What is the proof required to impeach a president? Unlike statutes that charge federal crimes and require the prosecutor to prove each element of the crime beyond a reasonable doubt, the Constitution provides no guidelines.
It provides simply that impeachment shall be for “treason, bribery, or other high crimes and misdemeanors,” that the House shall have the “sole power of impeachment,” and that the senate “shall have the sole power to try all impeachments” and remove a president from office upon a two-thirds vote of the “members present.”
The remedy upon a senate conviction “shall not extend further than to removal from office” but the convicted party “shall nevertheless be liable and subject to indictment…” Burden of proof and the nature of the evidence is not addressed. Nor is there a definition of “treason, bribery, or other high crimes and misdemeanors.”
This spare definition of impeachment has caused havoc in the hearings held by the House Select Committee on Intelligence because both sides have debated whether witnesses are credible based largely upon each side’s respective interpretations of criminal law standards of evidence that are inapposite in impeachments.
The unjustified reference to criminal law standards of evidence has produced diametrically opposing media reports, with Fox News Channel taking one side and all the other cablenets taking the other.
The respective chyrons of Fox and CNN during the testimony of Gordon Sondland, the Ambassador to the European Union, make this point.
Fox:
SONDLAND: TRUMP NEVER TOLD ME DIRECTLY THAT THE AID WAS CONDITIONED ON THE MEETINGS
CNN:
SONDLAND: GIULIANI PUSHED FOR ‘QUID PRO QUO’ WITH UKRAINE AS DESIRED BY TRUMP
In fact James Madison in Federalist 65 called the impeachment process “political” as the President can be removed for what is essentially a breach of the public trust and not a “crime” in the literal sense.
These facts of impeachment have not deterred the minority from using the hearings to allege that the witnesses produced by the Democrats are spouting “hearsay” when they testify to what they “heard” or “understood” from others about a matter at issue. Much has been made of the fact that nobody has testified that the President ordered or directed anything from his voicebox directly to the ears of any person or in writing.
This view produced the quotable Republican allegation that Trump told “no one on the planet” that he wanted an investigation of the Bidens and alleged 2016 interference in the election in exchange for the release of $ 391 million in military assistance to Ukraine.
Even though circumstantial evidence has the same weight as direct evidence in proving federal crimes, that may not be effective to impeach a president. Circumstantial evidence is best explained in the hoary portion of almost every charge to jurors announced by the judge: if someone walks into the courtroom with a wet raincoat and shaking a wet umbrella, you may conclude that it is raining outside [circumstantial evidence] even if the courtroom blinds are drawn and you cannot actually see the rain [direct evidence]. Courts also instruct jurors that circumstantial evidence shall have the same weight as direct evidence.
A lot of time was spent at hearings questioning whether the witnesses were testifying to their own knowledge. Some of them were. Some of them were not.
Just because criminal law standards of proof do not apply to impeachments does not mean that the proof need not include direct evidence. A public trial in the Senate to remove a president has to convince the citizenry that the charges are proven, an objective best served when witnesses testify to what they themselves saw or heard.
This is why an article of impeachment based on Trump’s July 25, 2019 call to Zelensky is so simple to prove: Trump said what Democrats argue is impeachable (“a favor, though”). It stands on its own even if the inferences to be drawn (Trump: “perfect”), (Democrats: impeachable) are hotly disputed.
A controversy within the House Democratic caucus is now happening. Is there sufficient public support to enact impeachment? Should Bolton, Pompeo, Giuliani and Mulvaney be called or is their testimony in a Senate trial sufficient?
And should two additional articles be included? One additional article is White House resistance to House subpoenas, a proposed article in Nixon’s proposed impeachment. A second additional article is Trump’s obstruction of justice.
There is no factual dispute regarding the fact that subpoenas were resisted. Is this justified or impeachable?
There is plenty of factual and legal dispute about whether Trump obstructed justice.
In the end, I believe that the if the House proceeds (no certainty) it will impeach on the July 25, 2019 call and the failure to respond to House subpoenas.