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

Great Debates
81

Good point. When I have served on juries, the key question was whether we were certain that this defendant did an act that satisfied all elements of some crime.

In this type of case, it isn’t plausible to argue that someone else other than a President did a particular thing, nor are there elements of a crime to prove.

I guess the more important question is whether evidence should be excluded from the Senate trial because it was illegally collected. Pretty sure the answer to that is no, given Linda Tripp’s illegal tape recordings.

82

There could be fact questions about whether Trump had a corrupt purpose (as opposed to legitimately targeting corruption in Ukraine) and, for anyone who thinks the phone call alone is not enough evidence, there could be a question about whether Trump directed the communication from Sondland and others.

I acknowledge that, in the hybrid Senate proceeding, for at least some, but perhaps most or even all Senators, deciding on a standard of proof is academic – it would just be about deciding what standard they will say they are applying to reach their foregone conclusion.

83

Right, it’s what they’ll say afterward to justify their vote. If evidence like hidden financial records show this POTUS is owned by foreign enemies, how do they excuse voting “not guilty” ??

84

I haven’t read through the entire U.S. Code, but I’m pretty sure there’s no Federal law that specifically says the President can’t put the screws on a foreign government to dig up dirt that would embarrass the President’s potential opponent in an upcoming election.

And since there’s no specific law that covers what allegedly happened (unlike the evidence that specifically showed Nixon committed an obstruction of justice or that Clinton lied in a sworn deposition) then there’s no “standard of proof.” The question is, did the President do something sleazy and petty, or did he do something so sleazy and petty that he shouldn’t be President anymore.

85

That “dirt” is “something of value” and is thus illegal to solicit or accept from a foreign source.

86

The bribery statute, 18 USC 201:

Trump took official acts (holding up aid) pending Zelensky delivering something (promise of investigation) that was of personal and not official value to Trump (dirt on a political challenger).

87

So, this is a misunderstanding of “standard of proof.” There does not have to be any crime – the articles of impeachment will serve as the accusatory instrument – like an indictment would in a criminal case. So, let’s say an article of impeachment says that the president is accused of an abuse of office when he engaged in a plot to withhold aid to Ukraine in exchange for exclusively personal benefit. (Not sure how broadly or narrowly they might draft this. Maybe just abuse of the power of his office, and listing some examples.)

So taking my first example, at the trial, the Senate would need to decide if
Trump engaged in a plot to:

  1. withhold aid to Ukraine
  2. in exchange for personal benefit
    and, 3) that was an abuse of the power of his office.

Those would be the elements of the allegation.
The standard of proof (better understood if we call it by an alternate name, the standard of persuasion) is a statement of how convinced one must be in order to find that those things are true. So, civil trial standard – it’s more likely than not that each of those elements occurred or is true.
Intermediate standard – the evidence is clear and convincing, or it is highly likely that those things happened or are true.
Or the criminal standard of persuasion – the factfinder is convinced beyond a reasonable doubt that those things happened or are true.

WHAT has to be proved will be set out in the articles of impeachment, drafted in the House Judiciary Committee…
HOW CONVINCED each senator has to be that the articles have been proved is what the standard of proof is about.

88

I agree. Note also that this statute covers this scenario perfectly well. Many seem to not see it as bribery, because I guess they don’t expect it to cover solicitation of a bribe, and are instead calling it extortion. It does not seem to be extortion under federal law, because that would require threats of harm. Bribery covers it just fine. Also, demanding or seeking something for an official act is the crime – the phone call is the crime, regardless of whether or not either side followed through – which they both did, but after things started to blow up, so there are some weird arguments about it.

89

Does anyone here have an idea of what obstruction charges might look like?

90

I’d be okay with preponderance of evidence.

91

I think that the most reasonable standard would depend on the concern. A one-size fits all solution doesn’t make sense. We don’t, for example, maintain the same standard when someone jaywalks versus when they murder someone since that wouldn’t make sense.

