# What should be the standard of proof in a Senate impeachment trial?
**URL:** https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141
**Category:** Great Debates
**Created:** [November 7, 2019, 7:59pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141 "2019-11-07T19:59:17Z")
**Posts on this page:** 20
**Page:** 4
### Author:  [@bobot](https://boards.straightdope.com/u/bobot)
#### Post date: [November 8, 2019, 8:01pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/61 "2019-11-08T20:01:35Z")
They’re certainly a piece of the puzzle.
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### Author:  [@RioRico](https://boards.straightdope.com/u/RioRico)
#### Post date: [November 8, 2019, 8:22pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/62 "2019-11-08T20:22:27Z")
> [@tastysandwiches](#):
>
> 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.
This POTUS is a product of the undemocratic electoral system, not “the Democratic will of the people”, who preferred Ms Clinton. As with gerrymandering, losers take power. Sad.
As for crimes: this POTUS has bragged of committing obstruction, and admitted a role in a conspiracy to violate federal election laws. But again, the Senate trial is political, not criminal. “High crimes” are not necessarily statutory violations but rather abuses of power. A Ukrainian _quid-pro-quo_ violates the foreign emoluments clause as well as election laws, and degrades the office of the presidency, so we have both low and high crimes already evident.
This POTUS has already convicted himself. We’ll see if GOP senators care.
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 8, 2019, 9:04pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/63 "2019-11-08T21:04:50Z")
> [@Ravenman](#):
>
> Being a loose cannon and warmonger is not a mental disability.
What do you mean by this?
> [@Ravenman](#):
>
> So only elected Presidents benefit from your standard of proof? And do you see the standard of proof for impeachment of a Chief Justice to be different than an associate justice, too?
Yes, I am treating the President and Vice President differently from other civil officers on account of their being elected indirectly by the states. I don’t presently see a reason to hold the Chief Justice to a different standard than Associate Justices. I’m thinking it should be clear & convincing evidence.
> [@Ravenman](#):
>
> The Constitution says that high crimes and misdemeanors is the standard for removal from office. You may say that there’s no way to enforce that, and it could be abused to remove a President for policy differences. But piling on another unenforceable standard on top of what the Constitution requires doesn’t address the issue. If the Senate as a body is going to disregard the Constitution and remove a President for policy matters, what good does your “beyond reasonable doubt” do? In fact, it does harm, as I’ve argued, by making Presidents even more immune from being removed from office for misconduct.
The two extremes are not no standard at all versus beyond a reasonable doubt. The two extremes are no standard at all versus no removal power at all.
I am actually comfortable with the current setup, where each senator decides for his or her self what standard to use. The Senate has two or three times debated whether to handicap themselves with a mandatory standard of proof (beyond a reasonable doubt I believe), and each time we see a resounding rejection of an actual standard rule.
But that’s not what I am trying to debate here - clearly the standard is going to be acquittal for most Republicans until it becomes politically untenable - I want to know how an individual senator _should_ consider the evidence, on principle and removed from self-interested politics.
With all of the other lesser standards, it is easy to dress up partisan accusations and overcome the burden of proof; but it is also quite difficult for a corrupt President to stay in office when Congress is against him. If the standard is beyond a reasonable doubt, then even if the accusations come from a partisan Congress, it is extremely difficult to remove an innocent President (thus wrongfully disenfranchising the states which elected him).
We could frame this as a safety versus liberty thing. On the one hand we have a corrupt President who threatens our safety, on the other hand we have a corrupt Congress who threatens states’ liberties. I’ll pick the corrupt President.
Take this to the extreme, the most slippery slope I can think of: at the beginning of each Presidential term, if the incoming president lost the popular vote, Congress announces their own President of the People (whoever won the popular vote) with official resolutions. Congress then passes a law naming the President of the People second in line for Presidential succession. The very same day they impeach and convict the President and Vice President. All constitutional as far as I can tell, unless SCOTUS thinks they have jurisdiction if the disgraced President/VP or disenfranchised states sue.
