In my judicial career, I quickly learned that a technicality is a rule of law that leads to a result displeasing to the speaker.
A technicality often discussed in the impeachment proceedings is what shall be the burden of proof?
The Constitution is silent on such technicalities, which means that whatever the burden of proof is, we cannot even take for granted that the House Managers bear it.
All of the participants have assumed the prosecutors from the House bear the burden of proof. This retired state court judge agrees, if for no other reason that the difficulty of proving something did not happen.
So, exactly what burden do they bear? The common choices in the Anglo-American tradition, skipping over the ones that govern pretrial matters, are:
Preponderance of the evidence — the fact to be proven is shown to be more likely than not, the burden imposed on a plaintiff in a civil case.
Clear and convincing proof — a burden imposed in cases which — while not criminal — have far greater impact than having to pay money damages. The government must meet that burden to hospitalize you against your will or to take away your children.
Beyond a reasonable doubt — the burden in a criminal case, where the penalty ranges from some hours of community service to death.
President Trump is on track to be acquitted unless there were a secret ballot, in which case he would be in grave danger. Since the Republican caucus is publicly committed to acquittal, they always discuss impeachment in criminal law terms because the criminal law burden gives them more rhetorical space to defend what they are going to do anyway.
It seems to me that even though impeachment is only loss of a job to the President, and most Presidents have marketable skills, the consequences are dire for the country, and so we ought to look for a bit more than preponderance of the evidence.
As between beyond a reasonable doubt and clear and convincing proof, you will have to convince me that it makes a difference before I get excited about it. We used to define reasonable doubt for juries here in Texas, but that experiment didn’t last long. I suppose it’s possible for a juror to find the evidence clear and be convinced by it but still harbor a doubt based on a reason. Maybe a juror — but not a senator. The senator has political entanglements that cannot be shuffled on and off at will. No senator is likely to slice the bologna so thinly you can see through it.
Another technicality that came up in the impeachment probably springs from the fact that there’s just no serious question whether Mr. Trump did the acts of which he is accused. So the issue becomes what he intended when he did those things. Professor Alan Dershowitz, when not settling scores with his fellow Harvard faculty on national television, suggested that if Mr. Trump acted for reasons one percent in the national interest and 99 percent in his personal interest, then his conduct could not be impeachable.
Some Republican senators — I assume non-lawyers — -were saying that it’s impossible to prove what was in somebody’s mind unless they testify and tell you and the president won’t testify so we all should go home and have a nice cup of hot chocolate. Spiked with peppermint schnapps.
One way that is wrong is that it’s far from self-evident that the POTUS does not have to testify. Why not? He retains his Fifth Amendment right not to incriminate himself, but surely the Fifth Amendment does not bar all pertinent questions?
Also, the Fifth Amendment, like executive privilege, does not invoke itself. When Mr. Trump and his defenders address the second article of impeachment — obstructing Congress — they invoke executive privilege as if it quashed a subpoena to merely utter the words. The also point out that some of the material sought may be classified.
They line all these objections up as if all you have to do is speak the words, but that’s not how it works. Unlike Barack Obama, George W. Bush, and (most pertinent) Bill Clinton and Richard Nixon, Mr. Trump has not allowed a page of documents or a word of testimony to travel from the executive branch to the legislative branch. Those persons who answered subpoenas did so in defiance of Mr. Trump’s written orders.
When you have an objection, you must raise it each time it arises and produce all information not subject to the objection.
Another complaint has been that you can’t punish the POTUS for claiming his constitutional rights. Two answers.
1. It’s not at all clear that all those are constitutional in nature or that they pertain to an impeachment.
2. Why not infer guilt from failure to produce evidence not subject to privilege in an impeachment?
It is the rule that a judge or jury cannot draw an adverse inference from invocation of a right or privilege in a criminal case. Impeachment is not a criminal case. There is a substantial national interest in getting at the truth, because the purpose of impeachment is not to punish the POTUS — -it’s to protect the United States.
There is some logic backing the idea that if evidence is within your exclusive control and you fail to produce it, then — at least in your opinion — the evidence would not have done your case any good.
This brings us back to proving what is in someone’s mind. We do it every day in criminal cases, which means it has to be shown beyond a reasonable doubt. There an equation that illustrates a simple crime:
Actus reus + mens rea = corpus delicti
Translated from lawyer Latin: a guilty act plus a guilty mind equals the body of the crime.
Mens rea, like burden of proof, occupies a ladder, high to low:
With criminal negligence
None of these four states of mind have anything to do with what you did — just your state of mind when you did it.
When Mr. Trump discharges a firearm on Fifth Avenue and someone is killed, his crime might be anything from capital murder to criminally negligent homicide, depending on what was in his mind. This is regular, work-a-day criminal law. My purpose is not to apply it to impeachment but to show the absurdity of thinking it’s not possible to prove what was in somebody’s mind.
There’s an ancient legal maxim that describes that thinking and much else coming out in Mr. Trump’s trial: Roll up your pants legs because it’s too late to save your shoes.
The reason the Trump defense team is wading through what comes from the north end of a southbound bull is because the defense strategy has changed. At the beginning of the trial, the defense was that he did not do the act. In spite of all cover up, all the time, the House managers have proved their case so clearly and so convincingly that nobody with a three digit IQ has the gall to claim he didn’t shake down the President of Ukraine with taxpayers’ money. So the issue has become what was in his mind when he did it — a technicality.
President Trump, before he became President, was able to understand DNA evidence as a technicality because it led to the exoneration of the Central Park Five, young men convicted of the rape of a jogger. They were aged between 14 and 16 at the time she was attacked. They had in common that none were white.
The only evidence against the boys was their confessions. They were interrogated separately over seven hours without their parents and without lawyers, and as a result of those interrogations, they all incriminated others but not themselves. I repeat, these confessions, collected under conditions that are plainly coercive and in some states would be illegal, were the only evidence of guilt.
When the actual rapist came forward, he knew details of the crime that had not been made public. Then his DNA matched the semen inside the victim. Technicalities.
Mr. Trump spent some $85,000 on four full page ads headed:
Bring Back the Death Penalty;
Bring Back Our Police
Perhaps wishing to protect his investment, Mr. Trump suggested they might have held her down for the rapist. They might have, but “might have” does not meet any of the possible burdens of proof.
Similarly, they might have assaulted one of the other seven victims. Might have, indeed. See the problem?
Their lawsuit against New York City won them $41 million. Even after the DNA test, Mr. Trump thought they deserved to die. I guess the DNA was a $41 million technicality. Or, from The Donald’s point of view, an $85,000 technicality.
It would be some kind of poetic justice if the Senate convicted him on his articles of impeachment based on no more evidence than what convicted the Central Park Five. The President would not face the death penalty, but the basis of his conviction would still be a technicality.