Judgment Askew

So far, the impeachment trial of President Bill Clinton is neither a proper impeachment nor a trial. Unless the senators are able to put together a more solid approach, they will give “trial” a bad name.

When the trial began Thursday, there were few set procedures, creating one of the great jurisprudential messes of all time. When lawyers and clients walk into a jury trial, they are sure of certain procedures. A judge will preside and rule, witnesses are presented, the jury must be impartial and the outcome will not be determined by personal or political considerations. The attorneys on both sides are able to prepare adequately. But even after a vote on procedure Friday, virtually all this was missing in the Senate.

There were far more fundamental lapses. Trial procedures used for hundreds of years are missing. Among the most important of these protections is the presiding judge. The presiding judge controls the admissibility of evidence, the courtroom decorum and, to some extent, the overall fairness. In a real trial, the judge, not the jury or the prosecution team, is in charge.

It is doubtful that when the founders wrote that the chief justice will preside over a trial of impeachment of the president, what they meant was the senators, based on political considerations, would meet, confer and decide on procedural matters during the trial. But that was done all week and will, evidently, continue with a four-person bipartisan group during the trial.

By ignoring the explicit language of this constitutional provision, the senators have already marked this impeachment trial as flawed. These fundamental procedures are used in all the courts in all the states that all the senators represent and yet, last week, there was serious discussion of excluding witnesses. But history, law and practicality all dictate a full and fair trial of impeachment.

It seems odd to this trial lawyer that the very jurors who must determine the guilt or innocence of the president were intruding into the chief justice’s prerogatives. To a trial lawyer, these proposals in Washington seem strange. This is no accident, since the Senate impeachment proceedings are a political event. By contrast, in the most routine personal-injury case, there are accepted procedures that establish truth.

In a jury trial, the issue is: Did he do it? Or more accurately: Has the prosecution proven that he did it? In a political environment, as in Washington, the issue seems to be: Who is he?, Do we like him? Do we have the votes? and, above all, How will this effect me, the senator?

Those of us who deal with jury cases in courts expect to follow certain procedures for the ascertainment of truth. In addition to a strong presiding judge, the full presentation of witnesses, the use of admissible evidence under the rules of evidence ruled on by the judge and care taken to make sure jurors are only deciding guilt or innocence are all routine.

The Greeks originated the concept of trial 2,500 years ago, and there have been modern impeachments since the Parliaments of 1621 and 1624, when Britain revived impeachment. The House of Commons and the House of Lords insisted on their prerogatives in the impeachment of Justice Bacon in 1621. Though fractious, political and divisive, these historical impeachments show trial procedures aimed at getting to the truth. Perhaps we should ask the senators now contemplating the removal of our popularly elected president whether they are interested in allowing the chief justice to rule as the Constitution provides or whether each issue will be decided by a vote of 51 senators?

In the impeachment trial of President Andrew Johnson in 1868, the “radical Republicans” dominated the proceedings and ruled on evidence, excluding much of Johnson’s evidence. While this can be cited as an historical precedent, it should be remembered that Johnson’s impeachment trial is viewed historically as an aberration and a disaster. A proposal, like the one made last week, to determine the guilt or innocence of the president in a trial of impeachment without any witnesses would have been a sort of talking-heads format--a kind of trial-lite. Whatever superficial political appeal it may have, it could not be called a trial in any historical or lawful sense.

No president has been removed from office in the history of this country. It’s not supposed to be easy. The proceedings in the Senate should use time-honored methods of determining the truth deemed appropriate in cases where defendants face death.

First, the evidence presented has to be admissible under the rules of evidence. There is no doubt why the Constitution mandates that the chief justice preside. It was to ensure that a judicial officer knowing the rules of evidence would control admissibility. Here the senators plan on participating in those rulings. Basing a judgment on admissible evidence is no mere technicality. Unreliable or falsified evidence is not admitted. Only direct knowledge of percipient witnesses is allowed--unless there is an exception.

Second, the charge against the defendant has to be precise, it has to be stated and it has to be valid. During the proceedings in the House, there were times when the counsel for the majority seemed to be changing the charge from an accusation of perjury to an accusation of false statement. In a real trial, charges do not change like a badminton cock in a high wind.

Third, in a real trial, great care is taken to make sure jurors are not prejudiced against the defendant. No juror would be allowed to sit who had attacked the defendant in public, earned his or her living by giving speeches against the defendant or would benefit politically by a verdict against the defendant. The issue of senator/juror bias is inherent in an impeachment. But it is exacerbated when the senators take away the chief justice’s role of overseeing the procedures.

The reader can judge the fairness of these proceedings, in part, by how much the senators intrude in rulings. An impeachment trial is called that precisely because the founders understood the protections of jury trials and would not think about removing a president without a full set of those protections to assure the reaching of truth.

By Friday, it was not clear that basic criminal-trial procedures will be used. There should be grave concern that those who so quickly watered down the meaning of high crimes and misdemeanors--i.e., the “what” of these impeachment proceedings--are now considering watering down the “how.” Shouldn’t proper trial proceedings be used by those senators now building the scaffold on which our president could possibly be dispatched?

Much was said last week about the importance of the prerogatives of the Senate. Few factors should override these prerogatives, but surely one is that the public elected this president. This moment in history throws into sharp focus a 300-year-long battle to remove politics from the law. It is true that an impeachment will always have political considerations. But each one of the 100 senators is now personally on trial and the public will decide whether he or she possesses the qualities of leadership necessary to retain a stable government.

The original signatories to the U.S. Constitution included some of the most seasoned and learned trial lawyers in the United States. I have a phantasmagoric vision of one of those signatories, Rufus King of Massachusetts, being interviewed today about an impeachment with no or limited witnesses; where the senators, not the chief justice, make all procedural decisions; and where the charges stem from a personal affair. But it’s not the past that is watching as much as the future. So far, whatever has been done can not be called a trial. Just what it is remains unclear.