> [@Ravenman](#):
>
> Question for you on this “he could face a criminal trial sometime later so we should pre-empt that with an equal standard of proof.” Should this same idea apply to civil matters which could later become criminal matters? Like, let’s say Exxon pollutes my groundwater and I sue, arguing that they intentionally discarded toxic chemicals in serious violation of environmental laws.
>
> If the judge recognizes that the misconduct is possibly so severe that Exxon employees could face criminal charges in the future for their horrible actions, should the burden of proof in my civil trial also be raised so that I have to prove beyond a reasonable doubt their culpability?
No, I don’t think it should. But the standard of proof isn’t that of a criminal case because a convicted president could face impeachment later, it is because the Constitution itself either implies that the impeachment case is criminal itself, or because conviction for impeachment deprives the ex-president of the right to a trial by jury. I’m going with the first interpretation.
That removing an elected president disenfranchises the states is a second, independent line of argument.
~Max
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 8, 2019, 9:30pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/64 "2019-11-08T21:30:49Z")
> [@eschrodinger](#):
>
> Putting aside nuclear war, what if the accusation, which you think is likely, but not beyond a reasonable doubt, true, is that the President has taken steps to undermine the next Presidential election such that there would be serious doubts about whether it was a free and fair election. So the alternative to removal following impeachment – being voted out – is seriously undermined?
Of course, that is the present accusation. ☹
As such my current opinion was formed with that particular example in mind…
I think I’ve contradicted myself… I’ll think about it some more.
> [@eschrodinger](#):
>
> I can’t think of any legal use of a beyond all doubt standard in the US. Do you have an example? BRD is the highest legal standard of persuasion in actual use in the US, as far as I am aware.
Right, beyond a reasonable doubt is the highest standard used here. I think beyond all doubt was used in Ireland or something, before beyond a reasonable doubt was developed.
~Max
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 8, 2019, 9:42pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/65 "2019-11-08T21:42:42Z")
> [@eschrodinger](#):
>
> Just to reiterate what I said in the lengthy post, the BRD standard or persuasion would allow you to look at “one person’s word against another’s” and decide that person A is telling the truth. As long as you are convinced of that BRD, you can convict.
I hate to disagree with you since that probably means I’m wrong, but I disagree. I as a juror can make a character judgement of a person but not if the only evidence and information about that person is a transcript of a solid deposition and an unenlightening cross examination in court. If a history of fraud and lying is accepted into evidence, that could tilt the scales. But a basic he-said she-said isn’t going to convince me beyond a reasonable doubt.
> [@eschrodinger](#):
>
> So, if Trump was on one side, telling you he never did that, he only ever made the most perfect, the best decisions about whether to order nuclear strikes, and a career civil servant, who has served the past 5 administrations gives a detailed account of exactly what happened, and **you think it sounds exactly like something Trump would do** , would you decide in Trump’s favor that the allegation had not been proved? I mean, different people can be convinced by different things, but that seems like a pretty unreasonable decision to me.
I’ve placed emphasis on what I think is the pre-existing bias that I must willfully ignore as a juror. I think that sounds exactly like something Trump would do? Why would I think that, unless something in evidence establishes a pattern from which I can infer what Mr. Trump would do?
> [@eschrodinger](#):
>
> You can say you would want more evidence, but that’s not a choice you necessarily get – jurors don’t get to say what further evidence they want to see. They have to make the call based on what they’ve seen and heard.
That’s right, I would simply say “based on the evidence presented, the defendant is not guilty”.
~Max
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### Author:  [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)
#### Post date: [November 8, 2019, 9:56pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/66 "2019-11-08T21:56:24Z")
The standard for conviction (notice, I do not use the term "guilt’) in an impeachment is summarized perfectly in Justice Potter Stewart’s 1964 comment about obscenity.
> [@Jacobellis v. Ohio](#):
>
> I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it. . .
In other words, if it looks like a duck and walks like a duck and quacks like a duck, it’s a duck, even if it calls itself President.
