What Is Impeachment?
Articles,  Blog

What Is Impeachment?


I’m Micah Schwartzman I’m the director
of the Karsh Center for Law and Democracy. which is a relatively new center at the
law school and and I’m here to host this session on impeachment. We’re running a
series like faculty student discussion series there’ll be three of these events
this is the first of them and the question what is impeachment we’ll have
a second session about a week from now and you should look for that there’s a
poster outside and you’ll see I think in the email that’s gone around about this
series the second one will be about the nature of of corruption and bribery and
what what kinds of offenses count for purposes of the impeachment power and
then last we’ll have a session on national security and impeachment so our
our basic format is to have two members of the faculty discuss their thoughts on
these topics for about 10 or 15 minutes apiece and then we’ll float open things
up for questions for about half an hour and and that’ll be that this is a chance
for you to talk to some members of the faculty and for them to give us their
thoughts based on their expertise on these matters and then to have a
discussion about them so today we have with us
psy Prakash who teaches constitutional law specializes in presidential powers
and Fred shower who also teaches constitutional law who specializes in
everything and and and thanks to all of you for being here on this Monday
afternoon and after they’ve talked for a little while I’ll open things up to
questions and invite you to share your thoughts Thanks
can you hear me alright so it’s a pleasure to be with you today for this
late lunch and I won’t mind at all if you close your eyes and meditate during
our during our talk here I’ve been asked to talk about what is impeachment fret
as well I’m just going to describe the origins and and briefly describe the
process and it sort of introduce you to the whole topic I’m sure many of you are
well aware of it but some of you may not be so impeachment is a process that
comes from Great Britain Great Britain the House of Commons could impeach they
would take a vote on articles of impeachment and then they would appoint
managers who would then go argue the case before the House of Lords and Great
Britain anybody in the realm could be tried in this way it was just a trial
anybody can be tried in this way you did not need to be an executive officer to
not be a judicial officer just a common person could be tried in this method and
the punishment could be anything right there was no limit on the types of
punishment it was just basically a criminal trial held in held in
Parliament through this process of the House of Commons impeaching and then the
House of Lords trying and so that the Parliament had judicial power right we
all know that the House of Lords was the highest court in the land but this was a
way of starting the process in a sort of different method not using the King’s
Bench but using not using the King’s courts the Kings judges but using the
House of Commons itself and so that that process found its way to the colonies
and it found its way into several state constitutions and when they created the
cutting of the constitution and in Philadelphia they decided they were
going to have two chambers the House of Representatives and the Senate and they
decided to recreate impeachment but they did so with certain changes first only
certain people could be impeached and removed or rather impeached and tried
they had to be officers of the United States
right which means that we no longer people in this room unless you’re an
officer of the United States you can’t be impeached by the house or convicted
by the Senate because they’ve limited the scope of who can be covered by the
process and then secondarily they no longer made it possible for the Senate
to order right you know order some jail or order that someone be hanged and
what-have-you the Constitution itself provides that
the punishment for impeachment shall be removal so go no further than removal
from office and disqualification from holding future office so you can’t you
know we can’t have a Tower of London where the Senate puts people in irons
after after a trial although you know there is there actually is a tradition
of either chamber putting people in jail but that that has to do with their
contempt power not something we’re not going to talk about today so they
limited who could be impeached in room who could be impeached and tried and
they limited the types of punishments and so our Constitution you know says
officers of the United States early on they discussed the possibility that a
senator could be tried it could be impeached and tried and they basically
decided no senators aren’t officers of the United States within the meaning of
the impeachment clause ever since then it’s been executives and judges who have
been subject to the impeachment process my understandings of the houses impeach
seventeen people the Senate has convicted eight of those people the the
people convicted are all judges although two presidents have been impeached by
the house they were not convicted by the Senate Andrew Johnson post-civil war and
then Bill Clinton in 1999 but neither of those people were convicted by the
Senate so it’s it’s a it’s a very elaborate process for removing someone
