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Well, that’s the thing. I think impeachment cases can be criminal, definitely when the charge is of treason. To support that I put weight on the section immediately preceding the Treason clause, which says “The Trial of all Crimes, except in Cases of Impeachment, […]” The point being, this clause implies that cases of impeachment can be trials of crimes.
I challenge you to find any constitutional scholar who supports the notion that “Treason” in article II section 4 refers to anything but the exact same offense defined in article III. You ought to quote the whole Treason clause,
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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.”
So by my interpretation, an impeachment trial for treason is a criminal trial (like treason cases anywhere else) with a very high standard, but with Senators instead of a jury. There are no major paradoxes I have to solve with regards to the Constitution.
By your interpretation, Treason carries a high standard most of the time, but not during cases of impeachment. You have to resolve the unusual wording of Article III section 2, and also support the notion that “no Person shall be convicted of Treason” doesn’t apply to “convictions” described in article I for “Treason” as mentioned in article II.
~Max
No, it isn’t a criminal trial, because no criminal jeopardy is attached. Zero. That’s what the Constitution says.
I’m trying to understand you. The Constitution doesn’t mention civil versus criminal contexts. It mentions crimes and trials for crimes. The Sixth Amendment is the first to mention suits at common law. But impeachment of a President only results in removal from office for “Treason, Bribery, or other high Crimes and Misdemeanors”. I’ll accept that not all cases of impeachment are for crimes, but surely some are.
It explicitly says, Art. 3 sec. 2, that the accused enjoys the right to a jury for “The Trial of all Crimes, except in Cases of Impeachment” (emphasis added). The implication is that at least some of the time, a Senate trial to judge an impeachment from the House is a trial of a crime.
But that doesn’t even matter, because even if the Treason clause only refers to criminal convictions you would need to argue for some form of equivocation. The same exact phrase is used in Article I as in Article III. “[…] And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Is that “[…] And no Person shall be convicted” referring to something entirely different than the “No Person shall be convicted” in the Treason clause?
~Max
What percentage of the jury has to vote guilty in a criminal trial?
What percentage of the Senate has to vote to remove the President?
The standard of proof is not the key criteria and, on average, this whole discussion is unhealthy.
Let me tell you a story.
Once upon a time, there was a girl who was unhappy in her marriage. Not because she didn’t love her husband or her life or anything, but simply because she was self-destructive and feel shameful for being happy in life. She felt like she wasn’t worthy of her husband and that, surely, he would be happy with someone else.
But, the one good thing about all of this, is that she didn’t realize that she was trying to leave her husband and looking for excuses to do so - and she was just selfish enough to and conniving enough to always, ultimately, go back to the good life and feel bad about not earning it and all of that.
Still, the single word to her, “You’re not happy in your marriage and you’re trying to leave.” That would have caused her to have left him.
So long as she was misbehaving on an impulse that she couldn’t explain, she would simply bounce around in place. But once you give explanation, once you put the thought out there, a busy mind will chew on it and consider it and examine it left and right, up and down. Even if it was just a silly idea, divorced from reality, just having the idea out there can cause harm.
It’s like Johnny Cochrane telling the OJ Simpson jury that, “If the home don’t fit, you must acquit.” It may be nonsense but, it rhymes, it’s memorable, you think about it. You are liable to forget that it’s stupid and meritless because, well, you want everyone to be innocent or simply, you can’t stop yourself from questioning everything and convincing yourself that there’s not really such a thing as “certainty”.
The girl, to start with, her whole problem was fundamentally a matter of overthinking and getting lost into eddies and oubliettes. That’s not healthy and it’s not productive. It keeps people to doubting every choice they make and, eventually, work against themselves out of fear that they had done wrong before.
Overall, let’s make this real simple: On the basis of what the founders intended, Trump should be impeached and removed. That is unassailably true. No, it’s unassailably true, full stop. There are reasons for that and those reasons are good.
If the system isn’t able to accomplish good then, yes, the system needs to be reviewed. But if your answer is to make it even harder to accomplish good and, instead, makes it even easier to be and act bad - when that goes against the express intentions of the founders and against the actual benefit of society - then you are being just completely stupid and allowing overthinking to destroy you and everything practical.
All systems and laws exist to make the world a better place. They do not exist to achieve intellectual rigor. If intellectual rigor and perfection makes everyone miserable and allows us to be having our pockets picked and bones broken and every corner then that system is not actually intelligent nor rigorous. It’s ignoring reality. There are no spherical cows in a vacuum and all math you do against them may or may not serve as a useful model for approximating reality. If it works and makes the world a better place then, huzzah, your spherical cows are a success. If all the real cows die and start oozing a mauve plague then I don’t give a damn how perfect your math was. The model wasn’t a useful tool for the real world - give it up and move on.
You’ve made a thoughtful post and I appreciate it. But fundamentally, and depending on the circumstances, I may disagree with you that leaving her husband and giving up the good life is a bad thing. Both individually and for society.
This goes beyond the scope of this thread in my opinion, where I had been assuming that the Constitution is fixed. I might have totally different opinions if changes to the Constitution are in consideration.
