Numerous news sources and others have referred to the “acquittal” of President Trump on the basis of a negative vote at the end of a Senate “trial.” The President himself, along with his legal team and White House staff, have trumpeted this “acquittal.” Even Chief Justice Roberts, when he ended the Senate proceedings, referred to the vote as an acquittal resulting from a trial.

To refer to that vote as an acquittal, however, is inaccurate and misleading, because nothing resembling a Senate “trial” was held after introduction of the House articles of impeachment, as required by the Constitution. As a lawyer on federal matters and a member of the Supreme Court bar, I feel compelled to speak out on this. This is intended to be both a factual and “opinion” piece, without implying any conclusions regarding guilt or innocence. I encourage other members of the federal bar to step forward and comment.

A “trial,” if it is to mean anything must involve at least the opportunity to discover and introduce evidence and allow for challenges to that evidence. The Senate rules, specifically the Senate rules on impeachment (Senate Rule XI), which have been in place since 1986, contain detailed procedures for introduction of evidence in the form of witnesses and documents and procedures for challenging such evidence. On December 31, 2019, however, the Senate approved a resolution that modified those procedures so as to “admit into evidence” (subject to evidentiary objections) materials that had only been submitted by the House, and that would allow Senators to vote to disallow motions “to subpoena witnesses or documents or any other evidentiary motions.” (S. Resol. 483) In other words, as a practical matter, the only “evidence” to be allowed in the Senate trial would be material gathered by the House during its impeachment investigation.

At this point, I believe it is important to summarize the Constitutional provisions for impeachment, since many seem to believe that “impeachment” is the same as an impeachment “trial,” and that it was the responsibility of the House to establish “proof” of a crime. (See for example, Rep. Mike Simpson’s January opinion article in the TVN on why he voted against the articles of impeachment.) This is inaccurate, as many legal scholars have attempted to point out, although the House Managers appeared to concede that the House had “proved” guilt, apparently for strategic/political reasons in the Senate after the Senate majority voted against subpoenaing or introducing new witnesses or documents. (I believe this was a critical error on their part.) The Constitution sets out a two-step process: First, the House investigates, and if a majority believes there is sufficient “evidence” (not necessarily admissible, and allowing hearsay and circumstantial evidence) that a “high crime or misdemeanor” was committed, it specifies the transgression(s) in articles of impeachment. Second, those articles are then delivered to the Senate, which has the responsibility (actually the Constitution says “power”) to hold a trial (or “try”) for innocence or guilt, with conviction only by a two-thirds vote. The key point is that the House investigates by considering all manner of testimony and documentation. Its role is to point the way to who or what must be examined in the Senate in order to determine guilt or innocence. The President, or any other person undergoing impeachment proceedings in the House, is not entitled to due process, public hearings, presence of attorneys, etc. The House impeachment process could be completely secret (with good reason), very similar to grand jury proceedings, but it has not been so usually, apparently due to political considerations (which have proved deleterious to some witnesses already in this instance). Some consider such proceedings to be “unfair,” but they are perfectly legal and established for good reasons. It is then the responsibility of the Senate to examine and consider evidence in a fair way, even if that evidence was not presented in the House. In the case of President Trump, however, the Senate majority decided not to hold anything even minimally resembling a trial. It conducted what was essentially a repeat of the House impeachment proceedings.

So, what could have been done to prevent such a neutering of the Constitutional requirements? Trying to go to court (and presumably eventually to the Supreme Court), would likely have involved a long period of suit in district court, appeal to circuit court, and a petition to the Supreme Court, since the Supreme Court would presumably not accept original jurisdiction. But the Constitution provides for the Chief Justice to “preside” over the Senate trial. Though the meaning of “preside” in this context has never been litigated, it appears to imply that at a minimum the Chief Justice will have the power to rule on the admissibility (e.g., relevance) of evidence and ensure that basic fairness and decorum are preserved. (Although apparently all his rulings could be overruled by a majority of the Senate under its current rules.) The House Managers could have submitted to the Chief Justice a motion of some sort – for example, to dissolve the proceedings on grounds that the resolution and vote against subpoenaing of evidence violated the Constitutional requirement for a trial. I believe they must have considered such a measure, but I think I can understand the bind they were in as a result of the Supreme Court’s 1993 decision in Nixon v. United States (not the decision involving President Richard Nixon). Nixon was a federal district judge who was convicted of lying to a grand jury, and subsequently was impeached and then convicted in the Senate and removed from office. Nixon sought relief in federal district court, then circuit court, and finally the Supreme Court. He argued that the Senate rules on impeachment were invalid because they allowed for witnesses and documents to be examined by a Senate committee which would report the transcripts to the full Senate for further proceedings. Nixon argued that the Constitutional requirement for a trial required that the full Senate hear live witness testimony. A unanimous Court disagreed, holding that the judiciary should not attempt to intervene and rule on the meaning of “try” and the validity of the Senate rules.

Although all the Justices concurred in the ruling on the facts of the Nixon case, Associate Justices Stevens, White, Blackmun, and Souter, indicated reservations and cautions regarding the wording of the opinion and its apparent breadth. While they agreed that the procedures used in the Senate were sufficient enough that the courts should not intervene, they warned that the opinion should not be construed to confer unreviewable discretion on the Senate, since extreme situations could arise. At the same time, however, they expressed the view that it was unlikely, though possible, that the Senate “would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges.” (Justices White and Blackmun.) In short, they were concerned that the majority opinion could be read as conferring carte blanche on the Senate, when the facts of the case before them were more far more limited.

I am sure that presiding Chief Justice Roberts was well aware of the Nixon opinion and the various views expressed therein. I also believe that the same was true of the House Managers. They had a difficult decision to make (if I am right). If they submitted a motion to the Chief Justice to terminate the proceedings, the odds were that he would feel compelled to deny it in order to avoid ruling on such a delicate subject as a single member of the Court; and with an election approaching, it was very unlikely that the House Managers could make a timely presentation to the full Supreme Court. The Chief Justice must have breathed a silent sigh of relief when the House Managers did not put him on the spot. Still, I wonder if it is not now being considered how to pursue the issue of what minimally constitutes a trial. How this could be done, I will not attempt to suggest, but I believe the issue will have to be faced at some time. I would also caution Republicans that their position on the resolution could set an adverse precedent some time in the future if the Senate is controlled by Democrats or another party that has had one of their members impeached.

Mr. Kelly, although largely retired, is a resident of Teton Valley, and still a member of the D.C. Bar and the U.S. Supreme Court Bar, and is admitted to practice in the D.C. Circuit, and the Ninth and Tenth Circuits, among others. He was a trial attorney at the Department of Justice in Washington, DC during his early career, where he staffed a number of grand juries, and as an attorney with the Department of the Interior in D.C. he assisted the Office of the Solicitor General in arguments before the Supreme Court. In later years he served as General Counsel to a boutique regulatory think tank in D.C., even after moving to Teton Valley. In all, he spent 30 years in D.C. and 15 years in Teton Valley, working on federal legislative, regulatory, and litigation matters of all sorts. He continues to write on broad legal topics and prepare amicus briefs. He received his bachelor degree from Georgetown University College, and his J.D. degree cum laude from Northwestern University School of Law.

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