Trump's Impeachment -- Open Season or Rules Based?

[EdG Note: IANAL. If I am wrong about legal aspects in this essay or there are factual errors, let me know in the comments and I'll update.]

There's been a lot of bloviating by media talking heads as the Senate trial of the impeachment of President Donald J. Trump proceeds. This question should naturally arise in the minds of observers: Are there actual rules and precedents that govern impeachment or do the two sides make it up as they go along?

The answer is yes, there are rules and precedents to follow for impeachment. The Senate Impeachment Rules (formally The Rules of Procedure And Practice In The Senate When Sitting On Impeachment Trials) and the Standing Rules of the Senate. In addition, compilations of precedent, including Hinds’ Precedents (1907), Cannon’s Precedents (1936), Deschler’s Precedents (1994) and Precedents of the U.S. House of Representatives (2017), may be consulted where they pertain to the Senate.

What got me interested in the topic was the recent release of an audio recording of Trump demanding the firing of former Ukraine Ambassador Marie Yovanovitch. In the ever salivating and drooling MSM, this is generally reported as the final nail in Trump's coffin. Unfortunately for the MSM, the recording is problematic as impeachment evidence for these reasons:

  • The recording was made more than 1 year before Yovanovitch was fired and 15 months before Trump's phone call with the Ukrainian leader. IOW, the firing had nothing to do with the alleged quid pro quo or abuse of power
  • The recording was secretly made and appears to violate DC law regarding consent. Therefore, it's almost certainly inadmissible as evidence

In most operations of the Senate, no distinction is made between formal Senate rules and precedents; all are effectively treated as though they are rules. Hinds' Precedents regarding evidence include the following:

After discussion of English precedents, the Senate ruled decisively in the Peck trial that the strict rules of evidence in force in the courts should be applied.

Witnesses in an impeachment trial are required to state facts and not opinions.

Source: Hinds' Precedents, US Government Printing Office

If you've been following the impeachment trial in the Senate, you've likely noticed that the House Managers haven't exactly followed the "facts and not opinions" precedent. Why? Because opening statements are not evidence, and because their opening statements serve as campaign ad proxies. Just like in criminal and civil trials in courts, the two sides say whatever they can get away with.

In theory, though, opening statements are supposed to be limited to informing the jury of facts to be proved. In practice, however...


Sidebar: For more about opening statements, see The Trial Process: Law, Tactics and Ethics -- Opening Statement

Examples of things NOT to do in an opening statement include:

Asking the jury to resolve disputes in your favor. For example, you cannot refer to your witnesses as "good and truthful," and therefore more worthy of belief than your opponent’s witnesses, nor discuss how your evidence satisfies a legal standard.

Making negative judgments about your adversary or referring to the other party in scurrilous terms. You cannot, for example, call the defendant a "big cow."

Using colorful labels that characterizes facts in a way distinctly favorable to your side. For example, the prosecutor cannot characterize a crime as a "rampage of terror" or "unspeakable evil."


Hind's Precedents and the other House documents are quite complete. While I limited this essay to a very brief discussion of evidence and opening statements, practically every aspect of impeachment is covered by either rules or precedents.

References

Chapter 69 - Rules of Evidence in an Impeachment Trial -- Hinds' Precedents

How a Fair, Transparent Impeachment Trial Should Proceed -- Public Citizen

Trial Memorandum of President Donald J. Trump -- President's Legal Team

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"“How could the Democrats regard it as ‘high crimes’ to carry out more deportations than any predecessor and a global assassination campaign of unprecedented scale?” Chomsky asked out loud, referencing the immigration and national security apparatuses and policies put into place by former president Barack Obama and taken to their logical extreme by Trump.

The Horrific Treatment of Immigrant Children During Both the Obama and Trump Administrations

“Same as Watergate,” Chomsky explains. “There was an attempt, by Robert Drinan, to include [Richard] Nixon‘s real crimes, like the bombing of Cambodia, in the bill of impeachment, but this part was cut out and instead the focus was on an attack on Democrats, much as it is today.”