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### Author:  [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)
#### Post date: [November 8, 2019, 9:59pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/67 "2019-11-08T21:59:26Z")
Regardless of what the standards for impeachment _should_ be, that is not _what they are_.
This whole thread is predicated on the OP making statements that proclaimed a particular standard, which he had invented, as being the correct answer just a short while after having told everyone that they weren’t using the Constitution enough in their view of what is going on.
Debating the topic is completely fair and there is no reason not to do so to the extent that one accepts that their fanciful view of the world that should be is just a fantasy.
**Max S** , you were and still are wrong.
The standard is not the same as a criminal court. I am unaware of any evidence that it was intended to be. That current reality is not up for debate. It is the fact of the matter, from the Constitution and history, and drawing people into a debate on the related subject of fantasy-land doesn’t change the reality, it just helps you to convince yourself that the subject is up for debate.
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### Author:  [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)
#### Post date: [November 8, 2019, 10:00pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/68 "2019-11-08T22:00:53Z")
> [@D\_Anconia](#):
>
> Wrong.
>
> Ill-advised tweets do not make him “unfit”.
Who the hell said this was being done because of “ill-advised tweets”?
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### Author:  [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)
#### Post date: [November 8, 2019, 10:01pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/69 "2019-11-08T22:01:18Z")
As a Senator, the primary metric on which I would base all of my votes would be the good of the country.
To this end I would weigh the likelihood that the president committed the act he is accused of multiplied by the damage to the country in allowing someone who committed those acts to remain president, against the damage to the country done by prematurely removing a democratically elected president from power. The latter not being insignificant.
So if there is a 99% liklihood that the president lied about a blow job, then I probably wouldn’t vote to impeach, but if there was a 60% chance the the president tried to launch a nuclear strike at Russia because they insulted his hair (taking into account that given the low likelihood of this happening would have to mean that fairly good evidence would be required to raise it liklihood to 60%) then I probably would vote to convict.
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 8, 2019, 10:35pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/70 "2019-11-08T22:35:49Z")
> [@Sage\_Rat](#):
>
> Regardless of what the standards for impeachment _should_ be, that is not _what they are_.
>
> This whole thread is predicated on the OP making statements that proclaimed a particular standard, which he had invented, as being the correct answer just a short while after having told everyone that they weren’t using the Constitution enough in their view of what is going on.
>
> Debating the topic is completely fair and there is no reason not to do so to the extent that one accepts that their fanciful view of the world that should be is just a fantasy.
>
> **Max S** , you were and still are wrong.
>
> The standard is not the same as a criminal court. […] That current reality is not up for debate. It is the fact of the matter, from the Constitution and history, and drawing people into a debate on the related subject of fantasy-land doesn’t change the reality, it just helps you to convince yourself that the subject is up for debate.
I’ll concede all of that.
~Max
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### Author:  [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)
#### Post date: [November 8, 2019, 10:47pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/71 "2019-11-08T22:47:52Z")
In case anyone wants to read what the nonpartisan Congressional Research Service concluded about the standard of proof in an impeachment trial: [Standard of Proof in Senate Impeachment Proceedings - EveryCRSReport.com](https://www.everycrsreport.com/reports/98-990.html)
I think this is an interesting discussion, and I appreciate Max creating this thread so as not to hijack the other thread where it came up. I also am not seeing any bad faith arguments. I see arguments I disagree with, but also the willingness to take in new information, and concede ground. It’s a good discussion.
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### Author:  [@kenobi\_65](https://boards.straightdope.com/u/kenobi_65)
#### Post date: [November 8, 2019, 11:09pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/72 "2019-11-08T23:09:46Z")
**eschroedinger** , thank you for weighing in, and providing clarification on what “reasonable doubt” actually means in criminal courts.
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### Author:  [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)
#### Post date: [November 8, 2019, 11:47pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/73 "2019-11-08T23:47:41Z")
> [@Max\_S](#):
>
> I hate to disagree with you since that probably means I’m wrong, but I disagree. I as a juror can make a character judgement of a person but not if the only evidence and information about that person is a transcript of a solid deposition and an unenlightening cross examination in court. If a history of fraud and lying is accepted into evidence, that could tilt the scales. But a basic he-said she-said isn’t going to convince me beyond a reasonable doubt.
