Differences in trials
In addition to differences in due process, there are other key variations in impeachment and criminal trials:
❚ Accusation: A president is not accused of a crime defined by statute as other defendants are. The Constitution describes an impeachable offense as “treason, bribery, or other high crimes and misdemeanors,” but that standard is broad by design.
❚ Burden of proof: In criminal trials, the standard for conviction is “beyond a reasonable doubt.” In an impeachment trial, there is no formal definition of what it takes to remove a president. ❚ Rules of evidence: The Senate determines how many witnesses, if any, will testify and what, if any, evidence is presented. In criminal trials, procedures are well-established.
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Comparing a president facing a Senate trial to a common criminal defendant is misleading on several fronts, experts say. There are key differences in their rights and the trials they face.
For one, President Donald Trump is not a defendant accused of a crime defined by statute, such as theft or murder.
“What is and is not considered an impeachable offense is not predetermined by law,” said Frank Bowman, a University of Missouri law professor. Although the Constitution describes an impeachable offense as “treason, bribery, or other high crimes and misdemeanors,” that standard is broad by design.
This means jurors – senators with their own political alliances – decide what the facts are and whether they matter, Bowman said.
No other jury in the U.S. has that much power. Jurors in criminal trials simply are asked to weigh the evidence and decide whether it proves a crime.
Perhaps one of the most basic differences between an impeachment trial and a criminal trial is the punishment if someone is convicted. Presidents lose their office, which has never happened and is unlikely to happen to Trump. Criminal defendants can lose their freedom, and that happens regularly.
That brings us to due process. The Fifth Amendment says no one can be deprived of “life, liberty or property” without due process of law. A president facing an impeachment trial is not at risk of losing life, liberty or property.
No impartiality
Senators in an impeachment trial are required to take an oath promising to be impartial. But Senate Majority Leader Mitch McConnell, R-Ky., has said he is “not impartial about this at all.” He has guaranteed Trump’s acquittal, telling Fox News host Sean Hannity there’s “zero chance” the president will be removed from office.
“In the past,” Bowman said, “senators try to maintain at least the fiction of impartiality, to maintain at least the notion that they could be persuaded. What we have with McConnell ... is essentially a statement that there’s nothing you can do that’s going to persuade us: We’re the president’s men and women, and he’s going to stay in office.”
Democrats may see this as brazen, but it’s not unconstitutional.
In a criminal trial, lawyers probably would keep someone off the jury if he declared impartiality like McConnell.
In an impeachment trial, senators can’t be disqualified if they express bias.
Evidence and testimony
The Senate decides how evidence will be presented or whether it will be presented at all. Though the chief justice of the Supreme Court presides over the trial, for the most part, he has no control over the rules.
The only two instances in which the Senate has held an impeachment trial of a president show how widely the rules can differ.
Andrew Johnson was impeached for violating a law forbidding a president from removing certain government officials without Senate approval. His 1868 impeachment trial was a spectacle that lasted almost two months.
Forty-one witnesses, including 16 from Johnson’s defense team, testified before a packed Senate gallery.
Like a criminal trial, an impeachment trial has opening and closing arguments.
Clinton’s impeachment was spurred by an investigation into financial dealings before he became president, which shifted to a scandal about an extramarital affair. His trial in 1999 was far more subdued, abbreviated and secretive.
Senators heard opening and closing arguments, submitted written questions that were read aloud by the chief justice, and voted on whether to call witnesses. Only three witnesses testified. But they did so behind closed doors, and videotaped portions were shown to the full Senate.
In Trump’s case, lawmakers are deadlocked on how to proceed after the House OK’d impeachment articles.
Pelosi signaled she may delay sending the articles to the Senate until it sets fair procedures. But the two Senate leaders are at an impasse.
Senate Minority Leader Chuck Schumer, D-N.Y., has proposed that four witnesses testify, including former national security adviser John Bolton and acting Chief of Staff Mick Mulvaney. Neither testified during the House impeachment proceedings.
Schumer said the Senate needs to see documents, including White House records related to withholding military aid from Ukraine. Trump is accused of withholding that aid and a White House visit to pressure Ukraine’s president to announce investigations that would help Trump politically.
McConnell said on “Fox and Friends” that Republicans “haven’t ruled out witnesses,” but he also indicated he’s not eager to hear from new ones. He said the Senate should adopt the same rules as for Clinton’s trial.
This sort of procedural debate is very unusual in criminal trials, which are guided by well-established procedures and rules of evidence. Rules for impeachment trials are what the Senate decides they should be.
Is there a burden of proof in an impeachment trial?
Not formally.
The Senate has declined to define what burden of proof is required to remove a president, a vice president, legislators, judges and other civil officers.
In deciding whether a president committed high crimes or misdemeanors, “each senator decides for himself or herself what the burden of proof is,” Gerhardt said. “There’s a lot of making stuff up here.”
“What is and is not considered an impeachable offense is not predetermined by law.”
Frank Bowman University of Missouri law professor