from office it’s seldom invoked in part because it takes so much of the houses
energy and then the Senate’s energy to actually pull it off there I think for
the most part of people in Congress hope that people resign rather than
forcing Congress to go through this process and oftentimes you know
executive branch officials will resign if they see the handwriting on the wall
that’s probably why Nixon resigned right he probably he was told by his
Republican colleagues that he would be convicted and he decided not to go
through that humiliating process other times presidents decided to put
people to the test right obviously Johnson and Clinton decided to do that
but more often than not people resigned rather than going through this process
because judges have such a secure tenure they can’t be fired by ordinary means
you know impeachments more typically used for judges so I don’t know how long
have I going on here Mike have I gone ten minutes huh
so you know the the big question of the day I think is you know as the president
committed a high crime and misdemeanor as he committed treason bribery or high
crime and misdemeanor and you will hear you know different things from different
people and it’s it’s generally influenced by their perception of the
President that’s often the case impeachment is a is a judicial process
but it’s also a political process and I think there’s some people who argue that
it’s got to be a crime Nixon’s attorneys tried to argue that other people will
say of course it doesn’t have to be a crime if you abuse your office or show
yourself to be unfit for office they can impeach you for something that isn’t a
crime my I have the view that it doesn’t have to be a crime that the phrase high
crime in this demeanor isn’t a reference to crimes themselves but to some act
that’s sufficiently worthy of condemnation by by the House and the
Senate and so you don’t need to prove a crime
but many people I think find the idea of a crime comforting in the sense that if
they think that officer has committed a crime it seems more shut and dry that
the person ought to be impeached and removed of course those of you who have
read about the Clinton episode know that you can be guilty of a crime but not not
be removed from office because there’s some element of politics that goes on
there’s some sense certainly from the Clinton impeachment scenario where Democrats I think
concluded that maybe Clinton committed a crime but it wasn’t the crime itself
wasn’t worthy of removal because he committed a crime to protect his his his
wife and his daughter from the sordid details of an affair with a intern in
his office and so that you know there’s gonna be a lot of a lot of argumentation
about whether Trump commits committed an impeachable offense and we’ll we’ll wait
and see okay so thank you all for coming so Mike introduced me as someone who
teaches and occasionally writes about constitutional law but that’s not why
I’m here I’m here as an evidence person and in
fact I will as some of you know I will leave this event and we’ll go to
evidence class so I’m here largely to talk about evidence procedural
dimensions and so on so if there is an impeachment then after that under
article 1 section 3 Clause 6 of the Constitution if there is an impeachment
then there is a trial in the Senate a trial in the Senate in which the Senate
can convict by a two-thirds vote and importantly the Constitution says sole
power to try all impeachments is in the Senate for impeachment of the President
the presiding officer is the Chief Justice of the United States so that’s
the bare bones of the procedure there are a couple of interesting issues that
come out of that one of them and perhaps the most important of them confusingly
comes out of the case of Nixon versus the United States
I say confusingly because Nixon was not Richard Nixon was Walter Nixon the
United States District Judge in Mississippi
and Walter Nixon was impeached and then there was a trial in the Senate and
Walter Nixon challenged the procedures for the trial in the Senate he claimed
that I should mention just this an aside the impeachable offense was perjury the
perjury came out of a number of events in which Walter Nixon had tried to
interfere in a state criminal proceeding having interfered or tried to interfere
in a state criminal proceeding he was then asked to testify about this before
a grand jury at which grand jury hearing he lied so Walter Nixon claimed the
trial before the Senate was a trial and by granting the power to try to the
Senate it was required that all of the senators be there all of the senators
preside over the taking of evidence and the like the Senate had decided that it
had better things to do so it according in accordance with the Senate rules
about impeachment it had created a committee a subcommittee of senators to
hear the evidence and then make a recommendation to the full Senate the
issue before the Supreme Court in Nixon versus the United States was not the
issue of whether that was proper but rather whether the decision about
whether it was proper was to be made by the Senate or to be made by the courts
so here for the benefit of those of you who are one l’s that have not yet
confronted this issue this implicated what is known as the political question
doctrine the political question doctrine is not about questions that are
