# 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:** 6
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 20, 2019, 8:51pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/101 "2019-11-20T20:51:10Z")
> [@RitterSport](#):
>
> OP, I assume we’re talking about impeachment in general, not this specific case, right?
>
> Because there’s no doubt that this president did the things he’s accused of. The question is whether those actions were impeachable, right? How do you ascribe a standard of proof to whether something is impeachable? It seems like a category error.
It could be either general or specific, I don’t mind either.
But in this case I might disagree with you on whether the president did the things he’s accused of, those accusations being bribery/abuse of power. As I just mentioned in [POST=21984395]post #100[/POST], and as **eschrodinger** explained in posts [POST=21964661]#82[/POST] and [POST=21965876]#87[/POST], there are elements to such charges that may be disputed such as intent or authority.
~Max
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 20, 2019, 8:55pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/102 "2019-11-20T20:55:45Z")
> [@RitterSport](#):
>
> Right, but in this case, the president definitely did the things he’s accused of. The question is whether those are impeachable things, and I’m not sure how you have a beyond-a-reasonable-doubt standard for whether something is impeachable.
>
> If you’re trying to keep this thread general, I apologize for trying to get this point addressed.
I apologize for the delay. I just addressed this in the previous [POST=21984418]post #101[/POST].
> [@RitterSport](#):
>
> In the general case, I’d love to have you on my jury. Officer: “He was speeding. Here’s my radar evidence.” Me: “No I wasn’t. I was looking at my speedometer regularly and had my cruise control set.” **Max S.** : “Not guilty.”
I don’t think that’s an accurate depiction of me. If there was radar evidence that could definitely bring me to the officer’s side. If there was no evidence at all - just the officer’s word versus yours - then I would be hard pressed to vote guilty. It could still happen if your testimony sucks though.
~Max
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 20, 2019, 9:02pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/103 "2019-11-20T21:02:01Z")
> [@RioRico](#):
>
> The standard SHOULD be a showing of high crimes etc. The standard really IS whatever pressure any individual senator is subjected to. But I object to the OP premise. Since the Senate sessions are completely political, criminal-trial procedures are irrelevant. Has the Senate announced its trial rules yet? Maybe I missed that.
I don’t believe the Senate has announced trial rules yet. I doubt they will do so before articles of impeachment are approved by the House.
Regarding your objection to my original post, I think I anticipated this is/ought objection:
> [@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?
I’m interested in debating the ‘how _ought_ the Senate…’
~Max
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### Author:  [@RioRico](https://boards.straightdope.com/u/RioRico)
#### Post date: [November 21, 2019, 4:55am UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/104 "2019-11-21T04:55:17Z")
> [@Max\_S](#):
>
> I’m interested in debating the ‘how _ought_ the Senate…’
“Ought” is easy. I “ought” to take better care of myself. PG&E “ought” not cut off power again. A Senate trial “ought” to be concerned with facts. Santa Claus “ought” to bring me a pony. Shall we debate what “ought” to happen in all cases?
The realities: I’ve been sloppy. PG&E has been negligent. The Senate is political. And Santa brought me a Cherokee language course that I can’t really use. 😕
Okay, fantasy time. The filed articles of impeachment include low crimes such as obstruction (of which Tramp has bragged) and witness tampering; conspiracy to violate election laws (which he’s admitted); bribery and emoluments; destruction of official records; perjury; mopery and dopery, etc. Major high crimes include abuse of power, and revealing security secrets to US enemies, which heads into the realm of treason.
Now the fantasy part. Prosecutors detail the facts of the above. Defenders claim a POTUS is above the law. Senators consider the case: Are those “facts” true? Ream after ream of docs bolster the prosecution. Yes, true, so GUILTY GUILTY GUILTY.
I’m not holding my breath on the last. GOP Senators still face political suicide by bucking Tramp. And Santa still owes me a pony, or a llama at least.
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### Author:  [@simster](https://boards.straightdope.com/u/simster)
#### Post date: [November 21, 2019, 4:59am UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/105 "2019-11-21T04:59:30Z")
> [@RioRico](#):
>
> “Ought” is easy. I “ought” to take better care of myself. PG&E “ought” not cut off power again. A Senate trial “ought” to be concerned with facts. Santa Claus “ought” to bring me a pony. Shall we debate what “ought” to happen in all cases?