Rev. Drinan was a prominent Jesuit priest, leftist, anti-war activist and Democratic Party representative from Massachusetts who drafted and introduced the original resolution calling for Nixon’s impeachment in the U.S. House of Representatives in 1973. Ultimately frustrated by liberal members of his own party, Drinan’s language regarding Nixon’s secret and unlawful bombing of Cambodia was swapped out for the Watergate charges...."
https://osociety.org/2020/01/25/noam-chomsky-torches-democrats-narrow-tr...

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14 users have voted.

to hear our lawyers weigh in here. I have watched NONE of the Impeachment farce nor have I bothered to read much about it at all. Why raise my blood pressure for that hot mess when there are so many other things to get angry about?! And I know I would scream so loudly back at the boob tube my neighbors would undoubtedly hear it, not worth it for me, although I have made my opinion known to one of them on this idiocy as I am what I am. One of my friends is glued to it and has told me her hero is Adam Schiff. Needless to say, we don't discuss it, she holds out hope there and I most assuredly do not, I mustn't be too negative, sigh...

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Only a fool lets someone else tell him who his enemy is. Assata Shakur

edg's picture

@lizzyh7

Republican Senators Lisa Murkowski and Susan Collins were leaning toward siding with Democrats on at least some issues until Schiff's co-manager Nadler took a scorched earth approach in his opening statement and accused Senators of being complicit in a coverup if they didn't vote the way he wanted them to.

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10 users have voted.

@edg looking for an out to avoid upsetting Big Daddies Mitch and Don. A Profile in Cowardice who should be voted out by Mainers or whatever they're called up there. She might well use the slightest pretext of a forceful comment by the House Dem Managers, wouldn't surprise me at all.

Murkowski and another 3-4 so-called moderate wimps also will be closely looking at a way out to later explain their votes to condone Trump's HC&Ms.

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5 users have voted.
ggersh's picture

all the actual crimes he should be impeached for are empire friendly so no way can we impeach him for those actual crimes and Mitch the madman will make sure of that.

Disclosure I haven't bothered to watch any of this kabuki BS

https://jessescrossroadscafe.blogspot.com/

"This house [the Senate] is a sanctuary; a citadel of law, of order, and of liberty; it is here—it is here in this exalted refuge—here, if anywhere, will be resistance made to the storms of political frenzy and the silent arts of corruption. And if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor."

Aaron Burr

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15 users have voted.

trump amerika's last president

The CIA website has a kids section with games where children can “solve puzzles, crack codes, and discover clues like a real CIA officer”.

This is like ISIS starting an ice cream truck business.

Caitlin

edg's picture

@ggersh

Now, if they were trying him for assassinating the Iranian General, which is clearly against the law and breaks at least 2 treaties we're parties to, I might tune in now and then. As you pointed out, though, bringing crimes like that to trial could mean Obama might be in trouble for his illegal assassinations of American citizens. And Bush, Jr. for all the laws he broke.

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13 users have voted.
snoopydawg's picture

The biggest problem with democrats using it is as you said. "Trump put out a hit on her!" But she was able to continue her job for another year until Trump finally had enough of her back stabbing. And whatever happened to "I serve at the pleasure of the president"?

I don't know why Trump's lawyer isn't showing the tape of Sondland and other witnesses that stated Trump did not tell me to withhold the aid until Zelensky opened an investigation into the Biden's corruption. Anyone who hasn't had the chance to watch the video Wendy posted do. I have read numerous articles that say the same thing.

Trump: Did not ask for a quid pro quo.
Biden: "Fire the prosecutor or you won't get $1 billion."

Politico wrote about how some people in Ukraine worked for Hillary to get her elected back before Trump became president and were concerned about how Trump would react when he found out. He found out.

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America is a pathetic nation; a fascist state fueled by the greed, malice, and stupidity of her own people.
- strife delivery

edg's picture

@snoopydawg

Saturday was a 2 hour summary. They'll spend up to 3 days this coming week to present their full opening statement.

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6 users have voted.
snoopydawg's picture

@edg

because they say that their minds are already made up. But now that Trump's lawyer gets a turn they say that every thing he says is going to be conspiracy theories. Umm...the evidence is available for everyone to see if one quits limiting their website searches.

