Impeachment Trials after Trump: More Trial and Less Politics

62 Pages Posted: 26 May 2021

See all articles by Paul J. Zwier

Paul J. Zwier

Emory University School of Law

Date Written: May 20, 2021

Abstract

Many historians treated the impeachment trials of US Presidents in the Senate both as a trial and at the same time they insisted that the trial was a political proceeding. It was political since the Senate determines for itself the meaning given to what will constitute a “high crime and misdemeanor.” Yet, it was still a trial because, like jurors in criminal trials, the Senators take an oath to try the President fairly. Presumably this at least means that Senators are finally responsible to their constituents for making factual findings that support whether a President has committed a “high crime and misdemeanor.” While conducting a political trial has always been a difficult balancing act for the world’s “most famous deliberative body,” following the two Trump impeachment trials, the Senate’s processes for impeachment are now in shambles, and its integrity has been substantially damaged. The Senate impeachment process has always been a hybrid proceeding that has both political and adjudicatory characteristics. It is time now between impeachments, and before any mid-term take over by the Republicans that may give rise to new impeachment articles against Biden, for the Senate to clarify its trial procedures and to define its jurisdictional scope. It should to set up rules that it can apply going forward concerning 1) who will preside (regardless of the timing of the Presidential impeachment), 2) the judicial role the presiding officer will play in the trial, 3) the rules the presiding officer will apply for deciding questions of evidence and witnesses, and 4) the ethical rules prescribing conduct of counsel. Clarifying these processes should go a long way in resetting the Senate’s balance between politics and an adjudicatory aspect of the proceeding. In doing so it will increase the integrity of it process, and better conform the Senate to its intended Constitutional role.

Keywords: President Trump, Senate Rule for Impeachment, Judicial Role for Chief Justice, Rule of Evidence

Suggested Citation

Zwier, Paul J., Impeachment Trials after Trump: More Trial and Less Politics (May 20, 2021). Available at SSRN: https://ssrn.com/abstract=3850399 or http://dx.doi.org/10.2139/ssrn.3850399

Paul J. Zwier (Contact Author)

Emory University School of Law ( email )

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