There are at least these buckets of concerns that should be considered separately and given different standards of treatment (beyond just the question of the standard of proof).

  1. Failure to fulfill the oath of office
  2. Corruption
  3. National security risk
  4. Crimes
  5. Nigh-criminality

The Oath
I would put this one down as “Beyond a reasonable doubt”. For failure to fulfill the oath - e.g., dereliction of duty, etc. - that shouldn’t just be a subjective matter. There should be a damn solid case to the matter.

The current 2/3rds supermajority seems fine.

The principal issue, at the moment, is simply that no one is bringing this charge to bear - neither friend nor foe.

The problem is less with the standard of proof and more with the quality of our representatives. We need to reform our election processes to get a higher level of human being leading our country.

Corruption
Is a crime if it’s actual corruption.

See crimes.

National security risk
I somewhat doubt that the Founders really considered this option. They probably never envisioned that someone like Trump could exist and be elected President.

And, basically, what this is is the concern that the President may have done something compromising during his time in office or previous to it, which could be in the hands of our enemies.

(Note: For the purposes of the Constitution, “our enemies”, is in essence every single country that is not the USA. Allied or not, there is nothing to prevent the UK from deciding that they want a favorable trade deal and are willing to use their leverage over the President to get it.)

For this, I would say that the standard of evidence should be, “Credible concern”.

Now, I grant that this is a problematic standard.

On the one hand, you need a standard that low in the face of the problem that fundamentally a nation-state has the powers to ensure that no evidence of the crime can ever come to a level of reliable proof.

But, you need that low of a standard or you are in fact risking national security. That is, after all, the bucket that we’re talking about here.

The risk of the low standard, however, is that anyone who does not like the President simply needs to manufacture something that looks like a credible bit of evidence of ill behavior.

To counter that, however, one should note:

  1. We would still maintain a super-majority requirement. You have to convince a whole lot of people that this is a credible risk. That’s really not so simple. Specifically because…
  2. There’s a relatively good likelihood that the President will be able to establish an alibi or otherwise disprove the accusation.
  3. Fundamentally, a big component of credibility will be the question of whether it’s credible that the President is “the sort of person to do that sort of thing”?

If you ask whether Trump would have turned away a girl like Traci Lords if she appeared at his hotel door, when she was underage but looked like this, the the answer is a clear “no”. And, if you ask whether he’s gone to the sort of places (e.g. Russia) where they are both liable to send a girl like that to his hotel door and have film cameras in the room, the answer is “yes”. And if you ask if he’s the sort of person who, knowing that there were likely to be cameras in his room covertly filming him, would be smart enough to say “no” when a girl who looked a bit on the young side came to his room, then well, we know that he’s the sort of person dumb enough to commit a crime on a phone knowing that there are 12+ different people listening to him.

That’s not proof that that ever happened, but it’s a credible concern because it’s not just that there’s a photo floating around of the President kissing a Traci Lords-looking girl on the cheek and some rumors about it; there’s actual reason to be concerned, based on things that you can demonstrate about the President’s known and provable behavior and who he associates with.

You might think of credible concern in much the way that criminality is considered. If you accidentally run someone over in your car, for example, that is not murder because there was no criminal intent (mens rea). Having a body wrapped around the wheels of a car - despite being real good and undeniable evidence that someone was killed - still doesn’t equate to murder, unless you can demonstrate criminal intent. And if the police do believe that you ran the person over purposefully, with an intent to murder, then they need to prove beyond a reasonable doubt that you had such an intent.

Similarly, with “credible concern”, we’re only lowering the standard on the “body wrapped around the wheels” part of the matter. You still have to demonstrate that the other aspect of the matter - that this is the sort of person to do that thing - is part of the equation and that portion does still need to be proved beyond a reasonable doubt.

