The Articles of Impeachment, the Burden of Proof, and Propensity Evidence

by Michael C. Dorf

In the run-up to yesterday's release of proposed articles of impeachment against Donald Trump, commentators speculated about whether the House would issue articles focused entirely on Trump's corrupt actions regarding Ukraine or also include other matters, especially those relating to events described in the Mueller Report. At least three rationales were offered for articles of impeachment going beyond the Ukraine affair.

First, some commentators thought it might be helpful to moderate/freshmen Democrats in swing districts who won their seats by focusing on such pocketbook issues as health insurance to have multiple articles so that they could vote for some and against others. Doing so would ostensibly show to their fence-sitting constituents that they were going along with impeachment reluctantly and out of a sense of duty but were still moderates; that's why they only voted for two of the articles, these Democrats could say. I'm not sure who originated this idea, but it never made much sense to me. Swing voters tend to be relatively low-information voters. It is hard to see that any such voters would oppose impeachment (even if they generally dislike Trump) but be  assuaged that their representative voted for only two out of three (or four or more) articles of impeachment.

Second, other commentators suggested that it was important to include obstruction of justice based on Volume II of the Mueller Report, because obstruction of justice is a crime, whereas the two articles that the House Judiciary Committee produced yesterday--"abuse of power" and "obstruction of Congress"--are not crimes. These commentators acknowledge that an act can amount to treason, bribery, or some other high crime or misdemeanor within the meaning of the Constitution even if it is not a crime as defined by statute. Indeed, all of the law professors who testified last week, including Jonathan Turley, acknowledged that. Nonetheless, I have heard it said that Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment, so that including a criminal charge would head off this argument.

This line of reasoning was naive. If anything is clear by now, it's that Republican apologists for Trump will say whatever is convenient, regardless of its consistency with other things they have said just a few seconds earlier. A charge based on the Mueller Report's well-documented catalogue of obstructive acts would be met with the claim that the Report exonerated Trump. That would be untrue, of course, but Republicans who are willing to say that the Constitution only allows impeachment for statutory offenses are also willing to say that Mueller exonerated Trump, climate change is a hoax, the Earth is flat, or whatever it takes. Articles of impeachment oughtn't to be based on taking away Republican talking points with facts. That's impossible.

Third, some people argued for including charges involving Russian interference with the 2016 election and obstruction of the investigation thereof because the Ukraine Affair is a continuation of that same scheme. This, to my mind, was a fair point. Putin's agents created the conspiracy theory that Ukraine, rather than Russia, interfered with the 2016 election, and the military aid for Ukraine that Trump delayed sending to Ukraine until his scheme was exposed was aimed at combating Russian aggression. Accordingly, including Russia-related charges would have made sense on relevance grounds.

Nonetheless, I trust the political judgment of the Democratic House leadership in proposing two relatively narrow articles of impeachment. And besides, the proposed articles are not all that narrow. In particular, they invoke the Russian connection repeatedly.

The abuse-of-power article charges that Trump pressured Ukraine to announce investigations into "a discredited theory promoted by Russia that Ukraine--rather than Russia--interfered in the 2016 United States Presidential election." The same article charges that Trump's actions regarding Ukraine "were consistent with President Trump's previous invitations of foreign interference in United States elections." The first article thus invokes without specifically relying upon or making charges based on Volume I of the Mueller Report, which recounts substantial evidence of the Trump campaign's eager receipt of Russian help in 2016.

The obstruction-of-Congress article charges that Trump's instructions to executive officials and departments not to comply with congressional subpoenas concludes as follows: "These actions were consistent with President Trump's previous efforts to undermine United States Government investigations into foreign interference in United States elections." The second article thus invokes without specifically relying upon or making charges based on Volume II of the Mueller Report, which recounts substantial evidence of obstruction of justice.

I find it hard to imagine that the respective correspondence between Articles of Impeachment I and II and Volumes I and II of the Mueller Report is purely coincidental. It strikes me as quite possibly a result of a compromise between those House members who wanted a broader set of articles of impeachment and those who wanted a narrower set. Even if so, however, there is a sensible logic here. Trump cheats and then stonewalls and/or lies to cover up his cheating. The correspondence between the two sets of events thus reflects the fact that they evince the same straightforward pattern and the fact that the Russia and Ukraine affairs are ultimately a single scandal.

That said, one can imagine a legalist feeling uneasy about the reference to but failure to charge based on the matters asserted in the Mueller Report. Before explaining why any such uneasiness is unwarranted, I'll try to make it plausible with an analogy.

Suppose that Jane is on trial for embezzling funds from her employer, the Alpha Company, where Jane worked as an accountant. The prosecution introduces substantial evidence that Jane embezzled from Alpha. But now imagine that the prosecution also seeks to introduce evidence that Jane embezzled from her prior employer, the Beta Company. Jane's lawyer would have a good objection to the Beta evidence. If the case were tried in federal court the objection would be based on Federal Rule of Evidence 404. State courts have similar so-called propensity rules.

