Recommended by Ricochet Members Created with Sketch. Would Impeachment ‘Hearsay’ Be Rejected by the Senate’s Presiding Officer?

 

While the focus remains on whether the House will vote to impeach President Trump, questions remain on what the Articles of Impeachment would be based. The testimony and transcripts of depositions released thus far suggest that the accusations by Democrats are based on “hearsay” evidence, and none of those testifying to date have expressed any knowledge of an impeachable offense or crime. While I’m not a lawyer, you don’t have to be one to realize that hearsay is generally not admissible in a court of law, with few exceptions.

The Senate’s Procedure and Guidelines for Impeachment Trials — a 100-page, detailed set of rules, procedure, and precedent — along with the Constitution’s impeachment clauses clearly presume the Senate serves as a real jury, with a real presiding judge, the Chief Justice of the US Supreme Court. Senators in an impeachment trial, like real jurors during a criminal trial, are sworn to a specific oath and must remain silent during the House impeachment managers’ presentations. Of course, the Senate being the Senate, there are variations. For example, Senators may speak on behalf of the President (and one can imagine Senate Judiciary Chairman Lindsay Graham, among others upset with the House impeachment proceedings and process doing just that).

But Senate Impeachment Rule 7 stands out. It says the Presiding Officer of the trial — again, the Chief Justice — “may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions…” To the extent that the final Articles of Impeachment adopted by the House are based on hearsay evidence, it would present the opportunity for any Senator to ask the Chair to rule that such evidence is inadmissible. Would the Chief Justice permit “hearsay” as evidence during a Senate trial? Would he impose himself in the process this way? Given the paucity of real evidence of any extortion or bribery, or any crime, it is an interesting question.

Unlike a criminal trial, the Senate reserves the right under its impeachment rules to vote on any ruling and could overturn it with 51 votes. If a majority of the Senate upholds the Chair (hardly assured), then the Impeachment Trial could unravel quickly. Watch this space.

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There are 36 comments.

  1. MichaelKennedy Coolidge

    Lindsay Graham has already said that Hearsay will not be admitted.

    • #1
    • November 18, 2019, at 8:28 AM PST
    • 10 likes
  2. Arahant Member

    *Orders more popcorn and a spare corn popper.*

    Best to lay in supplies now.

    • #2
    • November 18, 2019, at 8:46 AM PST
    • 6 likes
  3. Barfly Member

    Chief Justice Roberts will invent any new legal concept he finds necessary and he will find sufficient reason to disregard any that he finds inconvenient.

    The spectacle in the House is certainly childish and ridiculous. To me it seems more like a classroom mock impeachment run by modern college administrators at some pit like Oberlin. But once the bill makes it to the Senate, McConnell has no choice but to hold a real live trial.

    When Chief Justice Rabbit Roberts manufactures a couple of good excuses, and you know he will, are you sure that 34 Republicans will hold the line? I’m not. I could easily find that many guys who’d I’d trust to belay me on a tough pitch or watch my back at a dodgy ATM, but I wouldn’t go looking for them in the Senate.

    This is a very dangerous time.

    • #3
    • November 18, 2019, at 9:03 AM PST
    • 10 likes
  4. Misthiocracy grudgingly Member

    Are there any Senate historians amongst the Ricochetoisie who can do a deep-dive into the proceedings when federal judges have been impeached, to see if hearsay was ever deemed admissible in the past?

    https://en.wikipedia.org/wiki/Impeachment_in_the_United_States#Formal_federal_impeachment_investigations_and_results

    • #4
    • November 18, 2019, at 9:04 AM PST
    • Like
  5. TBA Coolidge
    TBA

    One of my favorite things about some trials is how at the end, the judge gets to hold forth at length on the perfidy and unprofessionalism of whichever lawyer or witness has offended him and the person(s) on the receiving end get to suck it up in silence. He can even recommend disbarment based on their nonsense IIRC. 

    I wouldn’t mind a very public civics lesson/dress-down from the Chief Justice regarding unethical and partisan misuse of impeachment proceedings. 

    • #5
    • November 18, 2019, at 9:05 AM PST
    • 5 likes
  6. Barfly Member

    Arahant (View Comment):

    *Orders more popcorn and a spare corn popper.*

    Best to lay in supplies now.

