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To: Democratic Caucus From: Senator Joseph Biden Date: January 5, 1999 Re: ‘Arguments in Support of a Summary Impeachment Trial The Senate need not hold a “full blown" trial Senate Precedent In two cases, the Senate has dismissed articles of impeachment without holding a full trial. Senator Blount, who in 1797 became the first person ever impeached, urged three grounds for dismissing the charges against him: (1) he was no longer a member of the Senate (the Senate had already expelled him); (2) his misconduct did not involve his senatorial office and In fact had been committed before he became a Senator; and (3) Senators are not officers in the constitutional sense of that term, and impeachment is limited to "the President, Vice President, and all civil officers." The House vigorously opposed Blount's motion. ‘After debate in secret session, the Senate dismissed the articles of impeachment against Blount, Because the debates were held in secret session, it is not possible to state with certainty which if any ground a majority of senators agreed upon as the basis for dismissing the articles of impeachment. In 1926, the House impeached Judge George English. Although the House exhibited the articles of impeachment in May, the Senate voted to postpone the trial tntil November 10, 1926, when the Senate would otherwise have been adjourned, because the Senate anticipated that proceeding immediately to a full impeachment trial would prevent the Senate from tending to its legislative business. On November 4, +1926, Judge English rasigned and on November 8, the House adopted a resolution urging the Senate not fo proceed to try the articles of impeachment, The Senate voted to dismiss the articles of impeachment. The view expressed by every Senator who spoke, and many did, was that the Senate retained jurisdiction to try the impeachment and convict Judge English, even though he no longer held office, “These two cases demonstrate that the Senate may dismiss articles of impeachment without holding a full trial or taking any evidence. Put another way, the Constitution does not impose on the Senate the duty to hold a trial, In fact, the Senate need not hold a trial even though the House wishes to present evidence and hold a full trial (Blount) and the elements of Jurisdiction are present (English). House Precedent ‘At present, House of Representatives I position that the Senate is required to hold a full proceedings. impeachment Managers are taking the trial with live witnesses and evidentiary The House of Representatives ‘took the opposite position in 1986 ‘when it argued that the Senate should summarily convict Judge Harry Claiborne without taking any evidence or hearing any witnesses, solely on the basis of his criminal conviction. Rep. Henry Hyde made one of the principle arguments for this 1986 position on behalf of the House Managers. (His portion of the Managers’ argument contended that receiving a criminal conviction is itself an impeachable offense, other portions of the argument expanded on Hyde's position and concluded that the Senate should take the Griminal conviction to prove the substantive offenses for which Judge Claiborne had been impeached.) ‘The Senate decided to hold a trial and not to summarily convict Judge Claibome. ‘Then-Representative and House Manager Michael DeWine argued that the Senate should accept the record from the judicial proceedings as substantive evidence in the impeachment trial specifically in order to shorten or truncate the Senate trial, The Senate accepted this argument and admitted all ofthe judicial proceedings into evidence. The House supplemented this documentary record with less than one day of Tivo witness testimony. (Judge Claibome puton six days worth of witnesses in rebuttal.) One might contend that the Claibome case is distinguishable from the trial of President Clinton on the ground that the documentary evidence in the Clinton matter has not been the subject of a judicial trial. This would be a basis on which the President might argue against receiving the evidence, as he and his lawyers had no opportunity to cross examine the witnesses or present additional, conficting evidence. ifthe president does not object, however, tis hard to see how the House Managers could object. That the evidence was not subject to a judicial proceeding demonstrates only that the record will be particularly unfavorable to the President. This is no basis for the prosecution to object. Finally, in the English case discussed above, the House requested (In fact “urged! the Senate to dismiss the articles of impeachment, More Senate Practice n'a number of previous impeachment trials, the Senate has reached the judgment that its constitutional role as sole trier of impeachments does not require it to take new evidence or hear live witness testimony. “This follows from the Senate's consideration of motions for summary disposition in at least three trials (those of Judges Ritter, Claiborne, and Nixon). In.each, the Senate Considered a motion for summary disposition on the merits. In no case did the Senate Seoline to consider a motion for summary disposition as beyond the Senate's authority or as forbidden by the Constitution. The Constitution v. Politics: Grounds for Senate Action Itis often remarked that impeachment is a political process. That is true, and the Framers intended it to be so. Thus, the Constitution actually means to encompass political considerations. Those who argue that political considerations have no place in understanding the Senate's constitutional duty simply fail to understand the Constitution. The Framers did not mean that this political process was to be a partisan process, Instead, they meant for it to be political in the "higher" sense. The process was to be conducted in the way that would best secure the public interest, or in their phrase "the general welfare.” ‘As practical statesmen, the Framers understood that they could not define the impeachment process with specificity. Instead, they built in structural safeguards against partisanship (separating the power to impeach from the power to try impeachments and requiring a significant supermajority for conviction) and otherwise left the House and the Senate the flexibility to act in the way they thought would best secure the public interest. ‘The Senate is thus constitutionally empowered and obligated to take politics, in the higher sense, into account in deciding how to exercise its power to try impeachments. The Senate can thus take into account considerations regarding the public interest that are improper for a judge to take into account. It is constitutionally appropriate for the Senate to-decide what sort of process to follow oni the basis of whether the process will maximize the public interest. In light of the extensive record already compiled, it may be that the benefit of receiving additional evidence or live testimony is not great enough to outweigh the public costs (in terms of national prestige, faith in public institutions, etc.) of such a proceeding. While a judge may not take such considerations into account, the Senate is uniquely competent to make such a balance... This, in part, explains the constitutional decision to place the power to try impeachments in the Senate. The Constitution v. Politics: High Crimes and Misdemeanors ‘The determination of what is a high crime and misdemeanor is a political judgment. Again, this does not refer toa partisan judgment, but to an impartial assessment of the public interest. Specifically, high crimes and misdemeanors refers to actions that gravely injure our constitutional system of government. It is perfectly appropriate for Senators to look to the public in making this determination. First, whether there has been such harm is to a large extent a matter of public opinion. The President's ability to function effectively depends upon whether the public supports his official functioning. Second, the public has ability to understand Whether it, and its system of government, have been gravely harmed. Where it expresses overwhelmingly the view that the President should not be removed from office and expresses this view not ina single poll but repeatedly over the course of a year, this is a constitutionally significant statement. While it may not be determinative, it does not effectuate the Constitution's purposes to refuse to hear the voice of the people. The Senate's Role and Rules ‘The Senate has the sole and full power to try all impeachments. This means it has power not only to act as judge and juror, but also to decide how to proceed and even to take charge of the presentation of evidence and of the cases on behalf of each side. ‘The Senate's rules recognize this role. The Senate Is authorized to ask questions of each witness or of the counsel for either party. Itis authorized to decide whether to call witnesses and which witnesses to subpoena, It is authorized to decide what evidence will be collected and admitted. In all of these matters, the Senate may (even, must) take into account how to best miaximize the public interest and "promote the general welfare."