political as you might think from the name rather it is about questions that
are held by the courts and by the Supreme Court to be for the
political branches of governments and not for the judicial branches of
governments the Supreme Court in Nixon versus the United States said that
partly because of difficulties in the court making these determinations but
mostly because of what is known as a textually demonstrable commitment to a
coordinate for a tree of governments these were decisions to be made entirely
by the Senate most of what the court talked about was the word sole and the
court said whether they were right about this as contested that by giving the
sole power of impeachment to the Senate that meant that the Senate could make
all of the rules and that the courts would quite simply not be involved
except for the fact that the Chief Justice would preside if for the
impeachment of the president so what we wind up with as a result of Nixon versus
the United States that’s 9 1993 is a situation in which the Senate decides
what the procedures will be there are elaborate Senate rules that have been in
place for some time about what the procedures will be and those are the
procedures that determine how everything will go on it turns out that in many
respects consistent with what’s I was saying and consistent with the fact that
the word try is there in the Constitution however political a process
it may be at least according to the Senate rules it more or less and the
less is as important as the more it more or less looks like a trial there is a
committee of prosecutors there are defense counsel there is evidence that
is taken there is cross-examination there are a whole bunch of things
of this variety that sort of resemble a trial despite the fact that it perhaps
in the most interesting dimension it’s not a trial that is in the normal course
of things the jury and a trial does not yet does not get to determine what is or
is not a crime here the Senate largely determines what is or is not a high
crime or misdemeanor but other than that in many respects it looks like a trial
so if there is going to be a trial in the upcoming weeks or months or whatever
the Chief Justice will preside interesting aspect of this is that the
Chief Justice who has an extraordinary academic record an extraordinary record
as an appellate lawyer an extraordinary record as an appeals court judge to the
best of anyone’s knowledge has never actually tried a case and has never sat
at a judge as a judge in a trial many judges won’t wind up as Court of Appeals
judges by virtue of having been a federal district judge that is not the
case with Chief Justice Roberts I don’t even know whether we took evidence or
not I assume yes but I have no way to find out at least no legal way to find
out but he will preside one of the interesting dimensions of this for those
of you who know or learning something about evidence is that evidentiary
rulings are largely made in the context of objections there will be objections
to evidentiary rulings evidentiary rulings that at least what we know about
the potential upcoming case may involve questions about whether hearsay evidence
can be taken may involve questions about personal knowledge may involve
constitutional questions about the right to confront and cross-examine may
involve a whole bunch of other things in the first order of business or in the
first iteration of all of this there might be an objection to some form of
evidence and then the Chief Justice presiding will make an evidentiary
ruling what happens then in a normal trial when the trial judge makes an
evidentiary ruling except for the very rare cases in which they are appealed
that’s that it turns out that under the rules of the Senate if there is an
evidentiary ruling that can then be challenged or appealed to the full body
that did not happen once in the Clinton trial
it did happen some number of times in the Andrew Johnson trial so there is the
possibility out there that Chief Justice Roberts will make it evidentiary ruling
one member of the Senate will then stand up and say well based on my experience
as a trial lawyer that’s an incorrect ruling as a matter of evidence and then
the full Senate will determine whether that’s a correct ruling or not whether
that happens we don’t know so one question is how evidentiary matters will
be dealt with another question is the extent to which if at all the normal
rights that one would expect a defendant’s in a criminal proceeding to
have so I mentioned confrontation briefly that is the Sixth Amendment
right to confront and cross-examine opposing witnesses that’s a big deal in
evidence law at the moment as some of you know and some of the rest of you
will know next week well that’s a big deal in evidence law but there is a
question whether the president’s on trial would have a Sixth Amendment right
to confront and cross-examine witnesses there is a question whether the
president on trial would have the right of to refute of the right of refusal of
self-incrimination that is the right not to take the stand the claim of Fifth
Amendment rights there are a bunch of other due process rights fifth Amendment
rights Sixth Amendment rights and so on that might be applicable but we don’t
have an answer the question of whether a president would be entitled to them what
we do have an answer to is presumably the Senate’s decision on all of this