    We should start thinking now about enhancing Doc Jay’s old wood chipper with a natural gas powered corn popper attachment.

    • #6
    • November 18, 2019, at 9:06 AM PST
    • 4 likes
  7. Stad Thatcher

    The real question is, “Would Chief Justice Roberts’ animosity of Trump due to Trump’s tweets about him result in decisions and rulings based on hate instead of law?”

    I think it could. We saw how McCain’s hatred of Trump let Obamacare live, so I wouldn’t be surprised. Roberts is only human . . .

    • #7
    • November 18, 2019, at 9:13 AM PST
    • 4 likes
  8. ctlaw Coolidge

    TBA (View Comment):
    I wouldn’t mind a very public civics lesson/dress-down from the Chief Justice regarding unethical and partisan misuse of impeachment proceedings.

    Exactly. And when the House Prosecutors say that the Constitution does not apply, the Senate Republicans should pass a rule allowing the drawing and quartering of House Prosecutors found in contempt of the Senate.

    • #8
    • November 18, 2019, at 9:22 AM PST
    • 5 likes
  9. Barfly Member

    Stad (View Comment):
    Roberts is only human . . .

    Actually, he is a rabbit.

    • #9
    • November 18, 2019, at 9:29 AM PST
    • 3 likes
  10. Addiction Is A Choice Member

    Roberts will probably rule that hearsay is actually a tax, and well within House purview, therefore admissible.

    • #10
    • November 18, 2019, at 9:44 AM PST
    • 14 likes
  11. Susan Quinn Contributor

    TBA (View Comment):
    I wouldn’t mind a very public civics lesson/dress-down from the Chief Justice regarding unethical and partisan misuse of impeachment proceedings. 

    I would love to see this happen, but it’s unlikely. I think the Chief Justice is still overly concerned with perceptions of the Court, and even though he is taking a different role, he’s too worried about perceptions. But I’m big on hoping for miracles. . .

    • #11
    • November 18, 2019, at 9:55 AM PST
    • 2 likes
  12. Fritz Member

    CJ Roberts’ tortured logical backflips in his opinion upholding the Obamacare penalty (unconstitutional) as an exercise of Congress’ taxing powers (constitutional) demonstrates that his jurisprudence, when it really counts, is what my law professors used to condemn as “results-oriented” decisionmaking. Such an approach distorts procedure and degrades the strength of the process side of law in favor of getting the outcome one wants

    If there is an impeachment trial in the Senate, I would therefore expect him to duck tough rulings and to pass on any such questions for a vote to let the Senators under their own rules decide them.If they want to hear hearsay evidence he can rule that it must simply be taken with whatever weight the Senators wish to give it in their deliberations. But I think he is too cautious to make that call alone.

    If there is choice between a hard ruling to be made by him alone, or a process whereby the buck can be passed to a Senate vote, I think he’ll defer every time. This avoids his soiling his skirts, so to speak, for when he returns to the Supreme Court, the only institution he seems to care about. He surely does not want the Congress to follow up with some sort of court packing scheme.

    • #12
    • November 18, 2019, at 10:03 AM PST
    • 7 likes
  13. danok1 Member

    Misthiocracy grudgingly (View Comment):

    Are there any Senate historians amongst the Ricochetoisie who can do a deep-dive into the proceedings when federal judges have been impeached, to see if hearsay was ever deemed admissible in the past?

    https://en.wikipedia.org/wiki/Impeachment_in_the_United_States#Formal_federal_impeachment_investigations_and_results

    I skimmed the document linked in the post. It appears that if the CJ rules on the admissibility of any piece of evidence, his ruling can be appealed to the Senate itself. (Fritz alludes to this in comment #12.) So if Roberts rules that some of the “hearsay” is admissible, that ruling can be appealed to the Senate. I wonder which way the Senate would vote?

    I’m not a lawyer though, and only skimmed the section on evidence. So if someone more knowledgeable (shouldn’t be hard to find such a person) tells me I’m wrong, I will of course defer.

    • #13
    • November 18, 2019, at 10:16 AM PST
    • 2 likes
  14. WillowSpring Member

    Seems like these rules are more in the way of ‘practice and tradition’ and the Constitution has very little to say about the specific practices. The House has already shown that is is willing to totally ignore prior precedent to do what they want.

