As has become crystal clear, “not guilty” is not equivalent to “innocent” in the politics of impeachment.
In a series of rambling, disparaging tweets against Democrats and a litany of sophomoric public statements directed against House managers, President Donald J. Trump continues to demand a speedy trial and dismissal of the impeachment charges currently before the U.S. Senate, where he predicts he will be found innocent through a “not guilty” verdict.
In a legal sense, the president is mistaken.
In his political orbit where facts are as worthless as Confederate currency, Trump will surely utilize his unique style of Orwellian deception to spin the not guilty verdict into actual innocence or complete exoneration.
But, as veteran Supreme Court correspondent Lyle Denniston has written in the Constitution Daily, being found “not guilty” does not mean the charged offender is innocent. It simply means that the prosecuting authority did not prove the offender’s guilty beyond a reasonable doubt.
Constitutional Standard for Impeachment is Murky
Because an impeachment proceeding before the U.S. Senate is not a criminal proceeding, there is no etched in stone standard of proof to determine guilt.
Legal scholars and the parties involved in prior impeachment proceedings have been torn between two escalating standards of proof: preponderance of evidence and reasonable doubt.
The consensus emerging from these historical arguments is that impeachment proceedings should be governed by the traditional “beyond a reasonable doubt” standard utilized in criminal proceedings.
Whether this will be the standard of proof employed in the Trump impeachment trial will be determined by Senate Majority Leader Mitch McConnell and his Republican majority.
It remains unclear the exact role U.S. Supreme Court Chief Justice John Roberts, who is constitutionally required to preside over Senate impeachment proceedings, will play in the Trump impeachment trial, particularly when it comes to what rules of evidence will apply.
The preponderance of evidence standard would require House prosecutors to prove that there is a greater than 50% chance that the Articles of Impeachment are true whereas the higher “beyond a reasonable doubt” standard would require House prosecutors to prove each element of the Articles beyond a reasonable doubt—a term for which most states and the federal government do not have a precise definition. Rather they defer to the broad parameters of doubt based on reason and common sense and not pure speculation as the definition of reasonable doubt.
Regardless of the standard of proof that will be employed in the Trump impeachment proceeding, the innocence of the president will not be an issue in the proceedings. The only issue will be whether the evidence presented by the prosecuting authorities is either sufficient or insufficient upon which to base a political verdict, one that GOP hard-liner Mitch McConnel has long ago suggested is a done deal.
President has Obstructed Fact-Finding Process
From the beginning of the impeachment inquiry before the House of Representatives, President Trump has obstructed the fact-finding process. He ordered all executive level and other government officials not to cooperate with the inquiry by either testifying before designated House committees and/or providing documents needed in the inquiry conducted by those committees.
The only way President Trump can truly convince the American public that he is actually innocent of the two Articles of Impeachment would be to make all the first hand witnesses available to testify at the Senate trial and/or to provide House prosecutors with all the documents they have requested.
The president will not do this. He will stay the course of obstruction.
Thus, his “actual innocence” will be a partisan political issue determined in the present moment of time.
History, however, removed from the present moment, will reach a decision beyond partisan politics—one grounded more in truth based on facts rather than in falsity derived from present political expediency.
President to Use PR and BS to Persuade Public Opinion
In post-conviction proceedings, the state and federal courts, when addressing an “actual innocence” claim, view newly discovered evidence to determine whether it “more likely than not” that the offender is innocent.
President Trump, on the other hand, will use the court of public opinion to morph the term “acquittal” into a factual finding to support his claim actual innocence.
In a legal sense, this bucket would not hold water.
The U.S. Supreme Court has ruled that so long as there was a “preponderance of evidence” presented of guilt at a criminal trial that resulted in a “not guilty” verdict, this so-called “acquittal” can be used by future courts as evidence of criminal propensity when determining an offender’s sentence should they re-offend.
Thus, while a “not guilty” verdict is a “get out of jail free” pass, it is not, nor has it ever been, considered as “actual innocence” of a charged offense.
As we indicated earlier, the immediate court of public opinion—most notably in the 2020 election—will determine President Trump’s “innocence” while the historical record of his presidency will inevitably conclude that he was the most corrupt, lawless, and vilely racist president in American history.