The are many similarities between
the current impeachment process of the President and basic criminal procedure.
That is, in a criminal trial the matter is first presented to a grand jury
and, if they choose to indict, the matter will then be held over for trial.
In the case of President Clinton, the Congressional Judiciary Committee
served as the "grand jury" and now the full Senate will serve as the jury
in a trial.
Impeachment and the $10
That's where the similarity ends.
Arguably, an impeachment of a sitting president is a more grave matter
than the average criminal trial. That being said, it is odd that a person
who is prosecuted for forging a $10 check is given more protection under
the law than President Clinton.
Here are some examples:
It's a strange world indeed. The
average state prosecutor has more burdens placed upon him in obtaining
a conviction against the $10 check forger than those that seek to convict
the President. Ironically, the average state prosecutor can win.
If an grand jury returns an indictment,
it must specifically state what the Defendant is charged with. For example,
an allegation of forgery must state on what date the check was passed,
to whom, and provide a detailed description of the forged negotiable instrument.
In the case of the President, one of the two articles of impeachment alleged
Bill Clinton obstructed justice to "delay, impede, cover up, and conceal
the existence of evidence" related to the Paula Jones case. Notably absent
is the date this allegedly occurred and what evidence was effected. Was
it speaking to Betty Currie, having gifts returned, or something else?
Did all the House representatives know exactly what act they were accusing
the President of?
A grand jury knows that to return
an indictment it must believe that a crime "probably" was committed and
the Defendant "probably" was the person that committed it. In the House
Judiciary committee, there was not even a working standard as to how much
proof was required before an article of impeachment could be passed.
Practically speaking, Clinton is
deprived of a fair prosecutor. Several years ago, a Bridgeport school teacher
was accused of inappropriate conduct with one of his students. I knew the
case would receive enormous media attention and that careers were at stake.
Because of that, I took the extra precaution of meeting the victim face
to face before the case was referred to the grand jury. I had to know she
was telling the truth, and reading a summary of her statement wasn't good
enough. If I was going to ask the grand jury to level a serious charge,
I had to be right. Kenneth Starr has never met Monica Lewinsky.
Now to the Senate trial. Everyone
knows that the burden on the prosecution in a criminal trial is "beyond
a reasonable doubt". The Senate, on the other hand, will be asked to vote
on an impeachment article (that is not specific) and no standard on the
burden of proof will be set forth. This could allow Phil Gramm to vote
to impeach if he believes the evidence "probably" supports the allegation
while Ted Kennedy arbitrarily requires the higher standard of proof beyond
a reasonable doubt. Can Trent Lott vote to convict if he believes the President
"maybe" committed the acts?
Speaking of Senator Trent Lott,
he proposes a two week trial with no witnesses being called. You've
got to be kidding me. What's the old phrase, "let's give him a fair trial
before the hanging"? No determination of fact can be made without observing
and listening to a witness. The same words coming out of different mouths
can have completely opposite degrees of believability. Additionally, even
the $10 check forger referred to above has the right to cross examine any
witness that accuses him of the crime.
At trial, a prosecutor is limited
to proving, and seeking a conviction of, only the charge stated in the
indictment. Because the articles of impeachment are so broad, Clinton's
accuser's will be allowed to bring forth proof that the President "obstructed
justice" in ways that were not considered by the Judiciary Committee. Moreover,
unless we are absolutely certain that the Senate will vote upon the exact
same act of obstruction, the vote is meaningless. (Will Gramm think he
is voting on the persuasion of Betty Currie while Lott believes he is deciding
whether gifts to Lewinsky were illegally returned?)
The President will also not receive
a fair and impartial jury nor will he be entitled to a unanimous verdict.
Nevertheless, at least this can be justified because the Constitution specifically
states that the trial will be before the Senate with only a two thirds
majority needed to convict.
Barry Green is the District Attorney
for the 271st Judicial District.
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