will be final one final observation about all of this this is a little bit
of my pet peeve some of you have heard this pet peeve before so if you accept
the view that this mostly looks like a trial subject to some important
differences and if you accept the view that in mostly looking like a trial the
impeachment process is mostly analogous to grand jury indictments and that trial
before the Senate is mostly analogous to a criminal trial which means that the
members of the Senate are sitting as jurors then what should we expect of
Senators prior to the actual trial in a normal criminal trial if a juror
announces in advance her or his view about the guilt or innocence of the
defendant before the trial has even started they will be immediately
excluded as a juror with the possible exception of senator Sanders who at
least has mentioned the word juror and has occasionally been a little bit
reluctant to express a view about this all of the other sitting senators who
are now running for presidents have already expressed the view about the
guilt or innocence of the defendants that’s curious and maybe it’s right maybe it’s wrong
you can think about that I am troubled by it not only because of
the analogy to a criminal trial but even even the apps even in the absence of the
analogy to a criminal trial we might expect a deliberating body of any of any
variety so at least try to keep an open mind prior to hearing the evidence we
haven’t seen that I’ll stop at that well I think given what he has said I don’t
think it’s gonna happen is there a requirement that the Senate conducted
trial after the house and peaches I think you know if you’re an originalist
you might think the implicit answer is yes but you know I think we’ve seen
other instances where you might think the Senate had an obligation to do
something and they didn’t do it you speaking you know referring to the
treatment of nominees to various various federal benches but also you know
executive branch appointments etc that’s been going on for at least the century
where presidents have nominated people and they they’ve just made them cool
their heels until the president leaves office so you know I don’t I don’t think
we’re gonna have to confront that question because McConnell has said
there’s gonna be a trial but so I think that’s right if there were if the Senate
decided not to have a trial at least a fair reading of Nixon versus the United
States suggests that that’s not reviewable
Senator McConnell has never asked for my advice on anything but if he would if
that’s what he wanted to do and if he asked my advice I would probably suggest
to him that he conduct a proceeding that looked somewhat like a motion to dismiss
that is one way to avoid the trial would be to have right at the very beginning a
senator to essentially make a motion that the indictment was insufficient
Sustaita the elements of a crime or something of that sort then have the
Senate vote on the motion to dismiss and that would now that gets in tricky
issues of where the majorities are and everything else but there might be
procedurally slightly easier ways of doing it rather than just saying no this is a question about the Senate
procedure and getting back to how evidence might be disposed of
what is the vote thresholds going to be on these questions is it going to be a
majority vote or are these subject to a 60-vote threshold as many Senate my
understanding I don’t have the rules in front of me but my understanding is that
it is majority vote and my understanding is that it was a majority vote during
the Johnson trial I might be wrong about that but I think it is it is majority
vote on evidentiary rulings even though it is supermajority for conviction various members of the executive branch
have stated that they will refuse to appear before the house during the
impeachment inquiry what power does the house have to compel them to come in
that’s since well the house the house has the sergeant-at-arms
in in the past they’ve used to sergeant of arms to arrest people and put them in
jail if they don’t want to testify and I think if you read the papers there are
Democrats saying that they will do that but so they could do that that’s a
measure of self help they can also go to court and try to compel testimony by
having the courts intervene and the problem with that approach is it will
take months to resolve so I I don’t I I don’t think that they’ll be able to
compel someone to testify I mean I don’t think they’ll be able to compel
something to testify in the short term because I don’t think they’re gonna jail
people and of course you can jail someone they still won’t testify right
the whole point of jailing them is to get them to testify it’s a contempt
procedure so I you know I having said all that the president can’t really stop
someone from testifying right and I think despite his counsels letter some
people that you might have thought were covered by it testified I mean that that
suggests there’s a been a lot of talk over the last couple of months about
supposed constitutional crisis my own view is that a procedure that is
actually provided for in the Constitution is not a constitutional
crisis a constitutional crisis might exist under circumstances of extreme
disobedience to highest court orders so I look around the room there aren’t that
many people here who aren’t likely to remember the Watergate era and talks