There’s what you are allowed to do when making a decision applying the standard, and then there is the issue of what would convince you as an individual in a particular case. If you say, in no case would I be able to find a person guilty if it came down to one person’s word against another’s, then you are, I think misunderstanding or misapplying or refusing to apply, the correct standard. If you are saying, in response to the present impeachment scenario and to hypotheticals so far proposed that you are not convinced without more, I still think you are likely misunderstanding the standard, but there’s nothing that can force you to be convinced. But you should know that you may be cutting the defendant a huge break, and holding the prosecution to an impossible standard.
But, again, a juror is allowed to make that call, as long as there is evidence to support the elements, and the juror is convinced to the required degree.
> [@](#):
>
> I’ve placed emphasis on what I think is the pre-existing bias that I must willfully ignore as a juror. I think that sounds exactly like something Trump would do? Why would I think that, unless something in evidence establishes a pattern from which I can infer what Mr. Trump would do?
>
> That’s right, I would simply say “based on the evidence presented, the defendant is not guilty”.
>
> ~Max
I did a step in there without showing my work. My apologies for not being clearer, and I suspect it may be one.on.which we disagree. An impeachment is not a criminal trial in many many ways. This is one.of them. Normally, if a person is on trial, no juror could be seated who has a relationship to the defendant of the kinds that the Senators have with the President. I think they are allowed to use their experience as part of their decision, but not everyone will agree. You could strike that bolded part and still have enough for a juror to be allowed to decide the case either way, though. Juries decide cases that way all the time. And you should allow for the possibility that one person could be so convincing, and the other so obviously lying, that you would, too. Otherwise you are applying a standard other than BRD, I think. I mean, haven’t you ever seen someone speak and been able to.tell that they are just making up the self-serving stuff they are saying? And have you ever heard someone speak and thought, that just rings true?
Anyway, it doesn’t entirely matter, because in the impeachment there is corroboration, but it also relates to the concept that you’ve mentioned about having to disprove other possible explanations, which is not legally required (but could be necessary in practice in a particular case). It is not required as part of the BRD standard.
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### Author:  [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)
#### Post date: [November 9, 2019, 4:15am UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/74 "2019-11-09T04:15:28Z")
But now, let’s entertain the question:
First, let us pretend that there is a reason for the criminal standard to be what it is and for the Presidential standard to be what it is. We will say that these decisions were not arbitrary.
Let’s say, for example, that the President commits a crime. He has murdered the First Lady, in front of a whole host of witnesses, and the police have him in handcuffs.
Now should the President go through two criminal trials, for his one crime, or one trial?
The first criminal trial is to lose the Presidency.
He must be provided with an impartial jury of random citizens, since this is a criminal trial. It would not be a true act of justice, after all, if the President was being tried by those who might be prejudiced against him, nor by those who would be prejudiced in his favor.
He must be given all of the chances afforded to him in the Bill of Rights to defend himself. That means, similarly, we must have all the same prosecutorial steps available as are in a criminal trial.
We end up having a start-to-finish criminal trial, because that format is the product of the requirements for a criminal trial as given in the Constitution. If the House does not issue the President a Miranda warning, alongside their articles of impeachment, then the President will be free to go.
And all of this to ask the question: Should we hand the President to the authorities, to be tried for murder (now that we have tried him for murder), or give him the opportunity to - possibly - exceed the Statute of Limitations by continuing to win the Presidency?
And what if the President is pronounced innocent on a technicality, in either the first or second trial? If it happens with the first, then can the President reasonably govern with everyone knowing that he is a callous murderer, taking advantage of the system?
All of this is silly.
And that is all assuming that the President has committed a crime - which is not a necessity for impeachment.
Let’s say, for example, that everyone simply missed the fact that the President had every intention of going to war with Europe during the campaign. It’s not a thing anyone would expect and no one asked; why would you?