Additionally or alternately…

Of course, that sort points to the fundamental issue which is that a person for whom a credible concern could exist, simply, should never become President.

Ultimately, there isn’t an actual shortage of people who could or should be President. For every random set of 1,000 people, there are probably a few people who could do the job at a level that everyone would be quite happy with. And so, from that perspective, trashing the President easily wouldn’t be a big issue.

But, functionally, it is disruptive to the smooth flow of governance. Whether or not there are lots of good president-in-potentias out there, there are a lot of different ways to be good. A tank and a race car are both highly engineered devices that are very good for their purpose - but with much different goals. You don’t want the President getting swapped out every few weeks - or even really, ever.

Putting complete divestiture of all business ties as a requirement for being able to accept your win of the Presidency into the Constitution would be one thing that would help to mitigate the concerns. Financial complications are the most easy way for problems to arise.

But, as I’ve proposed before, boning up the electoral college and giving them the ability and the mandate to perform a background check on the person - up to and including access to FBI, IRS, etc. records - seems like a thing that could and should be done. Obviously, the college would need to be put under an oath to maintain silence, with civil penalties. But, given that the candidates would have to accept being examined if they wanted to move into consideration for the role, you would expect people like Trump to never apply for the job. There wouldn’t be much to keep secret.

Crimes
Fundamentally, some aspects of the job require that you ask people to do things that are generally viewed as bad.

Say what you will, but between being shot by a soldier or being shot by a crook, the general impact on my life is pretty much the same. We say that there’s a difference between war and murder, but there is an argument to be made that that’s just semantics.

And under that same heading you might have assassinations, kidnappings, using blackmail material against people, etc.

The President is the head of the military and, by that token, he is in essence a professional law-breaker with the right to do evil deeds in the trust that he will use that freedom to serve the greater good.

The government can do things like quarantine people, intern them (granted, that’s not got a lot of popular support), force people into hard labor, put people in jail, etc. Ignoring semantics, these could all be considered to be acts of kidnapping.

At some level, the President needs immunity just from the fact that his position is quasi-lawless or, at least, operates under a very different view of legalities from the average mortal.

And then you have concerns that the States don’t start inventing laws to charge the President with because they don’t like his policy, or whatever.

But, by the same token, it’s ludicrous to charge the President with a crime, hold an entire trial over the matter, and then declare him guilty…just to hand him over to a different court, to have the actual criminal trial because you weren’t actually holding a criminal trial. (And, as noted, you can’t have a criminal trial of the President unless you hold it up to the standards of a criminal court, across the board, including in jury selection.)

Personally, I’m fine with “beyond a reasonable doubt” for crimes but that the question being asked is not, “Did the President commit a crime?” It’s whether Congress trusts that this is indeed a real crime and that the authorities have a real and apolitical intention in their request to be allowed to charge the President.

Of course, that hinges on the “a request to charge the President, by the authorities” part.

At the moment, because of Presidential immunity, only the states might be able to charge the President. But that allows the President to run rampant over the Federal system.

(Note: Technically, it’s fairly conceivable that the Supreme Court would decide that the US Attorney General can charge the President with a crime, if ever there was one who decided to do so. But, from a practical standpoint, the current setup doesn’t really allow for it.)

Ultimately, the Attorney General needs to become a more non-partisan role and get some extra requirements for appointment, similar to the head of the FBI, head of the Fed, etc. For example, give them 10 year terms, require a higher Senate approval vote limit, etc.

There shouldn’t be a policy that the AG can’t prosecute the President. It should simply be accepted that anyone who could win the role can be trusted to be extremely judicious in what they decide to allow through and what they decide to turn away. And it should be explicitly made clear that the AG is entirely free to charge the President with crimes, while he serves. (But, as said, it will be up to Congress whether they believe that the AG had a real, apolitical intent in bringing it.)

It would, after all, be ludicrous to be in a state where the President of the US was accused by a criminal compatriot of committing genuine “go to jail” crimes, under oath, in a criminal court, and have that be ignored by the authorities.

