The impeachment in the House was a political debate - not really a legal one. The rules that apply in a regular trial did not apply there. Is the same true of the Senate trial or is that more of a legal process?

Either way, what are the ramifications of this?

  • There are three kinds of trial: criminal, civil and political. All are trials that follow (their own) legal process. – Caleth Jan 29 '20 at 11:17
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    @Caleth Canonical trial? Court-martial? Your statement seems too categorical, but idk, ianal. – Oxy Jan 29 '20 at 11:21
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    @Oxy good point; "there a various kinds of trial, including criminal, civil and political" – Caleth Jan 29 '20 at 11:27
  • Did you cross-post this over at Legal? ;-) – Peter - Reinstate Monica Jan 29 '20 at 16:06
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    The question is unclear. It is certainly "legal" (lawful). But you are probably asking whether the procedure falls under the umbrella of jurisprudence or under the umbrella of law-making. The answer to that would be "jurisprudence", see my comment under Ben's answer. Like many lawsuits, especially those at higher courts, it also has a (rather strong) political side to it; but the essence of the impeachment trial (!) is the allegation that the President broke the law (not necessary statutory law!) and will face consequences. – Peter - Reinstate Monica Jan 29 '20 at 16:15

In UK, impeachment process became part of the Common Law. However, in the US constitution, founding fathers made some explicit decisions to do things differently. Cornell Law School provides some annotations on the US constitutional history here.

In UK, conviction on an impeachment has resulted in fine, imprisonment, and even execution (as in the case of William Laud). In contrast, under the US Constitution, the penalties under of an impeachment cannot extend further than removal from the office. It seems the US founding fathers had a specific purpose here:

Under the U.S. system, someone who has been impeached and removed by the Senate can later be tried and convicted in a separate court of law for the exact same act(s). If the impeachment were tried as a matter of law, this would be impermissible as double-jeopardy under the law.

In terms of the current controversy around Trump's impeachment, it would be unreasonable to expect the Senate trial to be any less political than what happened in the House. However, due to the impeachment rules of the Senate, the debate will all be done in closed session.

  • Answer could use some explanation of why things were done differently for the US. (if that exists) – bobsburner Jan 29 '20 at 12:55
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    @bobsburner: Gladly. At the time the Constitution was being drafted, there was an Impeachment going on in Britain. While the specifics escape me, the American's felt that the impeachment was done for purely political reasons and the impeached person had not done anything "criminal" which is why they put the high crimes and misdemeanors line in (as a guideline) AND why it was limited to removal (so they didn't have a politician in office while standing trial). Additionally, it was a check on Congress as they did not want congress to have the ability to impeach for disliking the officer. – hszmv Jan 29 '20 at 15:28
  • @bobsburner: Basically, the founders wanted congress to do it only for a damn good reason and only as an immediate remedy to remove a suspected criminal from office so he/she could stand trial before the judiciary and nothing else. – hszmv Jan 29 '20 at 15:29
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    The other side of impeachment not being a matter of law is that it is specifically not limited to actions which are crimes. That is, misdemeanors, which in the 18th century meant simply "bad behaviour" rather than its current meaning of a minor legal offense. So an official could be impeached for something - say habitual drunkeness - that wasn't illegal but made it impossible for them to do their job properly. – jamesqf Jan 29 '20 at 17:40
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    The limit of punishment in cases of impeachment to removal/disqualification is important because that means an impeachment can't deprive anyone of "life, liberty, or property". (An officeholder does not "own" his office. The people own it, and lend it to him for a term.) That means the prohibition against doing so without due process does not apply. It is very much a different procedure. – Monty Harder Jan 29 '20 at 18:11

The way the trial is proceeding, it's definitely a political affair, not a legal one. A legal trial would be focused on answering questions such as "did Trump pressure Ukraine to investigate a political rival? If so, does this qualify as an impeachable offense?" Partisanship shouldn't factor, because the question doesn't involve Trump's political party at all. In other words if Trump were to switch from the GOP to the Democrats, the Democrats in the Senate should still vote to impeach him.