about constitutional crises at the time but at least there was some talk at the
time of constitutional crisis when there was discussion of the possibility that
Nixon President Nixon Richard Nixon not Walter while still president would
disobey a supreme court order so the president was ordered to turn over some
number of Records mostly tapes to the investigation the president then claimed
executive privilege that case went to the Supreme Court during the Supreme
Court arguments and just after the Supreme Court argument the president’s
lawyer James st. Clair prominent Boston lawyer at the time was asked the
question if the president loses will the president comply with a Supreme Court
order to turn over the documents st. Clair then said cryptically we must
never forget that the president has his own constitutional obligations shortly
thereafter there was an outcry against that and the president caved that is the
position changed the position of the administration was if we lose before the
Supreme Court and the president by name in particular is ordered to turn over
the documents the president will do so but at the time there was a worry what
if the president doesn’t turn over the documents under those circumstances
that’s a genuine constitutional crisis so
under those circumstances a court can summon the courts intrinsic
enforcement’s authority that it that is it can summon the its power to have a
sergeant at arms or more accurately in this context the United States Marshals
Service actually enforce a court order but what was what people worried about
at the time is what if the United States Marshals Service even all of them show
up at the White House to enforce the order and the president says no at that
point we can imagine that there is a fundamental foundational conflict in
which on the one hand we have the United States Marshal Service with about 2,000
members and on the other side we have the army Navy the Air Force and the
Marines and then we come down to the final question of is ultimate authority
even in a democracy ultimately a matter of who has the final repository of force
that we’ve never come to that here put aside the Civil War and the like we’ve
never come to that here but if you look at recent events in various countries
throughout the world this happens I think that’s what a lot
of people mean when they talk about a constitutional crisis as in Egypt 10
years ago roughly in which at the exact same time there were two different
competing forces both claiming to be the constitutional force of the government’s
basically the military made that decision we haven’t come to that
recently and probably would not have in 1974 but that’s a real constitutional
crisis probably not just going through the impeachment procedures as set forth
in the document I was I can’t remember the Clinton
impeachment very well but I remember some of it being live on NPR but can you
speak about how public this process will be I know there’s criticism now of how
private the process is at the moment well the house has rules that allow the
taking of testimony in private and that’s what they’re choosing to rely
upon I don’t think there’s any any suggestion that the Senate’s gonna
conduct a secret trial of the president and a lot of his concerns will be I
think met in that in that forum so I don’t you know I don’t suspect that the
whistleblower will be kept secret at that point if if you know if I mean
senator Graham has said that they’re not gonna allow someone to make a claim
against the president without revealing who they are and their background the
the Senate rules on Senate trials of impeachment I don’t know the exact
language in front of me but it says something to the effect of the doors
shall be open that is at least the proceedings are as public as normal
Senate proceedings that doesn’t say anything about whether they will be on
radio or on television or who can come or any of that but at least according to
the Senate’s own proceedings and implicitly according to the Constitution
they can’t be secret there’s no way they’re gonna have a secret trial all
those senators want to be on TV it’s just not gonna happen to go back to
Fred’s earlier comment about defying a judicial order
I think what’s a constitutional crisis is really just in the eye at the
beholder and I mean that in the following sense what would have you know
what you might have thought was a constitutional crisis 200 years ago like
a president starting a war it’s no big deal anymore and if you look at this
particular context the house is acting as a grand jury the Senate’s acting as a
petit jury they’re they are a court of sorts and if the president ignores the
war you might have thought in a different era that was a constitutional
crisis but presidents have long defied subpoenas issued by Congress maybe
not impeachment subpoenas but other subpoenas and so I think people people
almost expect the presidents the council’s letter from the president was
you know written in very interesting ways but I don’t know if it came as a
big surprise to people that the president’s not going to cooperate and
it is it is interesting one of the things that makes this process perhaps
more political and legal is in a normal criminal trial we don’t expect the
defendant to cooperate with the prosecution the defendant just says I am
