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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.Published in