    I have a fantasy that if the House votes to impeach, the Senate will issue a statement to say something like:

    “The House has clearly spent a lot of thought on their processes in this effort, so we will take advantage of their excellent work and use the same process. This means that the majority will have the right to control which witnesses are called and which hearings will be closed. The minority does not need to be notified in advanced and the majority may decide which minority questions will be disallowed.

    For the closed hearings, the minority will not be able to see transcripts except one at a time in a closed room and monitored by a member of the majority staff. No notes may be taken. ….. ” 

    and so on

     

    I can dream, can’t I?

    • #14
    • November 18, 2019, at 10:58 AM PST
    • 7 likes
  15. MichaelKennedy Coolidge

    More on how these “hearings” have been conducted. Disgraceful, in my opinion.

    https://www.washingtonexaminer.com/opinion/columnists/democrats-dont-want-public-to-know-origins-of-ukraine-probe-like-they-didnt-want-public-to-know-origins-of-russia-probe

    On Saturday, Democrats released the transcript of the Oct. 31 deposition of Tim Morrison, who until recently was the top National Security Council official in charge of Russia and Europe. At the deposition, Republicans asked Morrison about Lt. Col. Alexander Vindman, who served under Morrison in charge of Ukraine. Morrison testified that he had questions about Vindman’s judgment. Specifically, Morrison told the committee, “I had concerns that he did not exercise appropriate judgment as to whom he would say what.”

    Vindman was the first witness to have actually listened to the Trump-Zelensky call. He talked to a number of people about it. Morrison appeared to know something about that. But Schiff did not want to find out.

    “We want to make sure that there is no effort to try to, by process of elimination, identify the whistleblower,” Schiff said to Morrison. “If you think [Republican] questions are designed to get at that information, or may produce that information, I would encourage you to follow your counsel’s advice.”

    A moment later, GOP lawyer Steve Castor asked Morrison in a general sense who Vindman might have discussed the Trump-Zelensky call with. “What types of officials in the course of his duties would he be responsible for providing readouts to?”

    Morrison obviously had a lawyer who is part of the lawfare team.

    • #15
    • November 18, 2019, at 11:04 AM PST
    • 5 likes
  16. Misthiocracy grudgingly Member

    Fritz (View Comment):

    CJ Roberts’ tortured logical backflips in his opinion upholding the Obamacare penalty (unconstitutional) as an exercise of Congress’ taxing powers (constitutional) demonstrates that his jurisprudence, when it really counts, is what my law professors used to condemn as “results-oriented” decisionmaking. Such an approach distorts procedure and degrades the strength of the process side of law in favor of getting the outcome one wants

    If there is an impeachment trial in the Senate, I would therefore expect him to duck tough rulings and to pass on any such questions for a vote to let the Senators under their own rules decide them.If they want to hear hearsay evidence he can rule that it must simply be taken with whatever weight the Senators wish to give it in their deliberations. But I think he is too cautious to make that call alone.

    If there is choice between a hard ruling to be made by him alone, or a process whereby the buck can be passed to a Senate vote, I think he’ll defer every time. This avoids his soiling his skirts, so to speak, for when he returns to the Supreme Court, the only institution he seems to care about. He surely does not want the Congress to follow up with some sort of court packing scheme.

    From the Wikipedia page on Bill Clinton’s Senate trial, it appears that all procedural questions were settled by vote rather than being settled by the CJ. In fact, Chief Justice Rehnquist’s name is barely mentioned in the entire article.

    In the case of Andrew Johnson’s Senate trial, Chief Justice Salmon Chase tried to make procedural decisions on his own, but the Senate would reverse his rulings so he gave up trying.

    Therefore, the historical examples persuade me that the question of whether or not hearsay can be admitted is reserved to the Senate rather than the CJ.

    • #16
    • November 18, 2019, at 12:22 PM PST
    • 5 likes
  17. Rodin Member

    There is a vast difference between what should happen and what will happen. In a truly just and Constitutional world the Senate would vote to reject the Article(s) of Impeachment if they do not allege impeachable offenses (which have yet to be demonstrated) or if they do not observe minimum norms of due process (which they have yet to do). Something could theoretically be revealed before the Article vote in the House that would change the trajectory of this process, but based on the track record to date of everyone involved it seems unlikely to do so.