taking the fifth leaving it at that whether that analogy carries over we
don’t know well my advice that the president is not to say I’m taking the
fifth so professor Prakash I know you mentioned that your view on high crimes
and misdemeanors is that doesn’t require a crime but there’s sort of been dispute
as to that is that dispute something that’s judicially reviewable or is that
up to the Senate to decide I mean I think Fred’s absolutely right the courts
aren’t going to intervene and decide what a high crime misdemeanor is that is
to say if the president is convicted and he says it’s not a high crime
misdemeanor what you’ve convicted me of you know he’ll be he’ll he’ll be out of
luck it’ll be President pence at that point and the courts not going to
reinstate him I mean if as in Nixon versus the u.s. if the court is not
going to touch issues of procedure which we would think courts are good at then
it’s certainly not going to touch issues of what’s the ultimate substantive issue
of is this a crime or not sorry
is there a burden of proof in an impeachment trial and if so how does
that work when there aren’t any elements and if not how does a trial work without
a burden of proof and let you handle this one there is there is no specified
burden of proof so because there is no specified burden of proof there is there
is nothing explicitly saying to the hundred members of the Senate you should
find the defendant guilty if and only if you are convinced beyond the reasonable
doubt so as between beyond the reasonable
doubt clear and convincing evidence or a preponderance of the evidence once again
we don’t know once again it’s inconceivable that this would be
reviewable by the Supreme Court and I think the implicit understanding is that
each member of the Senate should make her or his own decision about what the
burden of proof ought to be for that senators vote are there any other any implications of
timing in terms of with the parallels to a criminal trial a right to a speedy
trial and then also in the instance of timing about how long impeachment
proceedings may or may not take with the impending national election just I’m
thinking about the actual kind of constitutional legal framework of the
timing of the process well I don’t think there’s any claim that it has to be it
has to be a speedy trial I suspect that people will say there has to be a speedy
trial when that favors them politically and when it doesn’t they won’t I think
you’re right that the Democrats are you know thinking about the election
calendar in two different senses I don’t think they’re gonna want to have an
impeachment in September of next year because that will it will it will appear
to be an odd thing to do when the people are about to vote on Trump in another
way so I suspect that they’ll move sooner rather than later and I don’t
think that the Senate’s gonna dilly-dally with holding the trial or
delaying it in some way but I you know I don’t I I think Fred’s got a right that
the Constitution says the house tries in the Senate sorry the house impeach is in
the Senate tries it doesn’t really specify a lot more beyond that it’s it’s
not clear the extent to which all the protections found in the bill of rights
related to procedure are supposed to apply to impeachment so I you know I
suspect if someone’s talking about a speedy trial they they just want to get
this over with and it if someone denies that there’s such a right they want to
prolong it it is it is an interest it will be an interesting case study for
the extent to which formal legal language in the Constitution with formal
legal implications spills out into the larger debate and spills out into the
larger culture just as lots of people these days talk about the First
Amendment in contexts in which the First Amendment does not apply
the first amendment for example does not apply to the National Basketball
Association it’s a private entity but we see we have seen over the last hundred
years a form of public discourse in which the first amendment that
technically applies only to governmental institutions now applies across the
board there may be a similar thing that will happen if impeachment becomes more
public will formal Criminal Procedure protections fifth amendment sixth
amendment speedy trial proof beyond the reasonable doubt presumption of
innocence and everything else will as a matter of public this course will they
spill over into public discourse even if they are not technically applicable in
same way in the same way that the First Amendment has spilled over into public
discourse even if not technically applicable this remains to be seen and
it’s likely to be political we certainly see even these days in vast numbers of
different contexts someone who has been accused of something outside of the
criminal process making claims about the presumption of innocence we’re likely to
see the same thing here okay okay so let me Oh side that was
more about this than I do so let me just say one very brief thing the language is
not just high crimes and misdemeanors it’s treason bribery and other huh and
or is it or and otherwise and are the hard crimes and misdemeanors so indulge
me if for committing an act of statutory interpretation there is a maximum
statutory interpretation au stem generis ejusdem GE newer GE and ER is that says
that where there is a general term followed by specifics the general term
