually serious enough for members of the same party as the president to vote against him.

Last edited by SamuelA; 11-08-2019 at 10:17 AM.
  #47  
Old 11-08-2019, 10:25 AM
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IMO the strongest argument against the reasonable doubt standard is that the President, with the powers of the executive branch at their disposal, has unequalled ability to suppress evidence and obstruct investigations. Imagine a President as corrupt as Trump, but competent and charismatic and capable of inspiring loyalty from their subordinates.

But that's balanced against the fact that removing an elected President is overriding the Democratic will of the people, and should not be easy. Preponderance of the evidence as in a civil trial is not enough - "2/3 of the Senate think there's a 50.1% chance the President did something impeachable" is far too low a barrier.

So, I would choose the beyond reasonable doubt standard as long as obstruction of justice is an impeachable offense too. It's a lot harder to cover up the cover-up than to cover up the original offense.

And the "would you hesitate to bet your life on it" standard is ridiculous. I wouldn't bet my life on the claim that I've had coffee this morning, and I'm looking at the empty cup on my desk.
  #48  
Old 11-08-2019, 10:35 AM
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It appears to me that impeachment only resembles a legal trial in that the prosecution is trying to create a narrative of offense in the public mind. In a court of law that would be where the beyond reasonable doubt would come in, but an actual law must be demonstrated to have been almost certainly broken. There is no law, for example, against getting a blow job from someone who isn't your wife, and one instance of perjury under those circumstances would only impeach someone who had already aroused a wave of hatred from powerful enemies for entirely different reasons.

Impeachment is all about creating a plausible story for the public, not the senate. If enough citizens, in the right states, want him impeached, impeached he will be. Otherwise he won't. According to that theory, so far he's safe.
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Old 11-08-2019, 10:51 AM
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The standard of proof is determined by each senator. That's all it should be. And each citizen can be one of the people setting the standard of proof for re-electing a senator based on their decision. Nothing except voting for better people will improve the situation.
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Old 11-08-2019, 12:49 PM
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What evidence would *I* choose? I'd go with "clear and convincing evidence." As you need to get two thirds of the Senate to agree, that seems enough.
I might be convinced to back down to clear and convincing evidence. At least for noncriminal offenses.

~Max
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