>
> The realities: I’ve been sloppy. PG&E has been negligent. The Senate is political. And Santa brought me a Cherokee language course that I can’t really use. 😕
>
> Okay, fantasy time. The filed articles of impeachment include low crimes such as obstruction (of which Tramp has bragged) and witness tampering; conspiracy to violate election laws (which he’s admitted); bribery and emoluments; destruction of official records; perjury; mopery and dopery, etc. Major high crimes include abuse of power, and revealing security secrets to US enemies, which heads into the realm of treason.
>
> Now the fantasy part. Prosecutors detail the facts of the above. Defenders claim a POTUS is above the law. Senators consider the case: Are those “facts” true? Ream after ream of docs bolster the prosecution. Yes, true, so GUILTY GUILTY GUILTY.
>
> I’m not holding my breath on the last. GOP Senators still face political suicide by bucking Tramp. And Santa still owes me a pony, or a llama at least.
wait - wait - — mopery _ **AND** _ dopery ??? Holy shit - the duo!
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 21, 2019, 4:15pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/106 "2019-11-21T16:15:58Z")
> [@RioRico](#):
>
> Okay, fantasy time. The filed articles of impeachment include low crimes such as obstruction (of which Tramp has bragged) and witness tampering; conspiracy to violate election laws (which he’s admitted); bribery and emoluments; destruction of official records; perjury; mopery and dopery, etc. Major high crimes include abuse of power, and revealing security secrets to US enemies, which heads into the realm of treason.
>
> Now the fantasy part. Prosecutors detail the facts of the above. Defenders claim a POTUS is above the law. Senators consider the case: Are those “facts” true? Ream after ream of docs bolster the prosecution. Yes, true, so GUILTY GUILTY GUILTY.
Pretend you are a Senator in fantasy-land where Senators have principles and put those above political pressure and being re-elected. What do you think _ought_ to be the standard of proof by which you determine whether or not something is a fact? Something like _mens rea_?
~Max
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [November 21, 2019, 4:25pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/107 "2019-11-21T16:25:30Z")
I don’t think a question of mens rea needs to be examined to the same degree in the question of impeachment as it does for a criminal trial. Whether we’re talking murder or manslaughter isn’t terribly relevant for whether a President killed someone illegally.
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### Author:  [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)
#### Post date: [November 21, 2019, 4:46pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/108 "2019-11-21T16:46:46Z")
In my view, there are separate questions about what mens rea might suffice, vs how convinced you have to be that the president had that mens rea.
So, one person might think that for impeachment, you would have to show knowing or intentional mental states corresponding to the president’s actions. And then there would be the question of how convinced a senator would need to be that one of those was actually the president’s mental state when he took the actions.
Another person might say, it’s also sufficiently bad if this whole scheme happened on the president’s watch and he was unaware, because he should have known what was going on. So the standard could be knew or should have known (negligence), and then a separate question about how convinced a senator would need to be of the president’s at least negligent mental state.
(Sorry – I haven’t followed the homicide hypothetical, so this is framed more in relation to current circumstances.)
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 21, 2019, 5:20pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/109 "2019-11-21T17:20:07Z")
> [@Ravenman](#):
>
> I don’t think a question of mens rea needs to be examined to the same degree in the question of impeachment as it does for a criminal trial. Whether we’re talking murder or manslaughter isn’t terribly relevant for whether a President killed someone illegally.
As I was saying in response to **Sage Rat** , intent is a critical element when determining whether the charge is bribery or malfeasance. And while official authority is no defense to a charge of bribery, it is a defense to malfeasance. If a President is charged with bribery but you can’t prove intent, then I vote against the bribery charge. If a President is then charged with the lesser offense of malfeasance, but has the authority to do what he has done, then I vote against that charge, too. So yes, it’s relevant IMO.
~Max
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [November 21, 2019, 5:37pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/110 "2019-11-21T17:37:07Z")
> [@Max\_S](#):
>
> As I was saying in response to **Sage Rat** , intent is a critical element when determining whether the charge is bribery or malfeasance. And while official authority is no defense to a charge of bribery, it is a defense to malfeasance. If a President is charged with bribery but you can’t prove intent, then I vote against the bribery charge. If a President is then charged with the lesser offense of malfeasance, but has the authority to do what he has done, then I vote against that charge, too. So yes, it’s relevant IMO.
I disagree. One aspect of the system of criminal justice is that it is preferable for the guilty to go free rather than the innocent be punished, because the principle of liberty is at stake.
