Faculty Blog, Friedman, Hansen

Even Under McConnell’s Rules, the House Can Make Its Case Against Trump

Not surprisingly, Senator Mitch McConnell has announced that President Donald Trump’s impeachment trial will, at least initially, be bare-bones. McConnell has proposed opening statements from the House impeachment managers and lawyers representing the president, with questions from senators through the Chief Justice. At least at the start, there will be no witness testimony—though a majority of the Senate could later vote to allow both testimony and new evidence. Though this format may not be the kind of proceeding the framers of the Constitution contemplated when they assigned to the Senate the responsibility to try impeachments, it still presents the opportunity for the House to make the case against Trump—to the Senate and, more importantly, to the American people.

As noted by Edward Purcell, writing in The Hill, the principles of evidence that apply in federal trials “offer a number of wise and appropriate guides for evaluating evidentiary issues, even though they do not necessarily apply to impeachment trials or control Senate decisions.” Among these principles is the idea that, in criminal cases, prosecutors may introduce evidence of other crimes, wrongs, or acts committed by the defendant, even when those acts are not part of the criminal charges the defendant faces. Uncharged misconduct is admissible to help jurors – in this case, Senators – understand other relevant issues, such as the defendant’s intentions or motivations, and to contextualize the allegations.

The rationale underlying the rule regarding other bad acts evidence is relatively simple. Guilt should not be presumed simply because a defendant engaged in other bad acts, but at the same time evidence of those acts may help to explain the defendant’s state of mind, or to show why jurors should reject an anticipated claim of mistake, alibi, or other defense.

Impeachment, unlike a traditional criminal proceeding, is freighted with political weight. The Senators will serve as jurors in evaluating the case against Trump, but House impeachment managers will be presenting that case as much to the American people as to the members of the Senate. And they will also be memorializing the circumstances of Trump’s impeachment for history. While the two articles of impeachment against the president – abuse of power and obstruction of Congress – focus on Trump’s actions in regard to Ukraine, there is a great deal of uncharged conduct relevant to show why the allegations that the president sought to extort a foreign power to assist his re-election bid, and to obstruct the investigation of that effort, should be seen as true.

The Constitution says little about how impeachment trials should be conducted, and nothing in it specifically precludes the introduction of bad acts evidence. Indeed, the U.S. Supreme Court has confirmed that the Constitution grants the Senate sole discretion to determine how an impeachment trial should unfold. Nothing in the Senate rules governing impeachment trials, or in McConnell’s proposed format for Trump’s impeachment, suggests that the House impeachment managers cannot introduce evidence of Trump’s other bad acts.

The House impeachment managers need only be prepared to explain why other bad acts evidence is relevant to the formal charges against the president. This should not be difficult. For instance, evidence of the President’s prior participation in campaign finance violations serves both to establish a motivation to extract a “favor” from the Ukrainian president to aid him in the next election, and to show why his characterization of the request as innocent should be rejected. Similarly, evidence from the Mueller Report relating to the steps the President took to thwart the special counsel’s investigation demonstrates that the president’s obstruction of the Ukraine investigation was intentional, and not accidental. There are numerous other examples of uncharged conduct that serve to undermine the president’s account of his actions in regard to Ukraine.

None of this other bad acts evidence, moreover, requires witness testimony, and none of it is actually new. All of it exists in the form of official reports and statements, the accuracy of which is not subject to question. All of it can be judiciously incorporated into the House impeachment managers’ opening statements.

If McConnell has his way, the Trump impeachment trial will not be either what the House wants or the American people deserve. But it need not prevent the House impeachment managers from painting a complete picture of Trump’s misdeeds, and to explain why any counternarrative presented by his lawyers is untrue.

Lawrence Friedman teaches constitutional law and Victor Hansen teaches criminal law and procedure at New England Law | Boston.