What should be the standard of proof in a Senate impeachment trial?

[Max_S]

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, § 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, § 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, § 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, § 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.
~Max

[JohnT]

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.

[Max_S]

@JohnT

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

[JohnT]

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

[Max_S]

@JohnT

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:

@JohnT

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

[kenobi_65]

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”:

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:

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.

[JohnT]

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”.

[RickJay]

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.

[QuickSilver]

@Max_S

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.

[XT]

@kenobi_65

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 :p) is warranted. IMHO of course.

[Ravenman]

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.

[Locrian]

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.

[Akaj]

@XT

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 :p) 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?

[Max_S]

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, § 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, § 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

[JohnT]

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.

[SmellMyWort]

@Max_S

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, § 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, § 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.

[Max_S]

@kenobi_65

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”:

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 “[THREAD=882607]The Trump Impeachment Inquiry[/THREAD]” thread. If it does, I’ll be glad to resolve or admit a contradiction.

@kenobi_65

And, from that same link:

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…

@kenobi_65

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

[Hari_Seldon]

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.

[RioRico]

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.

[kenobi_65]

@Max_S

I agree with this definition though, and don’t think it contradicts what I’ve said in the “[THREAD=882607]The Trump Impeachment Inquiry[/THREAD]” 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:

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:

@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.