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.
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.
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.
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.
In Clinton’s case, there was a stained dress and a court transcript where Clinton perjured himself.
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.
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.
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.
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.
Yeah, this made me pause for a minute because I think I lost track of the topic at hand. Unfortunately I only find myself doubling down, all future presidents who have command over nuclear weapons won’t be unstable and I trust all future chains of command.
I don’t want to get too deep into that, in this thread (I’ll follow you to another thread about it if you want). But if the President is too “unstable” to carry out his nuclear responsibilities then we have a different process to remove him from office. Being too unstable is not itself, in my opinion, an impeachable offense.
Yes, sorry, you are right. So if an unelected President is the target of an impeachment, I concede that there isn’t really a reason to use such a high standard of proof. Vice presidents are also elected so I suppose I have to extend the same standard to a Vice President/Vice-President-turned-Acting-President.
Perhaps I should be looking some of this history up, I mean, I know about the cold war but I’m sure there are plenty of things I don’t know. I’m not sure how I feel about the President having unilateral authority to order a preemptive nuclear strike against a nation we are not formally at war with. But I really don’t want to make this thread about nuclear policy.
Perhaps that’s the way things are, but in my opinion politicians should be willing to commit political suicide to defend their principles, and resign/lose reelection if it is clear that the constituency disagrees and can’t be pursuaded. You know, in a perfect world.
If we’re going to foray into the “real” world where politicians all act according to how they will be re-elected, there’s no point in having Senators debate each other at all and no difference between a Senator and a Representative. Compromise and progress on the Hill are made literally impossible because the people’s representatives are only there in the capacity of messengers.
That would be difficult. I would need corroberating testimony or evidence. One person’s word against another’s is just not enough. A pattern of specific accusations of abusive behavior might be enough, if the alternative and exculpatory conclusion that all of the accusers are mistaken/lying is so improbable as to be unsound, illogical, beyond reason.
Being a loose cannon and warmonger is not a mental disability.
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?
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.
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?
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.
That definition of reasonable doubt looks like it may be cobbled together from multiple sources, and it is deeply flawed. It goes astray in one of the ways that often occurs, and which showed up in Max’s posts in the other thread. The standard of proof can also, and more accurately be called, the standard of persuasion. It is a measure of how convinced the factfinder has to be that the defendant committed the charged act. It is not about a quantum of evidence, or whether other reasonable explanations exist.
For example, tere could be two equally reasonable stories of what happened, one presented by one side, one presented by the other. A jury can still convict based on that evidence. If the jurors are convinced that one of the stories is what actually happened, and that, though a reasonable explanation, they do not have a reasonable doubt that the exculpatory explanation is not what actually happened. An easy example of this would be a trial where you have a victim saying "the defendant robbed me on the street. I know him, and recognized him right away. That’s him. (Points out defendant.) The defendant calls a single witness, a friend of his, who testifies that the defendant was with him that whole day, and they never went near the scene of the crime. He says the victim does know defendant, and has never liked him, and is out to get him. A jury can believe the victim and disbelieve the defendant’s witness. As long as they don’t have significant doubts about that, they can convict.
The same is true even if the defendant calls 5 witnesses. It is not about quantity of evidence. It’s about how strongly convinced one is about what happened.
I strongly disagree with this. I don’t think that any time the House is held by the opposite party from the president, they should be trying to impeach him or her, for doing what in their opinion is a bad job. It does have the effect of overturning an election, and it should be taken very seriously, and used very rarely. If it becomes commonplace, it will break our system.
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?
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.
In general response to the thread, I have read a Congressional Research Service report that says the Senate has previously decided that each senator will apply the standard of persuasion that his or her conscience dictates. I have to say that I think that is very strange. But, perhaps not too strange for what is a hybrid legal and political process. It seems to me that there are very good arguments for the preponderance standard and for the heightened standard of clear and convincing, but I don’t think I’ve seen a single good argument for BRD applying.
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. 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.
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.
Another misconception here. The articles of impeachment don’t expose him to criminal liability. His actions expose him to criminal liability, and that fact should have nothing to do with the standard of proof at an impeachment trial. That’s like arguing that, if OJ Simpson had been sued in a civil trial before his criminal trial, they should have to use the beyond reasonable doubt standard because if they find that he did it, that would also mean he committed a crime. Different proceedings about the same acts can have different elements, and have different standards of proof. They also have very different consequences.