The idea of a propensity rule is that a party is not permitted to introduce evidence tending to show that someone has a character to act in a certain way in general and therefore acted that way on a particular occasion. The propensity rule does not exclude so-called modus operandi (m.o.) evidence, where an actor has a kind of signature pattern, but it's fair to say that if abuse of power and obstruction of Congress were crimes, and if Trump were on trial in court for committing those crimes, the Mueller Report evidence would not be admissible as m.o. Cheating and then stonewalling and lying to cover up the cheating are not sufficiently distinctive to constitute m.o.

But of course Trump is not on trial in a criminal court, and neither will he be in the Senate, despite the fact that the Constitution assigns to Senate the sole power to "try" impeachments. A Senate impeachment trial will have some but not all of the elements of a criminal trial, because it serves some but not entirely overlapping purposes.

Most obviously, although the stakes are very high for the country, the President's liberty is not immediately at issue. By the express terms of the Constitution, removal and disqualification from further office holding are the only consequences of Senate conviction. If a future administration were to try Trump for crimes, he would be entitled to the full panoply of procedural protections that the Constitution, statutes, and rules afford criminal defendants. That would include the application of the Rules of Evidence and the requirement of proof beyond a reasonable doubt.

Although the Senate could adopt any particular rules of evidence and a standard of proof that replicate those applicable in criminal cases, there are good reasons not to do so. The key, as I've just noted,  is the difference in the stakes for the defendant. The adage "better ten guilty go free than one innocent be wrongly convicted" reflects a judgment about how to weigh so-called Type 1 errors against Type 2 errors. It's not obviously the right measure even in a criminal case. One might think that the social cost of the crimes the ten commit is greater than the cost of imprisoning more innocents. However, the state is responsible for the injustice of imprisoning innocents in a way that is much more direct than its responsibility for failure to imprison the guilty. And further, allowing the state to cut corners would not necessarily result in more apprehensions of the guilty; it could simply increase the number of innocents wrongly convicted without increasing public safety. In any event, our legal system has come to rest in a place where we have procedures designed to guard especially against wrongful convictions.

What should be the burden of proof in a Senate impeachment trial? Despite calls for a Senate rule adopting a uniform burden of proof, current practice leaves the matter to the discretion of each individual Senator. That can lead to some oddities, like when Senator Arlen Specter attempted to vote "not proved" during the Clinton impeachment, a verdict that exists in Scottish but not U.S. law. Here I won't make an argument for the Senate adopting a uniform burden of proof, much less for any particular burden. I will say that allowing the Senate to remove a President based on some standard less than proof beyond a reasonable doubt (such as clear and convincing evidence or a preponderance of the evidence) is consistent with the Constitution and with the nature of an impeachment trial: it is fair for a Senator to vote to remove a President who probably committed treason, say, or some other high crime or misdemeanor, but as to whom the record doesn't reveal proof beyond a reasonable doubt--especially where the record's gaps are due to the President's own obstruction.

What about the propensity rule? It applies in civil as well as criminal cases, but the justification for it is strongest in criminal cases. Although propensity evidence can be quite probative, there is too great a risk that jurors will give it either too much weight or the wrong kind of weight. They will think something along the following lines: "The defendant is a bad guy, so I don't really care whether he committed the particular crime with which he is charged." The risk is not so much a faulty propensity inference that because defendant committed past crimes he must have committed the act with which he is currently charged (although that is a risk) but that the propensity evidence will lead jurors to make the wrong sort of judgment--a bad guy judgment rather than a criminal act judgment.

Is that a risk in an impeachment trial too? Maybe. In Nixon v. United States, three justices (White, Blackmun, and Souter) opined that the Senate could not convict an impeached officer for being a "bad guy." The other justices did not think that issue justiciable but would likely have agreed if it were. One might therefore worry that propensity evidence arising out of the events described in the Mueller Report will lead the Senate to convict Trump on the ground that he is a bad guy.

Yet a moment's reflection reveals that the concern is misplaced. There is a mountain of well-known evidence in the public record if not in what will become the Senate impeachment trial record that the current president is a racist, a coward, a bully, a liar, an ignoramus, a hypocrite, a narcissist, and a fool--in short a very bad guy. Yet by design, the Constitution entrusts an impeachment trial to the Senate, not to a jury selected for its impartiality. Even more so in the framers' time than in are own, but still very much today, Senators were and are part of the political elite who will invariably be familiar with the president's character. If such Senators are capable of putting aside their longstanding views of the president's character to focus on whether he committed treason, bribery, or other high crimes or misdemeanors--as the Constitution assumes they are--then surely they are capable of the much easier task of setting aside any bad-guy inference that propensity evidence might engender.