In practice, what's happening is (source):

Afterward, Republican senators met behind closed doors to discuss calling witnesses including Bolton, but said as they emerged that there was no resolution on the matter.

To even do this kind of closed-door, Republican-only meeting, they have to be viewing the trial as a partisan affair.

Schumer made a fresh appeal for four Republican senators - the number needed for a majority - to join Democrats in voting to call witnesses. Schumer also indicated Democrats would reject any effort at a so-called witness swap with Republicans.

This indicates the Democrats are also viewing the trial as a political, not legal, affair - in a law-based trial, witnesses would be called if they knew something about the topic being discussed, not as part of a "witness swap" deal.

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    I don't understand your final paragraph. You write that the Democrats view it as political because of the "witness swap", but your quote says they rejected this "witness swap". What is it? – gerrit Jan 29 '20 at 12:52
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    @gerrit the first. They didn't reject the witness swap because they view it as legal, they rejected it because (from the source) The Republicans can call who they want. They have the ability. They have the majority,” Schumer said. – Allure Jan 29 '20 at 12:56
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    You say "a legal trial would be focused on answering questions such as" did Trump do it, and should he be removed for it. Those are precisely the questions that are being decided upon in this trial, but that doesn't make the decisions legal rather than political. The problem is that the second question is not itself a legal question, it's a political one. – Nuclear Hoagie Jan 29 '20 at 15:28
  • "To even do this kind of closed-door, Republican-only meeting, they have to be viewing the trial as a partisan affair" If one assumes that the majority of Republican senators support Trump, then I don't see this as too different from the defendant's counsel meeting behind closed doors to discuss strategy, which is pretty normal. – anaximander Jan 30 '20 at 16:55
  • @anaximander The Senate is the jury, not defending council, in this trial. – Yakk Jan 30 '20 at 18:01

This is an odd question, because it presumes that there is some sort of split between "legal" and "political".

The trial is legal because it is directly constitutional. It is also political, and it was always intended to be. The court of impeachment is designed only to answer a political question: has the officer committed "treason, bribery, and other high crimes and misdemeanors". This may seem like an odd thing to call "political", but first note that these are deliberately undefined legal terms. Hamilton's Federalist Essay 65 essentially lays out the thought-process.

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

Therefore, this cannot be a court of law in the traditional sense. Furthermore, the strictly legal, criminal questions would be answered only by a separate court after an impeachment has taken place. This is also deliberate:

Could the Supreme Court have been relied upon as answering this description? ...

The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative...

The questions before the Senate are:

  1. whether "treason, bribery, and other high crimes and misdemeanors" have taken place (in the minds of the senators), and
  2. whether this merits removal from office.

The only punishment that can be awarded is a political punishment (removal from office), so the question is then, in the first part, factual, and in the second part, political.

None of this is a mistake; all of that is what was intended by the founding fathers and outlined in the documents that have been passed down.

  • "subjects of its jurisdiction" and "court of impeachment" are terms from jurisprudence. The form of the second stage of impeachment resembles a trial with prosecution, defense and a jury (the Senate). It may result in a "conviction" (Article II). This all indicates that the impeachment is a special form of jurisprudence. – Peter - Reinstate Monica Jan 29 '20 at 16:24
  • To look at it another way: one could possibly interpret "political or legal" as being roughly analogous to "legislative or judicial" (where the third branch, executive, is the one on trial). Given that the trial is being conducted in the Senate, and the Senate is of the legislative branch of the US government, the answer would be that this trial is "political", in that sense. – anaximander Jan 30 '20 at 17:00
  • Nice answer! I don't think OP was using "legal" in a sense of constitutionality. Just that 1) there's been a lot of rhetoric along the lines of "if this were a normal trial, you'd do this" with the response being "this isn't a normal legal trial" 2) a lot of analogies talked about how the House process was the "indictment" while the Senate process is the "trial", but if this isn't a "legal" process then these analogies don't really mean much anyways. I've had a lot of confusion along these lines, maybe in a similar way to OP. – Brendan Jan 30 '20 at 18:22

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