The Impeachment of Donald John Trump

OPINION

It has come to my attention through sporadic viewing of the subject proceedings that the procedure being followed in the Senate is a disaster. Yes, it is a political process, or so I’ve heard, but it should have some rules grounded in what has been shown to work. American jurisprudence over time has developed rules of procedure which serve to afford the litigants fair and efficient trials. The Constitution provides very little detail on how to conduct an impeachment trial. Article I, Section 3, paragraph 6 states: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” That’s it.  Left to its creative minds, and I use “creative” somewhat derisively, the Senate has chosen to set aside many of the Federal rules of trial. One of the more important, and bedrock of U. S. jurisprudence, is the Federal Rules of Evidence. Federal Rules of Evidence are comprised of over 60 Rules numbered101 through 1102, which stipulate how to determine what is admissible and what is not¹. The judge in a trial has the sole responsibility to apply these rules to allow admissible evidence and deny inadmissible evidence. The jury is not allowed to hear inadmissible evidence, and for good reason. To be fair to both parties in a trial, the minds of the jurors should not be corrupted by hearsay, speculation and opinion. Sharing of inadmissible evidence is grounds for a mistrial.

By conducting the impeachment trial of President Trump with no application of evidentiary rules, the first two weeks of the trial are at best a waste of time, and worse, a serious obstacle to justice.  Weeks are being given to what is classically called “opening statements” wherein each side states a summary of what will be proven. Opening statements are generally an hour or two, or at most a day, for each side. Opening statements are not evidence. But in this impeachment trial, opening statements are being given as though they are presentations of evidence. They are not. Chief Justice Roberts, who should be enforcing rules of evidence, isn’t. He is just acting as moderator, and doing nothing a judge normally does. The most I’ve seen him do is admonish litigants to watch their language. Really? As acting, he has little to no value in the process.

Impeachment is arguably the most important trial which can be conducted in this country. Why then shouldn’t it be conducted most formally? I submit that omniscient though they make think themselves to be, many if not most Senators left to their biases and constituent pressures have a difficult time discerning evidence of fact from opinion. This is a great disservice to the defendant and the country. I say the Senate Majority Leader and the Chief Justice are equally culpable in the problem. The country deserves better.

References:

        Federal Rules of Evidence https://www.law.cornell.edu/rules/fre