"Consortium news used to be my first stop on the net, but once they didn't buy into the Russian propaganda I can't read them anymore."

This was after Robert Parry debunked every darn thing about Russia interfered with the election.

Here's what Turley has to say.

And Schiff is lying to the country by saying that if Ukraine doesn't fight Russia over there we will have to fight the Russians here. Lots of people think that Russia has invaded Kiev and has tanks there and that was why we sent Ukraine the javelin missiles. They can't be used on the front lines and from what I understand they haven't been dispersed yet.

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10 users have voted.

America is a pathetic nation; a fascist state fueled by the greed, malice, and stupidity of her own people.
- strife delivery

Roy Blakeley's picture

@snoopydawg Wasn't he once the darling of MSNBC? On other matters, Trump should be impeached for sending Javelins to Ukraine, not for briefly delaying them. Do we really want to see Javelins in the hands of Svoboda, Right Sector and the Azov Battalion? Oh, I guess if you are Nancy Pelosi or Adam Schiff you do. No reason to withhold weapons from Nazis and other white supremacists. They are our friends!

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5 users have voted.

I'm not sure about all those precedents you cite and how much they matter. This R senate acting as a majority of the body, can pretty much set what rules they want with just 51 votes.

There is also the role of the presiding officer, CJ Roberts. He can also set rules re evidence. But it's my understanding his ruling could be overridden by a majority of senators.

I believe the vote on whether to admit new witnesses and documents occurs later this week, or after all the Rs have made their opening statements and after the Q&A session.

(On your comment about the tape, there is nothing compelling the senators to mirror the rules of evidence In criminal trials, as this is not one of those. As I recall, in the Clinton impeachment the rules of evidence were more relaxed.)

So far Ds have been rather quiet about enlisting Roberts in the rule-setting process. They should be more assertive. Otherwise his role is reduced to hitting the opening and closing gavel. I don't think this was the entire role envisioned by the Founders.

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Bollox Ref's picture

that has such a well-telegraphed, foregone conclusion.

Farce. Needs Oscar Wilde's way with words/direction for amusement purposes.

(Edited)

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12 users have voted.

Gëzuar!!
from a reasonably stable genius.

snoopydawg's picture

Great article on how "Ukraine meddled in the election against Trump" has not been debunked.

Lots of websites wrote about this back before Trump became president, but now we're being told that it was not true. The little black book that had Manafort's dirty deeds in it was never verified to be true. But he's in prison while John Podesta who did many of the same things as Manafort's just got appointed by the DNC curtesy of Obama's BFF Perez. Who said that no one is above the law? Nancy? Adam? Schumer? Yep yep yep. Guess what?

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8 users have voted.

America is a pathetic nation; a fascist state fueled by the greed, malice, and stupidity of her own people.
- strife delivery

travelerxxx's picture

Really, I would hardly know this impeachment thing was going on were it not for C99 and the fact that when I get into my car and turn on the radio, PBS is wall-to-wall with it. None of my neighbors, friends, or associates mention it at all. Hell, my wife hasn't even spoken to me about it.

The reason I know about new Buicks is because I often leave my car's digital radio on channel three of the local PBS radio station (PBS, not Pacifica KPFT) due to them airing XPoNential Radio 24/7. Sometimes when I first turn on the radio, rather than go to channel 3 of the station, it goes to the main PBS feed. I immediately spin the dial to listen to anything but that. Therefor, I hear many ads for automobiles. In fact, that's mostly what I hear. I find the ads less annoying than listening to Schiff or Nadler. It's close, though.

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edg's picture

@travelerxxx

It keeps interrupting my fav daytime TV shows like Price Is Right and Jeopardy. Especially with Jeopardy, I find the preemption unforgivable.

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3 users have voted.

I ask because they know not to ask questions like 'when did you stop beating your wife?', they know better and it's an insult to the intelligence of the general public.
Even those that watch shows like Law and Order at least have that much understanding but it's obvious Dims are playing to the dumbest people out there and if we really had an independent media they would be shamed for it.

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5 users have voted.