DEAR NGO PANIC-WALLAHS:

Impeachment process identical to US Senate process

Dr Kamal Wickremasinghe

Dr Kamal Wickremasinghe

Even the most ardent supporters of the CJ, including the NGO-wallahs do not appear to want to draw attention to the specifics of her alleged misbehaviour, but rely on the charge she did not receive a ‘fair trial’. In support of their position, they seem to turn, in an extremely vague manner, to the US Constitution and impeachment practice in the US.

A careful examination of the language of the US Constitution,impeachment debates in the US Senate, and enlightened discussion on the subject by US Constitutional law experts would have showed them that none of these sources support the use of their particular “standard of proof”they insist should be applied in such trials.

At best, the US constitutional provisions concerning the power of impeachment provide only indirect guidance in analysing the question of what standard of proof is, or should be, applicable to Senate impeachment trials: Article I (Sec. 2, clause 5)confers on the House of Representatives “the sole Power of Impeachment” and the Senate the Power to “try” all Impeachments; Sec. 3, clauses 5 and 6 prescribe that Judgment in Cases of Impeachment shall not extend further than removal from Office and disqualification to hold and enjoy any Office of honour, Trust or Profit,but the convicted Party shall be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article 2 of the Constitution pronounces that: “The President, Vice President, and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours.” Article 3 provides that, “The trial of all Crimes “except Impeachment”, shall be by Jury....” (Emphasis added).

As the above quotes show, these constitutional provisions are silent on the standards of proof to be applied during impeachment trials, but significantly limit the consequences of a Senate impeachment trial to removal from office and disqualification from holding office in the future, explicitly preserving the option for a subsequent criminal trial in the courts.

The Watergate complex in Washington, D.C.

In doing so, the Framers have expressly rejected some elements of criminal law of the English impeachment model they borrowed, such as criminal punishment including forfeitures of life, property and liberty. Historically, the US Senate has rejected the analogy of impeachment trial to a criminal proceeding;This issue becomes central to the discussion on the degree of standard of proof needed in impeachment trials.

Criminal proceeding

The position that proof beyond a reasonable doubt is required has been advanced, as to be expected, by defendants in impeachment proceedings. Their argument is usually based on the use of words in the Constitution such as “try,” “convicted” and “conviction”, to draw a parallel between impeachment and a criminal proceeding where the standard of proof required is “beyond a reasonable doubt”. This position was enunciated in the Minority Views contained in the Report of the House Judiciary Committee on the impeachment proceedings against President Nixon.

The House Managers who present the case for impeachment have consistently disagreed with this view and have applied the lower civil standard of proof of “preponderance of the evidence”.

The debate and vote in the 1986 impeachment case of the district court judge Harry Claiborne for tax evasion provides the most recent as well as thorough discussion on the standard of evidence to be used in impeachment cases: in the Senate trial, Claiborne’s attorneys filed a motion to designate beyond a reasonable doubt as the applicable standard for the Senate in reaching its determination. They argued that an impeachment trial was in the nature of a criminal proceeding,with grave consequences for the defendant, and required the prosecutors to be held to the highest standard of proof in all criminal trials, beyond a reasonable doubt.

The response of the House Managers in opposition to the Claiborne motion noted that the reasonable doubt standard was designed to protect criminal defendants who risked “forfeitures of life, liberty and property”, citing Brinegar v. United States, 338 U.S. 160, 174 (1949). Such a standard was inappropriate, they maintained, because of the nature of the impeachment and the trial process.

Following the minority (opposition) initiated floor debate on the motion it was concluded, inter alia, that 1. the Senate had never adopted such a standard of proof; 2) that historically, the Senate had allowed each member to exercise personal judgment in these cases and 3)that the proceeding was not a criminal trial and use of the criminal standard was inappropriate where the public interest in removing corrupt officials was a significant factor.

Constitutional requirements

The Senate refused to impose the reasonable doubt rule as the standard in the Claiborne case, by a vote of 75-17, and the Presiding Officer left individual members of the Senate free to apply a standard of their choice.

The essence of the Senate’s winning argument was that a criminal standard of proof was not required in impeachment trials since criminal sanctions could not be imposed. They also contended that the criminal standard was inappropriate in an impeachment because it is a proceeding where the public interest weighed more heavily than the interests of the individual defendant, which were adequately protected by the constitutional requirements of the parliamentary process.

Richard Nixon

Bill Clinton

They recommended a “preponderance of evidence” standard to ascertain whether Judge Claiborne intentionally filed a false tax return.

The issue was revisited during discussions at the organisational meeting of the1989 Senate Impeachment Trial Committee against District Judge Alcee Hastings, Florida's first black federal trial judge, for engaging in a "corrupt conspiracy" to extort a $150,000 bribe in a case before him. He had been acquitted of the crime by a jury.

In response to Senator Joe Lieberman’s request for help in understanding guidance the common law of American impeachment provided as to the “threshold the evidence has to cross for us to make a judgment of guilt or innocence against this judge”, Senator Warren Rudman replied: “I think it is going to be whatever you apply to it. I think it is what everybody decides for themselves.”

The Senate voted 69 to 26, five votes more than needed,to impeach Hastings on the basis of an alleged criminal offence he was found not guilty of by a jury. The Senate impeachment of Hastings,stripping him of his lifetime, $ 89,500-a-year position, clearly shows that the standard of proof for the US Senate impeachment process is lower than a beyond reasonable doubt. Beneath the surface of the vote to impeach would have been the Senate suspicions that the courts always looked after their own!

Watergate scandal

Some academic commentators have urged the adoption of a middle ground between the usual civil standard and the criminal standard of proof in impeachment trials: Professor Ronald D. Rotunda, Professor of Constitutional law at Chapman University School of Law who served in the investigative team of the Watergate scandal,and was advisor to Kenneth Starr during the unsuccessful Clinton impeachment, wrote in “An Essay on the Constitutional Parameters of Federal Impeachment, (L.J. 707, 719-20,1988) that the appropriate standard of proof should be “clear and convincing evidence”, defined as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegation sought to be established.”

The US Senate has declined to establish an evidentiary standard, leaving it a matter for the conscience of each Senator, from among three established standards: beyond a reasonable doubt, clear and convincing, and preponderance of evidence. In the final analysis, the US practice recognises that each Senator is both judge and juror.

Parliamentary Select Committee

The US Senate position is founded on the fundamental differences between the purposes of an impeachment proceeding and a criminal trial: the purpose of impeachment is to defend the community against abuse of power by judges, and unlike in a criminal proceeding, it only involves removing a respondent from office, without consequence on life, liberty, or property.

Impeachment is essentially a political proceeding, designed to safeguard the reign of public interest in a democratic society and therefore the lower standard of “preponderance of the evidence” is the appropriate standard.

The beyond a reasonable doubt standard is too deferential to the judge and is unfair to the public in that in practice, a person whom most citizens believe would be guilty of corruption could remain on the Bench of the Supreme Court, just because guilt was not shown “beyond a reasonable doubt.”

In sum, the US Senate has traditionally left the choice of the applicable standard of proof to each individual Senator. The Senate overwhelmingly rejected a motion to make the criminal standard the standard in the Claiborne impeachment in 1986. The current standard is that each individual senator applies evidentiary standard of their choice.

The consideration by the Parliamentary Select Committee (PSC) in our case would not have been any different and the case of the CJ’s defenders is not supported by precedence in their jurisdiction of choice, the US.

It appears that the CJ’s legal team have been clutching at straws.