The Personal Website of Mark W. Dawson

Impeachment – Senate Trial II

When Americans think of a trial they think of a Judge, Jury, Prosecutor, Defendant, Evidence, and Witnesses. So, therefore, when they hear of an Impeachment Trial they think along these terms. But an impeachment trial is not a traditional trial and does not have a traditional meaning. Traditionally, an Impeachment trial is an examination of the evidence to determine if the accused is guilty and unfit to hold office. This presumes that the evidence has been gathered and prepared for presentation. During the Impeachment trial the “jury” (i.e. the Senators) listens to the “prosecutors” (i.e. the House Managers) presentation of the evidence and witness testimony gathered by the House Impeachment investigation, and the cross-examination by the accused or their representatives of the House managers, to determine if an impeachable offense occurred and is worthy of conviction and removal from office.

Indeed, during the Impeachment Trial of President Clinton Chief Justice Rehnquist ruled that the House Managers could not refer to the Senators as “jurors”, as they were not and could not be jurors in the legal meaning of jurors. Limited written questions from the Senators about the evidence, and limited written questions to the witnesses who had already given testimony to the House Impeachment investigation was permitted, but no new evidence or witness testimony was allowed. This was the agreed-upon process by both the Republican and Democratic in the rules of the impeachment trial of President Clinton. No new testimony or evidence was allowed nor permitted. Hearsay evidence and presumptions of the witnesses were not allowed, as these were not facts but opinions. Therefore, the facts gathered by the House investigation, and nothing but the facts of the House investigation, were presented to the Senate by the House managers. The Senate only consider the facts presented by the House managers, and the cross-examination by the accused or their representatives of the House managers, to determine if an impeachable offense occurred and was worthy of conviction and removal from office.

There is a very good reason for doing an impeachment in this manner. The House of Representatives is the investigative body, and the Senate is the trier of fact. To make the Senate investigators would allow for future impeachments by a partisan House that would utilize impeachment as a political tool to harass a President and the tie-up of the Senate in House Impeachments ad nauseam. This is what the Founding Fathers feared about impeachment, and why they made impeachment a bicameral process. They were concerned that impeachment would be utilized to make a President subservient to the will of Congress, thus destroying the Balance of Power between the Legislative and Executive branches of government. Also, too not delineate the responsibilities of the House and Senate in an impeachment could result in and a Senate investigation that could proceed ad infinitum due to the rules of a Senate investigation.

The heavy lifting of the investigation is the responsibility of the House, while the heavy responsibility of deciding guilt and removal is the responsibility of the Senate. This is known as the balance of powers between the bicameral branches of Congress. The House cannot shift its responsibilities upon the Senate, and the Senate cannot assume the responsibilities of the House. To do so would be to blur the balance of power between the House and Senate. A very dangerous precedent that could do mischief for future Congressional actions. This is why the House should do a full investigation that gathers all the evidence and testimony, from all witnesses both pro and con, that preserves the Due Process and Rule of Law rights of the accused. And this should be done by the House before an Impeachment vote by the House, and the presentation of an Impeachment Resolution to the Senate. This is one of the reasons I believe my article “Impeachment Senate Trial I“ is apropos to the current Impeachment of President Trump.

Therefore, we should let the Senate be the triers of facts, and the House be the investigators and presenters of the facts.