Of The Day
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January 11, 1999

Sui Generis
A Situation Without Parallel.

First of all, those of you who know the legal process know that to begin a trial without clearly setting out all of the procedures is extremely odd. Especially, since the most important element in a trial is the selection and calling of witnesses. This trial is underway, on the wing, and we'll see about those pesky witnesses when we get to that bridge. The trial is neither civil nor criminal, but because of the enormous consequences, it should be considered closer to the criminal side of that equation; hence, it should be held by all that the rights of the accused need to have the greatest protection, not the accusers. Given the gravity of this event you would hope that there would be an extremely cautious set of standards for court room conduct and minute-by-minute procedures for all parties to follow. Not so. There is no guaranteed right to counsel or even to cross examine. In regular legal cases the Judge is the final and ultimate arbiter and insures fairness and due process. In this case the majority party can overturn any decision very easily at any time. The Judge becomes a troublesome bystander, nothing more. It is even possible that the House Managers can call their witnesses, but the White House will not be able call rebuttal witnesses. Obviously, the Chief Justice should step up on this count. In this case witnesses will be deposed, which is a civil trial procedure, in a criminal trial that is voluntary. And, amazingly, there is no defined standard of proof here. "Beyond all reasonable doubt," comes quickly to mind. But in civil trials, "a preponderance of evidence," or "clear and convincing evidence," are both far easier to "prove." In this case, each senator may decide for himself or herself what standard to use. The highest standard is "beyond a reasonable doubt."

Then, of course there is no appeal. If the President is convicted, the moment that deciding vote is cast, he is cast out of office and the Vice President is sworn in. end of story.

At this point, we are like the arrow shot into the air. We will fall to earth, but we know not where.

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