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.
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.
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