~Max
Why don’t you just provide cites from legal scholars that impeachment is a criminal trial, and the same procedures and principals apply.
Off the top of my head, Justice Benjamin Curtis held the opinion that “high Crimes and Misdemeanors” literally means crimes and misdemeanors as enshrined in existing law. But by all accounts, history (the Senate) has not favored that interpretation.
I will do a deep dive and pull up some cites. I expect you to do the same. But neither of our arguments is made invalid simply because they appear unique.
~Max
Quite a few experts there who do not support your position.
Impeachment isn’t about law, so there is no standard of proof. FFS, let’s please stop trying to debate what’s impeachment bait, and what’s not, as if we’re taking a con-law class. Hell, in another few years we won’t even have a constitution anymore.
Nope, no standards. And the US has violated its constitution since about day one (cf Indian treaties) and as Dubya said, it’s just a rag. Ignore it whenever convenient. Judges, legislators, executives, and their minions and agents, do whatever they can get away with. In the upcoming trial we’ll see Senators ponder whether they can get away with whatever vote they cast. Their constituents are the ultimate jurors.
So we should just give up on the whole rule of law business?
Jurors in criminal trials sometimes don’t follow directions, so should we just stop instructing them on the law and burdens of proof too, and just say, convict if you like, or don’t, whatever.
I think it’s pretty nonsensical that the Senate is OK with each senator coming up with their own standard of persuasion. Even when I want the president to be impeached, part of the reason why I want this president impeached is because of the enormous, lasting, damage to our entire system of government. I don’t think it actually solves that problem to embrace the idea that impeachment is to be done in a standardless way, by any group that wants to and has (some of) the votes.
The problem here is trying to transpose criminal procedure into a political procedure. We should take each procedure as it is, not craft one to be like the other.
The one part where I think that the Senate’s consideration should be more carefully scrutinized is whether the charges actually conform to the idea of “high crimes and misdemeanors.” Presidents should not be removed for policy disagreements, but where actual malfeasance is s shown, the benefit of the doubt should go to the integrity of the Government.
I’m not advocating for criminal procedures. But I am advocating for some familiar legal procedures. I think I’d be fine with the civil standard of proof, e.g. It is called a trial in the Senate, and a judge presides over a presidential impeachment trial. If there’s a trial, you need a standard of persuasion. You need to know what the side with the burden of proof needs to prove, and how convinced the fact finding body needs to be.
What’s the standard of proof for voting on legislation?
The standard? Whatever a legislator can get away with that rewards, or at least doesn’t punish, their constituents i.e. major contributors.
The standard for legislation SHOULD be that it helps the nation. The standard for a removal trial SHOULD be that the perp has irredeemably disgraced their office and the nation with “high crimes” (abuse of power) and even blatant criminality.
As I said, constituents are the ultimate jurors. What does a senator fear more? Short term: supporters will turn against them in the next election cycle. Or longer term: an opposition president will pull the same shit against THEM as the current POTUS aims at those who don’t tongue his anus. I’ll go with #1. Short-term thinking always wins out.
The good of the nation? The will of the people? Ha. “We, the people” do not exist for conservatives. America is only owners and the owned. Who owns GOP senators?
I’m for a parliamentary system, like, say, what the U.S. imposed on Japan.
One of its many superior features, as compared with the presidential republic system we have, is that the chief executive is out when he or she no longer has the confidence of the legislature.
When Lord North lost the American Revolutionary War, he was removed on a vote of no confidence. Do you consider that a lawless action? I think it made a lot of sense.
A chief executive should not be deprived of freedom except by due process of law. But keeping a top job should not be a legal right.
I realize that getting from here to there is currently impractical.
A confession in open court can be substituted for the two witnesses. And refusal in open court to disavow the public proclamations he’s already made should serve in an impeachment trial.
:dubious:
ETA: N.B. the reference in the final panel of this wondermark comic is not intended to be read as an allusion to any Doper, in or out of this thread.
In this case, even if reasonable doubt was the standard, there is no way the Senate should not convict. There is no reasonable counterclaim to what Trump did. The only way to not see his statement as quid pro quo (and thus bribery) is to ignore what language means. The only way to argue that he should be able to do what he did is to say that democracy should not count. You can’t tell the government of a country to find some charge against your opponent to get aid and not be trying to overturn democracy.
That said, reasonable doubt is too high, as that standard only works with an established law under it. Reasonable doubt is about facts, not opinions–is there a reasonable doubt that this fact occurred. You can’t have a reasonable doubt about whether an opinion is correct.
Since impeachment can involve something other than a crime, there is not always such a law. And you can’t have different standards for crime vs. non-crime, as then you’ve just made it where the impeachment trial determines whether a crime occurred.
That’s the job of a criminal trial, and of a completely different branch of the government. You can’t have the impeachment trial step on the powers of the judiciary. It must be doing something else.
Oh, and the States are not being disenfranchised with an impeachment, as the Senate represents the states. In a impecahment removal, you have 2/3s of the Senate–2/3s of the States–agreeing.