"x x x.
The National Commission on Judicial Discipline and Removal decided not to recommend the adoption of a standard of proof. Nevertheless, its report provides an illuminating discussion of the issue.
Standards of Proof. The Question remains: what is the appropriate standard of proof for Senate impeachment proceedings? The Senate has declined to establish a standard, leaving it a matter for the conscience of each Senator. The disadvantage of this practice is that the respondent judge, the House Managers, and, indeed the
Senators themselves cannot know in advance what standard the Senate will apply.
The Commission considered whether it would be desirable, as a matter of policy, for the Senate to prescribe a standard to guide participants in their preparation for impeachment trials. The Senate could choose from among three established standards: beyond a reasonable doubt, clear and convincing, and preponderance of
evidence.
Senators themselves cannot know in advance what standard the Senate will apply.
The Commission considered whether it would be desirable, as a matter of policy, for the Senate to prescribe a standard to guide participants in their preparation for impeachment trials. The Senate could choose from among three established standards: beyond a reasonable doubt, clear and convincing, and preponderance of
evidence.
Some Senators favor the beyond a reasonable doubt standard because of their concerns about the separation of powers and because impeachment proceedings parallel criminal trials. If the Senate is impeaching based on a prior felony conviction (which requires the jury to find commission of an offense beyond a reasonable doubt) then the Senate should use the same standard, some argue.
Others claim that the beyond a reasonable doubt standard is too deferential to the convicted judge and fails sufficiently to recognize the purpose of impeachment — namely, to defend the community against abuse of power by judges. The purpose of an impeachment proceeding is different from the purpose of a criminal trial, they
argue. In a criminal proceeding, a court may take a defendant’s life, liberty, or property, whereas an impeachment proceeding involves a respondent’s office.
Impeachment is a political proceeding, and in their view the lower standard of “preponderance of the evidence” is therefore the appropriate one.
argue. In a criminal proceeding, a court may take a defendant’s life, liberty, or property, whereas an impeachment proceeding involves a respondent’s office.
Impeachment is a political proceeding, and in their view the lower standard of “preponderance of the evidence” is therefore the appropriate one.
Still others have argued that the appropriate standard of proof is clear and convincing evidence that the respondent has committed an impeachable offense. It gives force to the purpose of remedying judicial abuse of power, while recognizing the competing interests of avoiding unjustified removals and protecting judicial independence.
In the final analysis, the Commission recognizes that each Senator is both judge and juror. As observed by Senate Legal Counsel Michael Davidson, it is the sum of Senators’ separate judgments that mounts to either conviction or acquittal: “any member is entitled to establish the highest, the medium, [or] a lower standard to17govern his or her analysis of the evidence.”
Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky.16
L.J. 707, 719-20 (1988).
Report of the National Commission on Judicial Discipline & Removal at 59-60 (August17 1993).
While the report focuses on the impeachment of judges, similar competing considerations may come into play when executive branch officials are the subjects of an impeachment proceeding. In 1974, with a possible presidential impeachment as an impetus, Professor Charles L. Black, Jr. published his IMPEACHMENT: A HANDBOOK. In it he discusses the conflicting policy considerations of an impeachment in the context of the trial of a President. In response to a rhetorical question as to the “right standard for
judging guilt in an impeachment proceeding,” he replies:
L.J. 707, 719-20 (1988).
Report of the National Commission on Judicial Discipline & Removal at 59-60 (August17 1993).
While the report focuses on the impeachment of judges, similar competing considerations may come into play when executive branch officials are the subjects of an impeachment proceeding. In 1974, with a possible presidential impeachment as an impetus, Professor Charles L. Black, Jr. published his IMPEACHMENT: A HANDBOOK. In it he discusses the conflicting policy considerations of an impeachment in the context of the trial of a President. In response to a rhetorical question as to the “right standard for
judging guilt in an impeachment proceeding,” he replies:
Of course we don’t know the answer with any sureness; we have to work it out for ourselves. As with so many constitutional questions, we have to ask what is reasonable, and the reply here is far from obvious. Removal by conviction on impeachment is a stunning penalty, the ruin of a life. Even more important, it unseats
the person the people have deliberately chosen for the office. The adoption of a lenient standard of proof could mean that this punishment and this frustration of popular will, could occur even though substantial doubt of guilt remained. On the other hand, the high “criminal” standard of proof could mean, in practice, that a man could remain president whom every member of the Senate believed guilty of corruption, just because guilt was not shown “beyond a reasonable doubt.” Neither result is good; law is often like that.
the person the people have deliberately chosen for the office. The adoption of a lenient standard of proof could mean that this punishment and this frustration of popular will, could occur even though substantial doubt of guilt remained. On the other hand, the high “criminal” standard of proof could mean, in practice, that a man could remain president whom every member of the Senate believed guilty of corruption, just because guilt was not shown “beyond a reasonable doubt.” Neither result is good; law is often like that.
Of course each Senator must find his own standard in his own conscience, as advised by reflection. The essential thing is that no part whatever be played by the natural human tendency to think the worst of a person of whom one generally disapproves, and the verbalization of a high standard may serve as a constant reminder
of this. Weighing the factors, I would be sure that one ought not to be satisfied, or anything near satisfied, with the mere preponderance” of an ordinary civil trial, but perhaps must be satisfied with something less than the “beyond a reasonable doubt”
standard of the ordinary criminal trial, in the full literal meaning of that standard.
of this. Weighing the factors, I would be sure that one ought not to be satisfied, or anything near satisfied, with the mere preponderance” of an ordinary civil trial, but perhaps must be satisfied with something less than the “beyond a reasonable doubt”
standard of the ordinary criminal trial, in the full literal meaning of that standard.
“Overwhelming preponderance of the evidence” comes perhaps as close as can to denoting the desired standard. A unique rule, not yet named by law, may find itself, in the terrible seriousness of a great case. Senators have no plainly authoritative guide in this matter, and ought not be censured for the rule they conscientiously choose to
act upon, after thought and counsel, and above all in total awareness of the dangers18 of partisanship or feelings of distaste.
act upon, after thought and counsel, and above all in total awareness of the dangers18 of partisanship or feelings of distaste.
In sum, the Senate has traditionally left the choice of the applicable standard of proof to each individual Senator. While rejecting a motion to make the criminal standard the standard in the Claiborne impeachment, the discussion made clear that it was simply a
decision to allow each member to make that choice and not a repudiation of the standard itself. Individuals might apply that or any other standard of their choice. A walk through history and an examination of the discussions of legal commentators may aid individuals in weighing their choices, but provides no definitive answers. Indeed, such an exercise is perhaps most useful in highlighting basic questions that members will want to ask
themselves when searching for the appropriate standard.
C. Black, Impeachment: A Handbook, at 17-18 (1974). 18
decision to allow each member to make that choice and not a repudiation of the standard itself. Individuals might apply that or any other standard of their choice. A walk through history and an examination of the discussions of legal commentators may aid individuals in weighing their choices, but provides no definitive answers. Indeed, such an exercise is perhaps most useful in highlighting basic questions that members will want to ask
themselves when searching for the appropriate standard.
C. Black, Impeachment: A Handbook, at 17-18 (1974). 18
x x x."
