Law professor and former federal prosecutor explains why a ‘fundamentally deficient’ Senate trial will acquit Trump — but not exonerate him

Law professor and former federal prosecutor explains why a ‘fundamentally deficient’ Senate trial will acquit Trump — but not exonerate him
Official White House Photo by Joyce N. Boghosian/Gage Skidmore

In a tweet posted on December 19, House Speaker Nancy Pelosi explained why she was holding onto the two articles of impeachment that President Donald Trump has been indicted on: she was concerned that a “rogue leader of the Senate,” Mitch McConnell, had no intention of honestly evaluating the evidence against a “rogue president.” It remains to be seen how much longer Pelosi will hold onto the two articles before sending them to the U.S. Senate for a trial, but legal expert and former federal prosecutor Joyce White Vance — in a December 26 article for Time Magazine — explains why an acquittal of Trump in the Senate wouldn’t be the same as an exoneration.

“So far,” Vance writes, “Senate Majority Leader McConnell hasn’t agreed to let House Democrats put on any witnesses, and there’s no word on what, if any, other evidence will be permitted. Yes, the chief justice of the Supreme Court oversees the proceedings, but precedent in this area — most recently from the (Bill) Clinton impeachment — suggests he’ll play a very limited role, more of a custodian than a judge of the law. In any event, his decisions can be overruled by a vote of 51 Senators. The Republicans hold 53 seats in the Senate.”

McConnell has asserted that he will be coordinating with Trump during a Senate trial and that he doesn’t consider himself an “impartial juror” by any means. And Vance, who was a U.S. attorney for the Northern District of Alabama and is now a law professor at the University of Alabama as well as a legal analyst for MSNBC and NBC News, likens this to a defendant coordinating with the foreman of a jury.

Outlining a hypothetical trial for a defendant accused of bank robbery, Vance writes, “As they discuss the trial with the judge, the prosecution learns the usual rules won’t apply. It won’t be able to put on any evidence at trial to support the allegations against the defendant. None of the witnesses it interviewed will be permitted to testify. None of the withheld information will be available.”

Vance quickly adds, “Of course, this could never happen in our criminal justice system. But apparently, it can in the Senate impeachment trial of President Donald John Trump. That’s because under the Constitution, the Senate — or at least the party that holds a majority in it — gets to make decisions about more than just the facts.”

Few political or legal analysts believe that Trump, in a Senate trial, will be convicted by the two-thirds majority needed to remove him from office. And Vance stressed that if Trump’s trial is widely viewed as a joke in which McConnell was allowed to dictate the outcome in advance, an acquittal won’t be the same as an exoneration.

“Trump may be acquitted by the Senate,” Vance asserts, “but if the process is fundamentally deficient — a mockery of a system designed to seek the truth — that acquittal will not exonerate him. No matter what he says, everyone will know it’s not true.”

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