WASHINGTON – In a six-page appeal to the House Speaker, Nancy Pelosi, President Donald Trump claimed he was more wrong in the impeachment process than even the 17th-century women who suffered from dreams, visions, and confessions caused by torture , were hanged.
“The accused of the Salem witch trials were given a more appropriate trial,” the president wrote.
His allies have made similar arguments, though not quite as hyperbolic. You said the president was convicted based on hearsay evidence. They argued that he had been deprived of the right to face his accusers. They alleged that Parliament’s impeachment proceedings were not allowed before a court.
However, legal experts say that this criticism, peppered with terms borrowed from criminal proceedings, is based on a misinterpretation of what the constitution says about impeachment and how much protection it gives the president.
The answer: not much.
Like Bill Clinton in the 1990s and Andrew Johnson over a century ago, Trump does not have the same constitutional protection that a defendant receives, they said.
“The President of the United States takes over the presidency on the condition that an impeachment may be instituted against him,” said Michael Gerhardt, law professor at the University of North Carolina. “He has no right to a due process.”
Comparing the president – each president – to a common criminal defendant is misleading, experts say. Here’s why.
Crime, punishment and due process
For one thing, Trump is not accused of a statutory crime such as theft or murder.
“What is and is not considered a criminal offense is not legally determined,” said Frank Bowman, a professor of law at the University of Missouri. Although the Constitution describes an offense as “treason, bribery, or other offenses and misdemeanors,” this standard is inherently broad.
This means that jurors – senators with their own political alliances – decide what the facts are and whether they matter, Bowman said.
No other jury in the United States has so much power. Juries in criminal trials are only asked to weigh the evidence and decide whether it is a crime.
Impeachment: Trump’s Senate trial was probably more partisan than Bill Clinton’s in 1999
Perhaps one of the most fundamental differences between impeachment and criminal proceedings is punishment when someone is convicted. Presidents lose office, which has never happened and Trump will most likely not happen. Criminal defendants can lose their freedom, and this happens regularly.
This brings us to the right process. The fifth amendment states that “life, freedom or property” cannot be withheld from anyone without a proper process being followed. A president facing impeachment is not at risk of losing life, freedom, or property.
The Congress “is not obliged to follow the orderly procedure, but can certainly choose to provide things that look like an orderly procedure,” said Gerhardt.
At least a proper process requires an impartial decision maker. “You can see that this is not really the case for impeachment,” he said.
Senators in impeachment proceedings must take an oath that promises impartiality.
But Senate Majority Leader Mitch McConnell, R-Ky. Said he was “not impartial at all”. He has guaranteed Trump’s acquittal and told Fox News presenter Sean Hannity that there is “no chance” that the president will be removed from office.
“In the past,” said Bowman, “senators are trying to at least maintain the fiction of impartiality, at least the idea that they can be persuaded. What we have with McConnell … is essentially a statement that there is nothing You can.” That will convince us: we are the President’s men and women and he will remain in office. “
Democrats may view this as brazen, but it is not unconstitutional.
In a criminal case, lawyers would likely keep someone off the jury if he declared as impartiality as McConnell.
In impeachment proceedings, senators cannot be disqualified if they express bias. That makes sense, said Bowman. Otherwise, “the majority just disqualify the minority and you have this kind of bizarre all-rounder when there are six people left. It gets silly.”
The Senate decides how evidence is presented or whether it is presented at all. Although the Supreme Court Supreme Court judge is leading the trial, he has largely no control over the rules.
“The Senate can pretty much set up any rules it likes that aren’t just crazy,” said Bowman.
The only two cases where the Senate has impeached a president show how the rules can differ.
Johnson has been charged with violating a law that prohibits a president from dismissing certain government officials without Senate approval. His impeachment proceedings in 1868 lasted almost two months. The property managers – the equivalent of prosecutors – provided documents and testimonies that testify to 11 impeachment cases.
More: Impeachment process: How it works where we are
Forty-one witnesses, including 16 from Johnson’s defense team, testified before an overcrowded Senate gallery.
Just like criminal proceedings, impeachment proceedings have introductory and concluding arguments. At Johnson, the final clashes between the property managers and the president’s lawyers lasted eleven days.
Clinton’s impeachment was boosted by a financial investigation before he became president, leading to a scandal surrounding an extramarital affair. His trial in 1999 was much more subdued, cut, and secret.
The senators heard introductory and final arguments, submitted written questions read by the Supreme Judge, and voted on whether to call witnesses. Only three witnesses, including Monica Lewinsky, testified. But they did so behind closed doors, and parts that were videotaped were shown to the entire Senate.
In Trump’s case, lawmakers are stuck after parliament approved two impeachment procedures.
Pelosi indicated that she may delay the submission of the articles to the Senate until the procedures that she deems fair are set. But the two senate chairs are at a dead end.
Senate Minority Chairman Chuck Schumer, D-NY, has suggested that four witnesses testify, including former National Security Advisor John Bolton and Acting Chief of Staff Mick Mulvaney. Neither testified during the impeachment process.
Schumer said the Senate needed to view documents, including White House records of withholding military aid from Ukraine. Trump is accused of withholding this help and a visit to the White House to pressure the Ukrainian president to announce an investigation that would help Trump politically.
McConnell said on Fox and Friends that the Republicans “didn’t exclude witnesses,” but he also stated that he wasn’t looking to hear from new witnesses. He said the Senate should follow the same rules as for Clinton’s trial.
“Fair is fair,” said McConnell.
This type of procedural debate is very unusual in criminal proceedings that are based on well-established procedures and rules of evidence. However, the rules for impeachment procedures are set by the Senate.
Is there a burden of proof in impeachment proceedings?
The Senate has declined to define the burden of proof required to remove a president, vice president, legislature, judge and other civil servants.
During the 1986 impeachment lawsuit against United States District Judge Harry Claiborne, who made false tax returns, his lawyers argued that the charges against him should be proven according to the same standard as a criminal case: “beyond any doubt.” They argued that impeachment and impeachment would have consequences for the accused.
When deciding whether a president has committed serious crimes or crimes, “each senator decides for himself what the burden of proof is,” said Gerhardt. “A lot is done here.”
More: Donald Trump campaigns for a White House advisor who refused to testify in an impeachment investigation
During the impeachment proceedings against Clinton, several senators from both parties stated that the standard should be as high as in criminal proceedings. However, they did not agree whether the property managers had proven this standard.
For example, former Senator Jeff Sessions, R-Ala., Voted in favor of the conviction and said the property managers had proven beyond any doubt that Clinton had committed perjury and justice barriers.
However, other Republicans used the same standard and came to a different conclusion. Former Virginia Senator John Warner and Alabama Senator Richard Shelby voted to exonerate Clinton, but sentenced him for disability.
This article originally appeared in USA TODAY: Impeachment: How a Senate Trial Is Different from a Criminal Trial