Earlier this week, Senate Majority Leader Mitch McConnell (R-Ky.) added a hastily scrawled amendment to his proposed rules for the Senate impeachment trial of President Donald Trump. At the behest of Sen. Susan Collins (R-Maine), and following howls of outrage from Democrats and Republicans across the spectrum, McConnell struck a portion of his rules package that would have prevented the evidence gathered by the House from being automatically introduced into the Senate record, and instead inserted a provision introducing evidence, but making it “subject to any hearsay, evidentiary, or other objection the President may make.”

Excluding evidence in a Senate impeachment trial because it might fall under the penumbra of “hearsay” in a federal court setting raises numerous complex issues. At the outset it is worth being honest about the quixotic nature of the project: The sole and final arbiter for all of these questions is the Senate itself, so it is impossible to set out some hard and fast precedential law that would have the final word in every case. Art. I Sec. 3 Cl. 6 of the Constitution makes this clear: “The Senate shall have the sole Power to try all Impeachments.” This is a grant of authority to the Senate featuring the word “sole,” which indicates that this authority exists in the Senate and nowhere else. The following two sentences outline the only limits to the Senate’s “sole” power: “The Senate shall be on oath or affirmation, a two-thirds vote is required to convict, and when the President is tried the Chief Justice shall preside.” Nixon v. United States, 506 U.S. 224, 229 (1993).

So, determining which rules should or should not apply during a Senate impeachment trial is a complex errand in which policy considerations must necessarily play a role. Ultimately, it is the Senate–and not the president, the House or even the Supreme Court–that has the power to “try” all impeachments. Some courts have suggested that the word “try” must import a plethora of duties, responsibilities and rights. But impeachment is different. The Constitution specifically says it’s different: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” After a series of decisions granting some limited Due Process rights to the accused in an impeachment trial based in part on this distinction, the Supreme Court found that the word “try” has a broad meaning, and that “we cannot say that the Framers used the word ‘try’ as an implied limitation on the method by which the Senate might proceed in trying impeachments.”

Importantly, the Court found that “the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word ‘try’ in the first sentence.” Implicit in this reasoning is the Court’s decision that Bill of Rights criminal procedural guarantees provide no additional limitations on the impeachment power. Additionally, the Senate, in one of the first impeachment trials ever conducted, considered whether impeachment was a criminal trial and rejected that interpretation.

This discussion leads us to the conclusion that the Article III courts, and the rules propagated to govern the conduct that occurs within a regular courtroom, serve only as examples or suggestions for how to conduct a trial in the only Article I court in existence. They are examples that apply to a different branch of government, doing a different thing, with a different goal and a different possible outcome.

Still, the simple fact that the Senate, sitting as a court of impeachment, is not an Article III court bound by the rules applicable to such courts does not mean that there are no limits at all on what evidence the Senate may consider in an impeachment trial. Indeed, the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials (“Senate Impeachment Rules”) contemplate a number of limitations on the type of evidence that may be presented to the court in Rule VII:

“And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions.”

Standards of relevance and materiality are important, as they function–unlike the hearsay rule–to allow the Senate to delineate the scope of the matter to be determined. As CREW has previously argued, such rules play an important role in helping the fact-finder ascertain the truth of the matter at hand, and thus should be applied in the context of a Senate trial.

The Senate sits for impeachment as a Senate rather than a court of law. This was unequivocally decided during the impeachment of President Andrew Johnson, when the Senate ruled on the question: “During the impeachment of President Johnson, the Senate decided that it sat for impeachment trials as the Senate and not as a court.” This is because the Senate sitting in impeachment serves as both the judge and the jury. The Senate gets to decide what evidence is in order and how to weigh that evidence when deciding whether a president has committed an impeachable offense, whether to remove him, and whether to disqualify him from future office. This is why the Senate and the Chief Justice collectively are historically referred to as “the Court”: the Chief Justice, for purposes of a presidential impeachment, is essentially a member of the Senate (he or she is, in fact, the Presiding Officer), and the Senate generally is both judge and jury of an impeachment trial. This is why senators are permitted to ask questions of witnesses (though not audibly–such questions must be in writing), and why the Senate is permitted to overrule judgments of the Chief Justice.

As the only Article I court considering whether to levy punishments that are explicitly not criminal, the Senate sitting in impeachment must necessarily be guided by different rules than an Article III Court. The Framers tasked the Senate with trying cases that

“are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

Senate precedent suggests that, in fact, the standard for whether evidence should be considered is broader than the standards of an Article III court. This brings us to the hearsay rules.

Specifically, because the ultimate rationale behind many of our evidentiary rules–particularly the rules like hearsay, which aim to prevent a jury from hearing information that might be more prejudicial than probative–become inapplicable in a Senate trial, the Senate has at various times decided to disregard them. That is because the Senate is the body the Framers thought best endowed to sift through facts and reach the truth of the thing. As Alexander Hamilton explained, the Senate as an institution should be made up of

“[t]hose who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.”

During the trial of Judge Robert Archibald, for example, the Senate required that the House managers interrogate a witness about a conversation that the managers had not planned on raising. Senators have even occasionally (and persuasively) argued that the entirety of exclusionary evidentiary law be relaxed because, in part, “Senators are, from beginning to end, judges of law as well as fact, and that they are judges from whom there is no appeal.”

Indeed, it is generally accepted and understood in our courts that a ruling which excludes evidence in a jury case is likely to be a pointless procedure if the excluded evidence nevertheless comes to the attention of the jury. Because of the political nature of the presidential impeachment process, featuring public hearings and investigation in the House and countless stories in the media, much of the evidence that will determine the president’s conviction or exoneration is already in the public domain. There is simply no way to sequester the Senate. This is why the Framers entrusted the Senate with the power to permit evidence as they wish: because exclusionary rules like hearsay will ultimately be useless, the body empowered to stand in judgment must possess the institutional character to sift between facts, and discount evidence that might otherwise be excluded.

“Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent?” Hamilton said, “What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?”

Exclusionary rules like hearsay are not absolute. Generally, a judge will rule on whether the evidence should be admitted based on any number of exceptions written into the rules and considering, ultimately, whether admission would forward the cause of justice. Forwarding the cause of justice is the role of the Senate sitting as a judge; and it is the role of the Senate sitting as a jury to decide whether, or to what degree, to discount certain evidence in pursuit of that cause.

As such, the Senate should give the House the opportunity to formally present, and the president’s defense counsel a fair opportunity to formally rebut, all the serious issues that may impact a senator’s decision in the case–even if these issues are based on hearsay or implicate some other rule of evidence related to protecting a jury that would counsel against their inclusion in a criminal trial.

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