When I was asked to contribute to Rappler (and Newsbreak before this), I understood my role to be an articulator and a clarifier and my task to be a simplifier of things that were legal, political and constitutional for a critical audience and to help others understand what often the law and its processes obscures.
It is often difficult because complex and technical processes often do not lend easily into 800 two-syllable words or less without dangerously oversimplifying things. It becomes more difficult for a stand-alone process like impeachment.
Every impeachment process is unique and distinct, what lawyers love to call sui generis.
While previous experiences with impeachment have been inconclusive–the Estrada trial was cut short by the Arroyo take-over; the Arroyo impeachment attempts never made it past committee; the Davide impeachment attempt was halted by the Supreme Court; and the Gutierrez impeachment was mooted by resignation—we may draw some lessons from the American experience to understand what exactly this process means.
Two American presidents have earned the distinction of being tried by the Senate after having been impeached: the 17th, Andrew Johnson and the 42nd, Bill Clinton.
A third impeachment, that of the 37th, Richard Nixon, never made it to the House plenary, after the House Judiciary Committee had voted to approve 3 articles of impeachment, because he resigned before the vote could be taken.
Both Johnson and Clinton were tried before the Senate: Johnson, on 11 grounds, Clinton, on 3.
In both proceedings, the Senate fully heard the evidence and voted on the sole issue presented: the fitness of the president to stay in office. In both proceedings, the respondent was acquitted.
There are several things I consider significant from the Clinton impeachment trial which may help the Senate, the House prosecutors and even the defense panel in the Corona proceedings.
Only 18 days
First, it took longer for the House Judiciary Committee to consider, discuss, and debate the articles of impeachment than it took the Senate to try Clinton. It took about three months (October to December 1998) for the House, it took only about 18 days for the Senate.
Second, the House Judiciary Committee, in those 3 months, had directed 81 questions to Clinton himself in the course of considering the impeachment articles, which Clinton answered in writing. This was before he was even impeached by the House. These answers were considered in the formulation of the impeachment complaint.
Third, Clinton himself had voluntarily appeared before a Federal Grand Jury (convened by the Special Prosecutor Kenneth Starr), the first president to have done so, and gave testimony on the Monica Lewinsky incident. This was way before any impeachment attempts were made at the House. Again, this testimony was considered in the formulation of the impeachment complaint.
Fourth, Clinton, Lewinsky and other material witnesses were deposed prior to the trial, and these depositions were considered by the Senate during the trial; at one point, the Senate even voted on the issue of whether to call Lewinsky to testify in person (the motion to have her testify in person was defeated and only her videotaped deposition was submitted to the Senate and excerpts were played in public during the trial).
Fifth, the Senate acted as a jury not as a court. Since Clinton was the president, the Chief Justice (then William Rehnquist) presided. Because it was acting as a jury, it understood its role as that of receiving evidence of the facts from which it could then make conclusions of law, i.e., did Clinton violate his oath and should he be removed?
Thus, the plea of Clinton’s counsel, White House Counsel Charles Ruff, during his closing argument was clear and understandable: “There is only one question before you, albeit a difficult one, one that is a question of fact and law and constitutional theory. Would it put at risk the liberties of the people to retain the President in office? Putting aside partisan animus, if you can honestly say that it would not, that those liberties are safe in his hands, then you must vote to acquit.”
There are some lessons we can all learn from the Clinton trial.
First, haste, in this case, does make waste.
The House impeached Renato Corona in one day. No attempt was made to elicit admissions, which would have made the case tighter, from Corona whether by means of a subpoena or simply by written depositions.
In hindsight, had this attempt been made, some of the facts presented in the Articles could have been simplified and stated more simply which would have worked to the prosecution’s advantage as half of the Senators are not lawyers. Lawyers know the value of a prior inconsistent statement and that would have been a valuable weapon in ensuring an airtight complaint.
Second, we keep treating the Senate as a court and not as a jury and because of that we limit the power and authority of the Senate to find the truth, not guilt or innocence. This is understandable because we do not have a jury system and have no experience with one.