    But McConnell has signaled this will not be the case. And there are interesting tactical reasons why holding a Senate trial — keeping all the Senators in Washington and mum — would be effective electoral politics (hear that Senators Warren, Harris, Booker and Sanders?). There is also the unlikely possibility that a Senate trial could be used to litigate against the Deep State and former Obama Administration officials. Sadly, that only works in fiction where actions and outcomes are scripted. Real life could reduce such a strategy to an awful mess. The Republicans, after all, are the “stupid Party” and seem incapable of coordinating with Trump in the way that Chuck and Nancy coordinated with Obama.

    Most likely there will be no heroes. The Senate will not vote to remove the President, but the exercise will not be the lesson in civic hygiene that it needs to be. Chief Justice Roberts has proven too susceptible to restraint when boldness was required to best enforce our Constitution. So I do not expect him to do anything dramatic and righteous.

    • #17
    • November 18, 2019, at 12:40 PM PST
    • 6 likes
  18. Susan Quinn Contributor

    Rodin (View Comment):

    There is a vast difference between what should happen and what will happen. In a truly just and Constitutional world the Senate would vote to reject the Article(s) of Impeachment if they do not allege impeachable offenses (which have yet to be demonstrated) or if they do not minimum norms of due process (which they have yet to do). Something could theoretically be revealed before the Article vote in the House that would change the trajectory of this process, but based on the track record to date of everyone involved it seems unlikely to do so.

    But McConnell has signaled this will not be the case. And there are interesting tactical reasons why holding a Senate trial — keeping all the Senators in Washington and mum — would be effective electoral politics (hear that Senators Warren, Harris, Booker and Sanders?). There is also the unlikely possibility that a Senate trial could be used to litigate against the Deep State and former Obama Administration officials. Sadly, that only works in fiction where actions and outcomes are scripted. Real life could reduce such a strategy to an awful mess. The Republicans, after all, are the “stupid Party” and seem incapable of coordinating with Trump in the way that Chuck and Nancy coordinated with Obama.

    Most likely there will be no heroes. The Senate will not vote to remove the President, but the exercise will not be the lesson in civi hygiene that it needs to be. Chief Justice Roberts has proven too susceptible to restraint when boldness was required to best enforce our Constitution. So I do not expect him to do anything dramatic and righteous.

    I just hope that Trump will not send out any tweets while the Senate process is unfolding. Please, Mr. President.

    • #18
    • November 18, 2019, at 12:43 PM PST
    • 3 likes
  19. Fake John/Jane Galt Coolidge

    Anybody that expect the senate to be anything but a three ring cluster F must have forgotten recent SCOTUS events.

    • #19
    • November 18, 2019, at 4:41 PM PST
    • 4 likes
  20. tigerlily Member

    Susan Quinn (View Comment):

    Rodin (View Comment):

    There is a vast difference between what should happen and what will happen. In a truly just and Constitutional world the Senate would vote to reject the Article(s) of Impeachment if they do not allege impeachable offenses (which have yet to be demonstrated) or if they do not minimum norms of due process (which they have yet to do). Something could theoretically be revealed before the Article vote in the House that would change the trajectory of this process, but based on the track record to date of everyone involved it seems unlikely to do so.

    But McConnell has signaled this will not be the case. And there are interesting tactical reasons why holding a Senate trial — keeping all the Senators in Washington and mum — would be effective electoral politics (hear that Senators Warren, Harris, Booker and Sanders?). There is also the unlikely possibility that a Senate trial could be used to litigate against the Deep State and former Obama Administration officials. Sadly, that only works in fiction where actions and outcomes are scripted. Real life could reduce such a strategy to an awful mess. The Republicans, after all, are the “stupid Party” and seem incapable of coordinating with Trump in the way that Chuck and Nancy coordinated with Obama.

    Most likely there will be no heroes. The Senate will not vote to remove the President, but the exercise will not be the lesson in civi hygiene that it needs to be. Chief Justice Roberts has proven too susceptible to restraint when boldness was required to best enforce our Constitution. So I do not expect him to do anything dramatic and righteous.

