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.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Article I, Section 3, Clauses 6 and 7 of the Constitution
I have a special interest, albeit purely academic,[i] in the trial of the impeachment of President Trump.[ii] Most particularly, I will be fascinated to see whether the Senators argue about the burden of proof. And, if they do, I will be fascinated in the outcome. In this post, I make a prediction.[iii] So, if you are interested, read on.
When I write about the burden of proof, I mean the common understanding of the phrase.[iv] That is, does the evidence satisfy the requisite degree of belief that a proposition of fact is true? To bring it down to the particulars of the impeachment of President Trump, one asks: How convinced must each Senator be in order to vote guilty respecting whether the President abused his powers for personal gain or obstructed the House of Representatives in its effort to investigate the alleged abuse of power?
Much of what I know about the burden of proof regarding the trial of impeachments generally, and as applied to a President, comes from four sources. The first source is the late Professor Ronald Rotunda, who served as Assistant Majority Counsel to the Senate Watergate Committee. I hired the stunningly brilliant Professor to testify in my Nebraska impeachment trial.[v] He taught me a lot even though he was unable to sway the Nebraska Supreme Court.
The next source is a little book written by a genius; I refer to the late Professor Charles Black. See Charles L. Black, Jr., Impeachment: A Handbook, Yale University Press (1974). It is only 67 pages in length, but it has an elegant simplicity to it. Indeed, Black’s discussion of “burden of proof” for impeachments is short, clear and masterful.[vi]
Finally, there are two government publications from the Congressional Research Service that are worthy of consideration. The work by Jared P. Cole & Todd Garvey, Impeachment and the Constitution, Congressional Research Service, (November 20, 2019) is an important resource. The discussion of the burden of proof (or lack thereof) begins at page 50. Relatedly, the now dated but still relevant work of Thomas B. Ripy, Standard of Proof in Senate Impeachment Proceedings, Congressional Research Service (January 7, 1999) takes a deeper dive into the question of the burden of proof.
Although there are various permutations and formulations, it is customarily thought that there are three potential burdens of proof. The first is called the “preponderance of the evidence” or “greater weight” standard. In other words, that standard requires the finder of fact to conclude that it is more likely true than not that the facts support the claim. This is the lowest standard.
The second is called the “clear and convincing” standard. To prove something by clear and convincing evidence, the party alleging the claim must prove it is substantially more likely true than not. This is the medium standard.
The “beyond a reasonable doubt” standard is the third and highest standard and the one typically used in criminal cases, whereas the first two are most often used in the civil context. This third, and most stringent, standard means that there is no other logical explanation that can be derived from the facts other than that the claim is true.
As President Clinton’s lawyers unsuccessfully argued when he was impeached, the Constitution’s phrasing[vii] explicitly referencing some crimes “‘strongly suggests that an impeachment trial is akin to a criminal proceeding and that the beyond-a-reasonable-doubt standard of criminal proceedings should be used.’” Impeachment and the Constitution at 50 (quotation marks, citation and footnote omitted). On the other hand, Black and Rotunda suggested a standard of proof akin to “clear and convincing” should apply since an impeachment does not result in a prison term and, historically, a violation of a criminal law was not required for impeachment in England or in the writings of some of the learned Founders on the subject. Standard of Proof in Senate Impeachment Proceedings at p. 6 (quoting Black); Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Kentucky Law Journal 707, 719 (1987-1988).
So, what do I think? As Professor Black argues, the “preponderance of the evidence” standard is insufficient. A conviction of the President on an impeachment is far more important than whether a driver negligently caused a car wreck and should pay money as a result. Removing a President, after all, amounts to nullifying an election.
On the other hand, the “beyond a reasonable doubt” standard is too high. An impeachment conviction does not result in a prison sentence, and the level of certainty required is rightly something less. So, I stand with Black and Rotunda. The “clear and convincing” standard is the most appropriate. It is proportional to the gravity of the decision.
But who cares what I think? I wrote earlier that I would make a prediction. And so here it is.
“[T]he Senate has traditionally left the choice of the applicable standard of proof to each individual Senator.” Standard of Proof in Senate Impeachment Proceedings, at p. 6. History will repeat itself. Thus, it is virtually certain that some of the 100 men and women who comprise the Senate will come to radically different conclusions on what burden of proof applies. That seems foolish and, far more importantly, confusing to me. But what do I know?
Richard G. Kopf
Senior United States District Judge, Nebraska
[i] As you might imagine, I express no opinion on whether he should be convicted or acquitted. Nor do I express any opinion on whether he should have been impeached.
[ii] A long time ago, I was the lead counsel in the trial of the impeachment of Nebraska’s Attorney General. I have told the story before in some depth. See Richard G. Kopf, A reluctant “prosecutor”, Hercules and the Umpire (September 30, 2014). I don’t intend to rehash it except to say that I ran into the burden-of-proof issue in that case. The Nebraska Supreme Court, serving as a substitute for the Senate in the federal system because Nebraska has a unicameral legislative body, declared that the burden of proof was “beyond a reasonable doubt.”
[iii] But what if the Senate never gets to the issue of burden of proof? It could happen. Counsel representing the President may well assert at the beginning of the proceedings in the Senate a motion to dismiss for failure to assert an impeachable offense like a motion under Federal Rule of Criminal Procedure 12(b)(3)(B)(v) or a motion under Federal Rule of Civil Procedure 12(b)(6). In other words, the President’s counsel would argue that the Articles of Impeachment do not state offenses that warrant the removal of the President.
[iv] The phrase actually includes two components, the burden of production and the burden of persuasion. The burden of production requires the party upon which that burden is imposed to present enough evidence (facts) that the finder of fact could conclude that the allegation is true. The burden of persuasion means that the evidence presented satisfies the requisite degree of belief that a proposition of fact is true. In the American legal system, the burden of production and persuasion is almost always imposed upon the party making the claim. In the case of the impeachment of President Trump, that would mean the House of Representatives must satisfy both types to prevail. To simplify matters, I am going to conflate the two and concentrate on the burden of persuasion.
[vii] Section 4 of Article Two of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”