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Cardin: If the Senate Impeachment Trial Does Not Look Like a Real Judicial Trial, Is it Valid?

January 29, 2020

“If the results are to be valid, the process must be.”


WASHINGTON – U.S. Senator Ben Cardin (D-Md.) will question the constitutional validity of the Senate impeachment trial of President Donald Trump, if it includes no witnesses or new evidence submitted for review. Article I, Section 3 of the U.S. Constitution gives the Senate the “sole Power to try all Impeachments.” Supreme Court Justice Byron White, in a concurring opinion in Nixon v. United States (1993), found that the Framers of the U.S. Constitution clearly intended that “the Senate should conduct its proceeding in a manner somewhat resembling a judicial proceeding.”

Senator Cardin: “As I have been expressing since the beginning of this trial, in order to have a fair trial, you need to hear from witnesses; you need to see the documents. There has been resistance by the Republicans – and I quite frankly don’t understand why. The public understands that a trial anywhere in the United States of America includes evidence and witnesses. In fact, a new Quinnipiac University poll shows that 75 percent of those polled believe the Senate trial should include witnesses.

Building on Justice White’s concurring opinion, former prosecutor Paul Savoy writes, “The impeachment oath, which requires senators to ‘do impartial justice,’ is not a quaint ritual to be performed with a wink and a nod, but a procedure required by the Constitution because the Framers intended the impeachment proceeding to be run much like a judicial trial. Senators are thus constitutionally bound to follow what Justice White described as ‘a set of minimal procedures.’”

Senator Cardin added: “The Framers of our Constitution thought it unimaginable that a Senate impeachment trial wouldn’t look like a real judicial trial. They would be astounded at what we have done so far. We have not established the record that we should have, and we do not meet the test that Justice White set out for a reasonable trial. The Senate must correct itself and allow evidence to be submitted and for witnesses with direct knowledge of the events to testify under oath, subject to cross examination. It is the right thing to do and, in fact, it is required.

White House deputy counsel Patrick Philbin, in his presentation before the Senate said that “cross-examination in our legal system is regarded as the greatest legal engine ever invented for the discovery of truth.” 

Senator Cardin: “Witnesses could clear the president or point us toward his guilt. Either way, if the results are to be valid, the process must be.”

Senator Cardin intends to pose such a question during the 16-hour question and answer period. The Q&A will precede a vote on whether or not to call on individuals including former National Security Adviser John Bolton, Acting White House Chief of Staff Mick Mulvaney, and others, to testify in the Senate “trial.”

For additional legal background, please see here.

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