It becomes relatively clear that he is ordering the military to do things to provoke a fight with France, Germany, etc. though he incessantly states that “They started it.” Even though, clearly, they did not. He refuses to explain the reason for his aggression, denying that it exists, “I love Europe! No one loves Europe more than me!”
And now we have Europe pointing their nuclear weapons at us and there a distinct possibility that we’re looking at the end of life on Earth.
There’s no way to prove that the President has an intent to murder everyone in Europe, even if it risks everyone in our country and on Earth. There’s no motive. He denies it all. All of his personally selected cabinet members contend that he is sane and loves Europe.
Do we just die? We can’t vote that this is stupid? Is the Second Amendment - armed rebellion - the only way out because what is plainly obvious to all is still just such an enigma in origin (plus the President can afford the very best legal defense) that you could never prove beyond a shadow of a doubt\* the case?
I’m going to stop there but, I will note, this is probably 1/5th of the severe and unworkable issues with requiring a criminal standard for a job review, when talking about a position which is not actually that hard to refill.
- Of course, a “reasonable doubt” is a much different standard. It is the real one and it is far lower a standard than people like to naval gaze their way into. But it is where we would expect a jury to start weighing things because the President would, again, have the best legal defense and that’s how a good defender clears his client: He creates an unreasonable standard of proof.
It is unreasonable to require more than a 1 in 1000000 chance that the President is innocent before being able to proclaim him (or any other person) guilty. The average person only knows a few hundred people. If there’s a 999 in 1000 chance that you are the culprit, it is reasonable to send you to jail.
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### Author:  [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)
#### Post date: [November 9, 2019, 6:43am UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/75 "2019-11-09T06:43:02Z")
> [@Czarcasm](#):
>
> Who the hell said this was being done because of “ill-advised tweets”?
Locrian.
“Is the president an idiot? Yes. Evidence? Pick any 10 tweets. There’s your standard of proof in a Senate Impeachment trial.”
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [November 9, 2019, 6:51am UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/76 "2019-11-09T06:51:57Z")
> [@eschrodinger](#):
>
> Sorry in advance for the long post. There are multiple inaccuracies on multiple sides here.
>
> This is not a standard of proof, it is a statement of what must be proved – the elements of the charge.
Your mistake here is thinking anything needs to be proved. This is not a court. This is a political process.
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [November 9, 2019, 12:06pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/77 "2019-11-09T12:06:26Z")
> [@D\_Anconia](#):
>
> Locrian.
>
> “Is the president an idiot? Yes. Evidence? Pick any 10 tweets. There’s your standard of proof in a Senate Impeachment trial.”
Where did he say he was being impeached for tweets? Not there.
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### Author:  [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)
#### Post date: [November 9, 2019, 4:16pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/78 "2019-11-09T16:16:59Z")
> [@D\_Anconia](#):
>
> Locrian.
>
> “Is the president an idiot? Yes. Evidence? Pick any 10 tweets. There’s your standard of proof in a Senate Impeachment trial.”
He didn’t say that the tweets was all we have-he said that the tweets should have been enough.
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### Author:  [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)
#### Post date: [November 9, 2019, 6:46pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/79 "2019-11-09T18:46:14Z")
> [@Whack-a-Mole](#):
>
> Your mistake here is thinking anything needs to be proved. This is not a court. This is a political process.
It is a hybrid process. The Senate has debated the standard of proof in the past, so it has at least been relevant enough to discuss.
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### Author:  [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)
#### Post date: [November 9, 2019, 11:58pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/80 "2019-11-09T23:58:11Z")
> [@eschrodinger](#):
>
> It is a hybrid process. The Senate has debated the standard of proof in the past, so it has at least been relevant enough to discuss.
I’m not even sure why we’re arguing over a standard of proof. Assuming an article of impeachment would cite the phone call as an abuse of office, there would be no need to argue about “proof.” Both sides would stipulate that the phone call took place. The question would be, do 67 Senators _believe that action to be an act that justifies removing the President from office_.
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