Nigh-criminality
The President should not be evicted from office because of jaywalking.

On the other hand, if it is discovered that he was skimming some cash off the the top of his charity, that feels like the sort of thing where you can comfortably say that, that sort of person shouldn’t be President - regardless that Congress has decided for whatever reason to put such activity below the level of a crime.

See “Failure to fulfill the oath of office”.

92

Excellent post, Sage.

I would like to note that for a country which literally just had a revolution, they showed a remarkable lack of concern of anyone getting elected on a “Make America Britain Again!” campaign promise, and didn’t give much thought as to what should be the process to getting such a person out of office should he start selling State secrets to George III. In some ways, this is a remarkable oversight.

In the end, the Founders… being effectively 18th-Century British chaps… effectively determined that since only “gentlemen” would be elected, they would just “know” how to behave. At least that’s how it seems to me at times.

93

I suppose that “beyond a reasonable doubt” is a standard I could be persuaded to support; however, this comes with caveats:

[ol]
[li]The very concept of “reasonable doubt” is based on a non-negotiable condition that it is to be applied exclusively by REASONABLE people.[/li]
[li]It is an objective and non-debatable FACT that anyone who is okay with the America-hating fuckstick occupying the Presidency is NOT a reasonable person.[/li][/ol]

94

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.

95

That’s an interesting approach. How do you measure abstract concepts like “damage to the country”? For my reference, what would you say is about a tie between damage to the country from false conviction versus damage from not convicting when you should have?

And then relevant to the OP, do you take the side that weighs heavier if only by a hair? Or is there a threshold/bias to overcome?

~Max

96

Well, Sage Rat did a fabulous job in the impeachment thread of pointing out Mr. Trump’s character flaws based on previous and existing litigation. I see no reason to exclude those admissions of wrongdoing from “the record” in his impeachment case, and therefore I am quite willing to downgrade Mr. Trump’s word should he claim to do the “right thing”, contrary to evidence of the opposite. If it is Mr. Trump’s word versus a generic civil service officer, the officer prevails.

What I am saying though, in a general criminal context, is that I’m not willing to downgrade one person’s word for some reason that I can’t articulate. If the defendant’s testimony is unimpeachable and the plaintiff’s contradictory testimony is unimpeachable, and these testimonies constitute all of the evidence in the case, I will not take a side and therefore the burden of beyond a reasonable doubt has not been met. I am not ruling out character judgements, but there has to be some sort of relevant and articulable flaw or strength before I, the neutral juror, can put one person’s word over another.

If none of this is present in a criminal case, because there really isn’t anything to go on other than two contradictory but unimpeachable testimonies, then I am holding the prosecution to an impossible standard because in my opinion it is impossible to prove their case.

Actually, I do agree with you on that. And it is different from a criminal jury. But there still has to be some sort of basis for the discrimination, be it in the public record or in experience, and my personal standard is that the reason be relevant and articulable.

If the President told me to my face that he hates me, or if he sent out a tweet that mocks me, I would not use that against him in my judgement (not relevant). If I just dislike the President in general, or get a vibe that he’s lying and manipulative, I would not use that against him (not articulable).

I do consider documented admissions of wrongdoing to be a major detriment to the President’s credibility, be it in the Trump Foundation settlement last month or in his public response to the Access Hollywood tape. These are both articulable, although the Access Hollywood tape may or may not be relevant unless we are left relying on the President’s word alone (eg: ‘I had good reasons, trust me they are solid, but it’s classified and I can’t tell you’). So too are public statements he has made which demonstrably contradict reality, which can only be evidence of ineptitude or malice.