Liberty is not at stake in an impeachment proceeding. The issue boils down to the integrity of government, and whether or not continuation of an official in office brings that into question. We elect someone to take the President’s place in case of removal from office due to natural or legal reasons – and then have another nearly two dozen officials standing behind him to take his place just in case.
Presidents are replaceable, years lost to erroneous criminal convictions are not. That why they are different processes, carried out for different reasons, and shouldn’t be viewed as interchangeable.
To put it another way, its totally fine to lawyer someone out of a criminal conviction on a technicality. It isn’t fine to keep someone with an extreme amount of power bestowed upon them based on the same technicality. The essence of representative democracy is that our leaders are replaceable.
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### Author:  [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)
#### Post date: [November 21, 2019, 6:22pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/111 "2019-11-21T18:22:11Z")
> [@RioRico](#):
>
> “Ought” is easy. I “ought” to take better care of myself. PG&E “ought” not cut off power again. A Senate trial “ought” to be concerned with facts. Santa Claus “ought” to bring me a pony. Shall we debate what “ought” to happen in all cases?
>
> The realities: I’ve been sloppy. PG&E has been negligent. The Senate is political. And Santa brought me a Cherokee language course that I can’t really use. 😕
Sure you can. Learn how to say “Can I have that pony?” in Cherokee. Then all you have to do is find a Cherokee with a pony and ask him.
Of course, he might say “No.” You maybe ought to find a _few_ Cherokees with ponies, just in case. Also, learn the Cherokee words for “No,” “Yes,” “Fuck off,” “Sure thing buddy, anything for you!” and “Say WHAT?”
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 21, 2019, 6:49pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/112 "2019-11-21T18:49:42Z")
> [@Ravenman](#):
>
> I disagree. One aspect of the system of criminal justice is that it is preferable for the guilty to go free rather than the innocent be punished, because the principle of liberty is at stake.
>
> Liberty is not at stake in an impeachment proceeding.
This goes with what we were discussing a couple weeks ago, in that removing an elected President is disenfranchising the states. So if we are to weigh potential outcomes here, there are four:
[ul][li]Impeach and convict a guilty president, and justly disenfranchise the states[/li][li]Impeach and convict an innocent president, and unjustly disenfranchise the states[/li][li]Acquit or fail to press charges against a guilty president, abandoning justice[/li][li]Acquit or fail to press charges against an innocent president, which is just[/ul][/li]If we strike out the positive outcomes to look at the worst case scenarios, one the one hand we disenfranchise the states, and on the other we let a criminal run the government. A standard of proof has to strike some sort of balance between these two undesirable ends of a spectrum, and the question is how much we prefer one outcome over the other.
It is my opinion that I would rather have a criminal run the government than (unjustly) disenfranchise the states, most if not all of the time. Just because the President is criminal doesn’t mean our nation ceases to function. There are checks and balances, which I trust, including impeachment for more overt acts or patterns that may arise in the future. But disenfranchising the states is like a penultimate evil; second only to disenfranchisement of the people or perhaps mass murders.
Consider this: a conviction for treason requires a very, very high bar. The framers could have written in an exception, to say that treason has a lower bar for impeachment. They didn’t do that. You need two witnesses to an overt act of treason, there can’t be any doubt as to the treasonous nature of the act. Something like assembling a force of men with the intention of overthrowing the government, or actually joining the ranks of an enemy on an actual battlefield, or knowingly providing material aid such as a car and travel documents to an known spy. If a President does all of that, but you don’t find two witnesses, you can’t impeach him for treason. If there is a credible accusation that the President literally joined the Nazis in the fields of Europe, but you don’t find two witnesses, you can’t impeach him for treason. Let that sink in. That’s the burden of proof.
~Max
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [November 21, 2019, 7:21pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/113 "2019-11-21T19:21:57Z")
> [@Max\_S](#):
>
> This goes with what we were discussing a couple weeks ago, in that removing an elected President is disenfranchising the states.
States have no absolute claim to a President when a lawful process is carried out. The states ought to be ashamed for electing a criminal.
> [@](#):
>
> Consider this: a conviction for treason requires a very, very high bar. The framers could have written in an exception, to say that treason has a lower bar for impeachment. They didn’t do that. You need two witnesses to an overt act of treason, there can’t be any doubt as to the treasonous nature of the act. Something like assembling a force of men with the intention of overthrowing the government, or actually joining the ranks of an enemy on an actual battlefield, or knowingly providing material aid such as a car and travel documents to an known spy. If a President does all of that, but you don’t find two witnesses, you can’t impeach him for treason.
