Tuesday, January 14, 2020

From the Boston Globe: What the Constitution actually says about a Senate impeachment trial

- Click here for the article.

While the Constitution is not often specific, when it comes to impeachment, the words are fairly clear, especially on the issues now being debated: Should there be live witnesses at a Senate trial? How impartial should the senators be? Should there be additional evidence in the Senate that was not produced before the House?

Article I, section 3 of the Constitution gives the Senate the “the sole power to try all impeachments.” As noted by the late Charles Black, a leading constitutional law expert who wrote an authoritative book on impeachment, early drafts of the 1787 Constitutional Convention provided for impeachment trials by the Supreme Court; when this was changed to a Senate trial, there was no suggestion that the nature of the proceeding — a trial — would change. “Try” had a specific meaning in the 18th century, not unlike its meaning today — a hearing with live witnesses. “Trial” is defined in Article III, the article outlining the judicial power: “The trial of all crimes, except in Cases of Impeachment, shall be by jury.” The implication is that an impeachment trial is like any other except the decision-maker is the Senate, not a lay jury.