What perhaps the Senate could have done instead of simply adopting the US Senate Rules on Impeachment was to, first, understand fully its role in the proceeding and, then, educate the House prosecutors and the respondent on that role.
A typical jury is tasked with finding fact and making a conclusion of law based on that fact; it is a passive instrument, acting only on what is fed to it and what it is instructed to do.
By analogy, the Senate acts like a jury—because it is tasked with finding fact and making conclusions of law based on those facts—but it also does more than a jury because its members may ask questions and vote on incidents.
Third, the Senate, particularly the Senate President, has power to speed up the process by ordering the use of depositions (before the trial proper) and deciding, based on the depositions presented, which witnesses it will hear and which it will no longer hear.
Since it is only concerned with one issue, that of continued fitness for office of the Chief Justice, the Senate may consider—based on all the depositions submitted—which ones are relevant and material to that issue, which ones are sufficient for their purposes and which ones they want to hear more testimony on.
Fourth, the proceedings before the Senate are not criminal in nature. If they were to be considered so, then the entire proceedings would be unconstitutional because criminal jurisdiction is vested only with a court and not with the Senate and the judicial power is vested only in courts.
We should thus stop wasting time invoking the right of an accused to be presumed innocent and the quantum of proof beyond a reasonable doubt. The Senate President, who has shown remarkable leadership, must place these proceedings in perspective and stop considering these proceedings as criminal in nature.
Fifth, if one must characterize these proceedings, I believe the more apt characterization would be to say that it is administrative in nature because the sole issue is continued fitness for the public office, not guilt or innocence; the only result of a conviction by the Senate is removal from the public office and not imprisonment or a fine.
It is also however unlike other administrative cases because the Constitution only allows one entity—the House—to charge and it only allows one entity—the Senate—to try.
Thus, its sui generis nature—one of a kind, unique and distinct.
Characterizing the trial as administrative, by analogy, however frees the Senate from the unnecessary fetter of strict interpretation of technical rules and allows them to simply employ every means to discover the truth behind the charges subject only to the requirements of fairness and due process.
In fact, the best lawyer for the Chief Justice would have been one who litigates to keep a respondent in office because that is precisely what is being decided in this proceeding, nothing else.
Sixth, the characterization of the trial at the Senate being more political rather than judicial, while technically correct, is counter-productive.
The Senate is a political entity, thus it may not be expected to act judicially; this would be similar to the impossibility of making dogs meow. Rather than using the mantra “it’s a political exercise” to justify forays outside the strict application of technical and procedural rules, the Senators, acting as jurors, should focus on their only role—as a truth finder.
Going beyond the stated boundaries of an impeachment ground on the justification that the trial, being political, is not bound by the technical rules of procedure and substantive commands of due process would be both dangerous and unbeneficial; this would simply trigger a suit before the Supreme Court challenging the senators as being biased.
Going beyond what the impeachment grounds state in order to arrive at the truth in relation to the issue of continued suitability for public office, however, is both a responsibility and a duty vested by the Constitution on the senators.
In the end, it’s a matter of understanding the roles thrust on the various actors in these proceedings.
The House has a two-fold role: (1) initiate a complaint on the theory that public trust has been betrayed by a respondent who, in its collective estimation, may no longer be so favored with that trust; and (2) prosecute such officer towards his or her removal from that office.
The Senate also has a two-fold role: (1) receive evidence of the truth to support a finding of unfitness to continue in public office, and (2) decide, based on the facts it obtains, if a removal is warranted.
The Chief Justice, as respondent, has the unenviable role of defending himself and the Constitution and the laws provide him with sufficient protection and remedies to do so, within the context of the nature of the proceedings and the issue being decided.
And we, the people, have a role too: to actively participate through information, education, criticism, and praise to ensure that this constitutional and democratic process of ensuring accountability and seeking truth is not rendered meaningless.
It is, after all, our trust that has been reposed on the Chief Justice and it is the breach of that trust that is at the center of this trial. – Rappler.com