That’s ridiculous. The Constitution isn’t a suicide pact. You need two witnesses to criminally convict someone of treason. The idea of keeping a threat to the nation and its people in office because of a technicality of only having one witness to the President’s misdeeds is literally insane. I mean this respectfully, but I think you’ve lost touch with the real world here.
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [November 21, 2019, 7:44pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/114 "2019-11-21T19:44:27Z")
> [@Ravenman](#):
>
> States have no absolute claim to a President when a lawful process is carried out. The states ought to be ashamed for electing a criminal.
Yes, I agree with you. But that second sentence is assuming the conclusion isn’t it?
> [@Ravenman](#):
>
> That’s ridiculous. The Constitution isn’t a suicide pact. You need two witnesses to criminally convict someone of treason. The idea of keeping a threat to the nation and its people in office because of a technicality of only having one witness to the President’s misdeeds is literally insane. I mean this respectfully, but I think you’ve lost touch with the real world here.
I didn’t say the Constitution is a suicide pact and I don’t believe it is or can be. But I still apply the treason clause to cases of impeachment. You see a contradiction here but I don’t. If you want to keep discussing this we can, or we can agree to disagree. Your call.
~Max
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [November 21, 2019, 7:53pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/115 "2019-11-21T19:53:03Z")
> [@Max\_S](#):
>
> But I still apply the treason clause to cases of impeachment. You see a contradiction here but I don’t.
Yes, you may wish to apply the treason clause in ways that the clause does not direct – but let’s be clear here on what it actually says: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
The Senate trial of impeachment charges is not a court and this clause clearly relates to a criminal conviction. Your argument here is sort of like pulling an Arlen Specter voting “not proven” in the Clinton trial: you can have your own unique legal theories, but that’s not the way things actually work.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [November 21, 2019, 8:38pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/116 "2019-11-21T20:38:09Z")
> [@Ravenman](#):
>
> You would rather a likely criminal keep public office than a likely criminal be removed from office. That’s literally what you’re arguing.
This is not a lifetime appointment.
He is not a judge.
> [@](#):
>
> The system includes a mechanism removal from office.
And that is largely a political decision
> [@](#):
>
> I think that’s putting politicians above the integrity of government.
It puts democracy ahead of what is ultimately a political question.
Next time try winning an election.
> [@](#):
>
> Oh boy, I can’t wait to hear from the Trump voter how special rules apply only to the President at this particular moment.
Max S. is a Trump voter?
Or do you just accuse people of that if they disagree with you?
> [@](#):
>
> 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.
Or it was in defense of democracy.
> [@](#):
>
> You might as well argue that removal from office should be a unanimous decision, because criminal juries.
This sort of behavior and hyperbole is how Trump won in 2016.
People like you did more to get Trump elected than all the moderate liberals combined.
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [November 21, 2019, 8:40pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/117 "2019-11-21T20:40:22Z")
yawn
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [November 21, 2019, 8:43pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/118 "2019-11-21T20:43:37Z")
> [@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:
>
> 1. Donald Trump openly, and repeatedly, did #1.
>
> Therefore,
>
> 1. He deserves a guilty vote in the Senate
“to steal my vote is impeachable”
This is the important part. We bribe and extort governments all the time.
Trump is trying to fool me into thinking that Biden is corrupt by coercing an foreign nation to launch an investigation that they knew would not go anywhere and would exonerate the Bidens sometime after the November election.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [November 21, 2019, 9:07pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/119 "2019-11-21T21:07:05Z")
> [@QuickSilver](#):
>
> And I’ll do it again so they can jail the motherfucker. 😉
I don’t think you understand how impeachments work.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [November 21, 2019, 9:09pm UTC](https://boards.straightdope.com/t/what-should-be-the-standard-of-proof-in-a-senate-impeachment-trial/843141/120 "2019-11-21T21:09:50Z")
> [@SamuelA](#):
>
> 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.
Nixon also did tons of other shady shit:
> **[Nixon Prolonged Vietnam War for Political Gain—And Johnson Knew About It,...](https://www.smithsonianmag.com/smart-news/nixon-prolonged-vietnam-war-for-political-gainand-johnson-knew-about-it-newly-unclassified-tapes-suggest-3595441/)**
>
> Nixon ran on a platform that opposed the Vietnam war, but to win the election, he needed the war to continue
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