    I just hope that Trump will not send out any tweets while the Senate process is unfolding. Please, Mr. President.

    The likelihood of that happening is about as close to zero as is possible.

    • #20
    • November 18, 2019, at 5:51 PM PST
    • 1 like
  21. Fake John/Jane Galt Coolidge

    They will do what they must in order to justify removing Trump.

    • #21
    • November 18, 2019, at 6:18 PM PST
    • Like
  22. EJHill Podcaster

    The Clinton “trial” wasn’t anything of the sort. The high-and-mighty of the Senate decided that the salacious nature of the proceedings would sully the chamber if any of the “witnesses” were called to testify in the well of the Senate. So there was no testimony and therefore no cross examination.

     

    • #22
    • November 18, 2019, at 7:04 PM PST
    • 3 likes
  23. Old Bathos Member

    Hard to say what the final bill of impeachment will be. The public believed that “quid pro quo” was Latin for “Biden is the real criminal in all this” so we are currently redefining “bribery” which does make a lot of sense.

    I predict the final charge will be “murder”or something worse. As long as the evidence does not need to be material, relevant, admissible or true, why not?

    “Mr. Chief Justice, I have no first hand knowledge of the President committing murder but most of my colleagues and I think he is the sort who would do something like that. That is why Chairman Schiff recruited me to pretend to step forward and give testimony in this matter.”

    • #23
    • November 18, 2019, at 7:06 PM PST
    • 2 likes
  24. HeavyWater Coolidge

    Republicans and Democrats alike need to set partisanship aside and do what is good for the country, which means removing Trump from office.

    Go Pence !

    • #24
    • November 18, 2019, at 7:15 PM PST
    • Like
  25. Slow on the uptake Thatcher

    Barfly (View Comment):

    Arahant (View Comment):

    *Orders more popcorn and a spare corn popper.*

    Best to lay in supplies now.

    We should start thinking now about enhancing Doc Jay’s old wood chipper with a natural gas powered corn popper attachment.

    Wind powered might be more appropriate. There should be a nice breeze about then.

    • #25
    • November 18, 2019, at 7:26 PM PST
    • 1 like
  26. Steve C. Member

    EJHill (View Comment):

    The Clinton “trial” wasn’t anything of the sort. The high-and-mighty of the Senate decided that the salacious nature of the proceedings would sully the chamber if any of the “witnesses” were called to testify in the well of the Senate. So there was no testimony and therefore no cross examination.

     

    If it gets to the Senate, I predict a similar “trial”. 

    • #26
    • November 18, 2019, at 9:03 PM PST
    • Like
  27. E. Kent Golding Member

    Barfly (View Comment):

    Stad (View Comment):
    Roberts is only human . . .

    Actually, he is a rabbit.

    What do you have against rabbits? I would rather have Bugs Bunny as Chief Justice.

    • #27
    • November 19, 2019, at 1:39 AM PST
    • Like
  28. E. Kent Golding Member

    HeavyWater (View Comment):

    Republicans and Democrats alike need to set partisanship aside and do what is good for the country, which means removing Trump from office.

    Go Pence !

    I think removing him from office by impeachment would destroy what is left of American unity and civil society. If he leaves, it needs to be by the ballot box, expiration of his term, or natural causes. We need better calmer leaders in our country, but they need the legitimacy of elections to be effective.

    • #28
    • November 19, 2019, at 1:45 AM PST
    • 5 likes
  29. Arahant Member

    E. Kent Golding (View Comment):
    I think removing him from office by impeachment would destroy what is left of American unity and civil society. If he leaves, it needs to be by the ballot box, expiration of his term, or natural causes. We need better calmer leaders in our country, but they need the legitimacy of elections to be effective.

    Amen to that. Removal from office is pretty much a guaranteed way to cause a civil war.

    • #29
    • November 19, 2019, at 3:32 AM PST
    • 4 likes
  30. Bucknelldad Coolidge
    Bucknelldad Post author

    MichaelKennedy (View Comment):

    Lindsay Graham has already said that Hearsay will not be admitted.

    Yes, but that’s not his call – Chief Justice John Roberts will decide. Perhaps Sen. Graham has already had a conversation with Chief Justice, so he may know something.

     

    • #30
    • November 19, 2019, at 6:12 AM PST
    • 1 like