I do have those thoughts, however if I cannot articulate the reason, I would not use it in my capacity of juror. To use the language from the Eleventh Circuit, I would hesitate before betting the most important of my own affairs on just a general vibe. If it were beyond a reasonable doubt, I would be able to articulate the reason - for example, this witness is throwing away their career/life savings by testifying against their own company, this other witness has a strong record, this witness doesn’t even know the defendant and has nothing to gain, you know, that sort of stuff.

Yes, a standard that requires a demonstrated refutation of all possible explanations is too stringent. I admit that if I have not already.

Upon review I am guilty of equivocation (in post #22), but I’m currently interpreting the “logical” from kenobi65’s definition in post #6 as meaning “within reason” or “probable”. I’m not going to pin down an exact percentage because it is intentionally fuzzy, but something like aliens dressing up as Clinton and Dole, if possible according to some formal logic, is definitely not a “logical possibility”. In other words, beyond a reasonable doubt means that no reasonable exculpatory explanations remain. Where I criticized kenobi65’s Wikipedia cite as stepping around the issue, I should have also criticized the legal-dictionary.thefreedictionary.com definition.

~Max

97

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.

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.”

98

Well, only one of those trials is before an impartial jury. Either the Senate trial is of the “criminal” standard sans an impartial jury and the post-removal trial has an impartial jury of peers, or the the post-removal trial is in front of a judge only, thus conviction in the Senate removes a right, thus the criminal standard is applicable. I go with the first interpretation.

You could interpret the Sixth Amendment as replacing this second option with two trials but I think that is an unnecessary expansion of the Sixth Amendment, especially since it causes the man to undergo the same trial under the same conditions twice, as you imply.

Well, I disagree with the premise. The Miranda warning turns on the compulsory nature of police interrogation which simply isn’t present in a Senate trial. Things like due process already apply to impeachment.

I actually cannot fathom an acquittal on a technicality. The vote is guilty or not guilty and there is no bar to double jeopardy with impeachment.

Also I’m all for a law tolling the filing deadline during time that someone is President.

Actually, I believe impeachment is the wrong vehicle for that. Congress should defund or outlaw the President’s “aggressions”. Definitely not impeachment, because the flipside of this is the population and President wanting to go to war but Congress being the odd branch on the tree.

…I think that made sense. Maybe I should get some sleep before continuing this.

~Max

99

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.

100

I tend to think that the foreign emoluments clause and treason clause are adequate when it comes to concern that the President himself constitutes a risk to national security by being beholden to some foreign power. Your proposed standard of a credible concern appears too lax. I think it would result in the ouster of presidents because Congress thinks they are too friendly to some foreign power. Can you imagine Jefferson and France? FDR and Churchill?

Remember that most of the President’s powers flow from Congress - his ability to levy tariffs, set border policy, withhold funding, even to declare emergencies and send troops without a formal declaration of war or domestic hostilities all flow from laws of Congress. If you want to impeach him for exercising some inherent power like vetoing a treaty, but don’t have unimpeachable evidence of a bribe or other emolument, just on the credible concern that he might be compromised, but you don’t have evidence of it, I say too bad, build a better case or go home.

Regarding crimes I think we agree, it’s hard to tell. From what I read in this post that I quoted, if the President runs over a pedestrian but we can’t prove murderous intent you would use beyond a reasonable doubt and charge the President with manslaughter. So would I. If there is a defense that running over a pedestrian was a necessary consequence of the President executing the law, that is an affirmative defense and the burden is on the President to establish that set of facts. Compare with a police officer on trial for running over a pedestrian, who raises the defense that the pedestrian was a terrorist carrying semiautomatic rifles aimed at a nearby orphanage. Burden falls on the defense, but if true it may be exculpatory.

A “high crimes and misdemeanors” charge such as abuse of authority or bribery falls under the same standard. If you can’t prove corrupt intent it is no longer bribery. Like murder, bribery without corrupt intent can only be malfeasance. But if there was an official purpose, and official authority, it’s not even malfeasance, just lawful behavior with an unfortunate appearance of impropriety.

~Max