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Thursday, October 17, 2019

The Chief Justice and the Impeachment Trial

The upcoming Senate impeachment trial will be different from the one that many of us remember--the trial of President Clinton. In that case, there were no witnesses presented to the Senate. The facts were laid out in the Independent Counsel's report. The "trial" was basically a series of speeches by the House managers and by the President's lawyers. As a result, Chief Justice Rehnquist did not have to do much and kept a low profile.

This time around, there will be witnesses. Plenty of them. This means actual questioning and cross-examination. That, in turn, means that the Chief Justice will have to make a lot more rulings and will play a larger role. A particularly tricky issue, one would think, will be how to handle the identity of the whistleblower. In an impeachment trial, do the principles of the Sixth Amendment apply? Should the President be able to call the whistleblower and compel him or her to testify in the Senate? Here's a separate issue. Can the President invoke executive privilege to stop people from testifying if the House managers call them? There is no precedent for that, but who knows what the Chief will say if asked.

Granted, the Senate can overturn any ruling by the Chief Justice with 51 votes. (A tie means that the Chief's ruling stands). In practice, though, some Republican Senators might be reluctant to do this because that would make the trial look too political. I would note also that, while a Senate trial of a president is obviously political, the presence of the Chief Justice and the trappings of a trial tend to push lawyers and Senators more in a legalistic direction. (This was especially true during Andrew Johnson's trial.) 

I'll have more on this soon.

Posted by Gerard Magliocca on October 17, 2019 at 09:03 AM | Permalink

Comments

Arthur,

"Jury of your peers" refers to people equally as ambitious as you, that's why it has to be the US Senate--they're the only body where everyone wants--and has a chance--to be president.

Posted by: Senator Obama | Oct 18, 2019 7:21:47 AM

The principles of the Sixth Amendment clearly do not apply to impeachments. In particular, the jury is not composed of the citizens of the District where the crime occurred, but of the Senate, who are citizens of all 50 states.

Posted by: arthur | Oct 18, 2019 1:08:07 AM

The principles of the Sixth Amendment clearly do not apply to impeachments. In particular, the jury is not composed of the citizens of the District where the crime occurred, but of the Senate, who are citizens of all 50 states.

Posted by: arthur | Oct 18, 2019 1:08:07 AM

Not true. If an anonymous 911 call alerts police to the evidence of a murder, the victim is dead. Prosecution proceeds on the basis of available evidence. The accuser is the forensic examiner.

Posted by: arthur | Oct 18, 2019 12:58:37 AM

"The defendant doesn't get to cross examine the 911 caller, who may be completely unknown to everyone."

The fact that you compared the whistleblower to a 911 caller is...well, it's ridiculous. If that's the case, police don't charge someone based off of a second-hand 911 call. They go to the actual victim and ask if they'd like to press charges.

So if we're going to go with this ridiculous charade, then the whistleblower's complaint shouldn't even be the basis of an investigation. They should go to the sources and ask if they wish to accuse the president of corruption.

And since the impeachment, by being about high crimes and misdemeanors, is by definition criminal, the president should be able to question his accuser(s) directly.

Posted by: thegreatdisappointment | Oct 17, 2019 4:43:23 PM

The whistleblower's testimony is not needed for a fair trial, so Trump has no right to cross examine them. Their contribution was alerting Congress to the record of Trump's call with Zelensky. The whistleblower wasn't a witness to the call itself. If a witness is needed to or attest to the accuracy and completeness o fthe call record, it will be someone who was listening in on the call, probably the author of the document.

Trials where the initial identifying witness is not known to the defendant, sometimes not even known to the prosecution, are commonplace: e.g., someone sees an active shooter and calls 911. The polcie find the defendant at the scene with the gun in his hand and the body on the floor. The defendant doesn't get to cross examine the 911 caller, who may be completely unknown to everyone.

I'm not sure that there will be any witnesses. If this were a judicial trial, the Defendant/President's multiple statements that the document is an accurate rendition of the telephone call would be hearsay, but admissible as statements against penal interest. At most you may need an expert on how Twitter works to use the self-incriminating tweets, and a cameraman to testify that the statements before cameras aren't deep fakes. The Senate isn't bound by hearsay rules and can dispense with those witnesses.

Evidence other than the phone record, if it's needed, can be introduced through the depositions of those who have testified and will testify before the House. That's how the Clinton "trial" was conducted without witnesses, except there it was mosty grand jury testimony.


Posted by: arthur | Oct 17, 2019 3:53:42 PM

There's not going to be an impeachment trial. Democrats can't even hold a vote to open an official inquiry.

Posted by: thegreatdisappointment | Oct 17, 2019 2:51:58 PM

Just link to the rules:

https://www.law.cornell.edu/background/impeach/senaterules.pdf

Posted by: El roam | Oct 17, 2019 10:22:33 AM

Many complicated questions indeed, just worth to note, that rules for impeachment trials ( Senate) dictate clearly, I quote rule xx:

At all times while the Senate is sitting upon the trial of an impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors to be closed while deliberating upon its decisions. A motion to close the doors may be acted upon without objection, or, if objection is heard, the motion shall be voted on without debate by the yeas and nays, which shall be entered on the record.

End of quotation:

So, one may suggest, that doors shall be closed, while the whistleblower testifies.But, this is hell of " grand jury " then. Not so simple.

Thanks

Posted by: El roam | Oct 17, 2019 10:20:09 AM

"In an impeachment trial, do the principles of the Sixth Amendment apply?"

It'd make sense that the president

(1) can only be accused of things that are definitely defined as "high crimes and misdemeanors" beyond a reasonable doubt--that is, he can't be accused of things that only MIGHT have been defined as high crimes and misdemeanors by the founders

and

(2) presumed innocent of those accusations until proven guilty beyond a reasonable doubt.

Otherwise it's not a "trial", it's a "kangaroo court".

Posted by: Winship Apprendi | Oct 17, 2019 10:05:07 AM

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