should be interpreted or should be interpreted in light of the specifics
that are given so that maxim would say that in determining what is a high-crime
and what is a misdemeanor it should be things that look like treason and
bribery I you know I think people will make arguments about what the you know
what the standard is based on I think their perception of whether Trump needs
to go or not I think that’s just natural we saw that during the Clinton
impeachment where Republicans emphasized that the president had committed a crime
and Democrats emphasized that the you know that the crime if there was a crime
it all had to relate to the office in question and you know they claimed that
the crime that president committed President Clinton didn’t relate to the
office ah I I have a view it’s it’s very broad Gerald Ford once said it’s
whatever the house thinks is impeachable is impeachable
and I a lot of law professors criticize that I think it really depends on what
meant by this I think if the house thinks that someone’s not fit for office
I think they can find that to be a high crime misdemeanor and what do they mean
by that I think it could be a abuse of authority it can mean something as
simple as a crime there’s an interesting book out by Cass Sunstein written about
a year or two ago about the whole impeachment process and he says murder
is a high crime a misdemeanor even though it doesn’t relate to the office
but he doesn’t think that you know everything that could be a crime that
doesn’t relate to the office would be impeachable I think he says that not
paying your taxes is not an impeachable offense you know I would be inclined to
think they both are again if the House and the Senate conclude that whatever
you’ve done is suggest that you’re not fit for office that that seems like a
fine standard to me so I don’t I don’t agree with I think Fred’s Fred’s
argument might suggest and I’m not saying Fred the leases but it might
suggest that it has to be a really important crime or something super super
serious now murder of course is super serious but it certainly doesn’t relate
to the office necessarily I I’d be inclined to give it a very broad and it
I think that you know the impeachment as as Thomas Jefferson said is a scarecrow
it’s it’s rarely used and I think in part because the conviction threshold
and the Senate is so high and that does most of the work right you have this
wonderful process laid out of the Constitution that’s meant to police who
gets to serve but it’s it’s very hard to roll out because it’s so involved and
then you’ve got this ridiculously high threshold in in the Senate and that’s
what I think prevented the house and the Senate from impeaching and convicting
more people it’s I mean there is you raise an interesting question about
assume that you are a member of the Senate assume that you are an
open-minded conscientious member of the Senate we’re in the realm of icky we’re
in the realm of the counterfactual here but is it permissible to aggregate
smaller crimes this turns out as those of you who were in my evidence class
no to be a big issue at the moment in some number of non political trials it’s
an issue now before the Pennsylvania appellate court in Commonwealth versus
Cosby it is an issue likely to come up in people versus Harvey Weinstein and
some number of other cases how should a Trier of fact and how should a trial
deal with multiple events one view would say a moderately common scenario in some
number of sexual harassment or sexual violence episodes what if it turns out
that there is someone who is probably guilty but not beyond a reasonable doubt
guilty in six or seven or fourteen different events is it permissible for a
jury to say we can’t say that this person is guilty beyond the reasonable
doubt in any one particular one but we can say beyond the reasonable doubt that
this person has committed at least one of these that’s totally impermissible in
a criminal trial whether it would be permissible in an impeachment trial is
an interesting question that is if enough if a member of the Senate says
there’s a lot of stuff that troubles me there may not be one that all by itself
rises to the level of an impeachable offense proved beyond the reasonable
doubt but there’s a lot of stuff that troubles me there’s a lot of stuff that
I think is probably wrong I’m going to aggregate all of them together now we’re
just in the realm of senatorial conscience rather than formal law but
it’s likely especially here to be an issue I think I think Fred’s describing
what would go on in situ senators head not what they would actually say and if
they don’t say it then we don’t really know like we don’t have to we don’t know
enough to know that they don’t really think that the
there’s a preponderance of evidence or you know a proof beyond a reasonable
doubt as to any particular one to go back to Fred’s earlier comment if you
recall during the Cavanaugh hearings people spoke of about due process and
the presumption of innocence and so there are there is a sense in which
constitutional law not you know just sort of pervades you know all kinds of
discourse and of course that was a you know a constitutionally described
scenario but you know I don’t I don’t know if people had thought before that
the presumption of innocence applied in a judicial confirmation

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