How Trump's impeachment trial would differ from a criminal one

Published Dec 31, 2019

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U.S. President Donald Trump on December 19

became the third U.S. president to be impeached when the

Democratic-controlled House of Representatives voted to charge

him with abuse of power and obstruction of Congress. The

Republican-controlled Senate is due to weigh these charges in a

trial in January.

In the unlikely event he is found guilty, Trump would be

removed from office.

Trump and his Republican allies have attacked the

impeachment effort as illegitimate, invoking concepts like "due

process" and "hearsay" that are commonly associated with

criminal cases.

While U.S. senators will serve as jurors, legal experts say

an impeachment trial will look fundamentally different from a

U.S. criminal proceeding. Here are the reasons why.

HOW DOES AN IMPEACHMENT TRIAL WORK?

In an impeachment probe, the House functions like a

prosecutor's office. If the chamber charges a president with

committing impeachable offenses, a group of House members

presents evidence of wrongdoing during a trial before the

Senate, which acts as a jury in deciding whether the president

should be removed from office.

Historically, presidents facing impeachment trials have been

granted some protections like what defendants receive in

criminal cases, such as the right to have a lawyer present and

request witness testimony. But legal experts say impeachment

proceedings were never intended to be conducted like criminal

cases.

In a 1974 report, the House Judiciary Committee said

impeachment was a remedial process, rather than punitive one.

"Impeachment and the criminal law serve fundamentally

different purposes," the report stated. "The purpose of

impeachment is not personal punishment; its function is

primarily to maintain constitutional government."

DO SENATORS NEED TO BE IMPARTIAL?

U.S. judges are required to ensure that jurors are fair and

do not prejudge a case.

Similarly, under the U.S. Constitution and Senate rules,

senators take an oath and swear they will be impartial.

But as a practical matter, senators can declare their

allegiance before trial and cannot be disqualified for bias,

said Frank Bowman, an impeachment scholar at the University of

Missouri School of Law.

"You can imagine what a mess the trial would be if

disqualification motions would be entertained. Everybody would

be moving to disqualify everybody, and then the question would

be what body decides such a motion," Bowman said.

IS HEARSAY EVIDENCE ALLOWED?

U.S. law restricts what evidence is admissible in a criminal

case. The complex rules limit the use of "hearsay," or

secondhand information.

Such evidentiary rules do not apply to impeachment.

Republican lawmakers have criticized the House's impeachment

probe as a political exercise based on hearsay. They say

witnesses like former U.S. Ambassador to Ukraine Marie

Yovanovitch, who testified at House hearings, never spoke

directly to Trump and therefore lack credibility.

U.S. Chief Justice John Roberts could conceivably block

evidence from being used in the Senate trial on the grounds that

it is irrelevant or hearsay, but such a determination could be

overturned by a majority vote of the Senate, legal experts said.

Roberts does not want to be seen as partisan, so he will

likely "tread very carefully" and let senators make important

decisions, Bowman said.

WHAT IS THE STANDARD OF PROOF?

Jurors in criminal cases are instructed not to convict a

defendant unless there is proof of guilt beyond a reasonable

doubt.

There is no formal standard of proof in impeachment

proceedings, said Jessica Levinson, a professor at Loyola Law

School in Los Angeles.

"One would think there is an answer to this basic procedural

question, but there is not," Levinson said.

Jurors in criminal cases are asked to make factual

determinations, Bowman said. Senators, on the other hand, are

making both factual determinations and political judgments,

making it difficult to set a standard of proof, Bowman said.

HOW MANY SENATORS MUST VOTE TO CONVICT?

Under the U.S. Constitution, a two-thirds vote of the Senate

is required to convict the president. That differs from most

criminal trials, where juries must reach a unanimous verdict. 

Reuters

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