Every citizen charged with a crime is entitled to a jury of his/her peers to determine guilt. Innocence is presumed.

Every military member charged with a crime is entitled to a jury, only not of his peers. Certain other rules peculiar to the military also apply. And that member’s innocence is also presumed.

Every President of the United States who has been impeached (indicted) by the House of Representatives for “high crimes and misdemeanors” is entitled to a trial by the Senate. There is no presumption of innocence in either legislative body.

So, with Impeachment, is there a presumption of innocence, and if so, where?

Compare:

In a civilian criminal trial, and I have defended charges in those courts, the jury is composed of adult citizens drawn from the local jurisdiction covering every area of society. In almost every case a finding of “Guilty” must be unanimous. In some states a single holdout juror can force an acquittal, and in others a hung jury, or mistrial, allowing the state to bring the same charges before a new jury.

Hung juries often occur when “the law” as defined by statute does not jibe with the “law” as understood in popular culture.

A good example is the criminal trial of Sen Robert Menendez, who was tried in New Jersey federal court for corruption; i.e., bribery, or unlawfully receiving money or gifts, (a “quid pro quo” as they call it in foreign policy), in exchange for political favors to a citizen. The facts were all there but the jury returned saying they could not arrive at a verdict. A mistrial was declared only Sen Menendez was never retried. Had he been tried in almost any other state, he would likely have been convicted. But to some extent, without intervening hanky-panky, also common in New Jersey, a reasonable person could conclude that a random sampling of jurors in New Jersey may have rendered the same non-verdict inasmuch the people of New Jersey may not have shared the government’s view as to what elements made up the crime of “bribery”.

Food for thought.

In a Military Court Martial, where I have also defended clients, military members can be charged with an array of “crimes” not found in civilian law. For instance, an employee at PG&E in California can tell his boss “Go to hell!” and then “I quit” and storm out the door. He’ll likely still get his last paycheck in the mail. Maybe even get to come back in the next day to clean out his locker.

But in the military, those are two separate crimes, each which could cost him several days in jail. And even if the Army decides to “let him go back to civilian life” that could also take weeks, during which he’d wear a bright jump suit, sleep in a special barracks with other deadbeats, and pick up trash around the post until they march him to the gate and point out the direction of the nearest bus station.

For more serious military offenses, which require formal trial, military members are not entitled to a jury of their peers. Court martial “juries” are made up almost entirely of officers, and a simple majority of those can convict.

And unlike civilian juries drawn from the population at-large, military juries are drawn from a pool of officers that are under the direct command of the same general officer who is bringing the charges. If that sounds just a little prejudicial you’d likely be correct. Every person involved in the trial want to please that same boss, including defense counsels. (I know this because, during the Vietnam War era, I was sometimes asked to defend Air Force, Navy and Marine cases because they did not trust their defense lawyers to go to the mat for them. In the Army at that time, but no longer, over half our JAG Corps were one-termers, 4-years-and-done, so could care less what the CG’s staff thought about us. That’s why we were so good.)

In a Presidential Trial and Conviction none of the above rules of fairness apply.

Any American president can be tried for anything that the House of Representatives chooses to call a crime. Any American president.

Thirteen American presidents have had impeachment resolutions filed against them, beginning with John Tyler. Seven (7) of those have been since Nixon. But EVERY president since Coolidge (Hoover thru Trump) in which the opposition political party controlled the House of Representatives has had an impeachment resolution filed against them.

This means only President Eisenhower has avoided this sort of political theatrics since 1928.

So that part is routine in modern history.

This should give you some sense of the silent power of the American people in this process, for getting to the next step is dicey for politicians. So….as you also know, only two presidents (Andrew Johnson and Bill Clinton) went through the entire process to be actually impeached then face trial in the Senate.

These two men’s cases were vastly different; Johnson escaped by one vote while Clinton escaped without a majority vote, much less the required super-majority 67, on either of his two articles.

Of the two, Clinton was by far the more guilty factually for he had actually lied under oath and did try to obstruct justice with the Starr Investigation. But by 1999 lying was no longer a “crime” the US Senate would ever adjudge to be a crime. Under oath or otherwise. And no Democrat would ever consider “obstruction” to be a crime, only a political act.

Johnson, on the other hand, faced 11 articles of impeachment. Nine of them had to do with his firing of Edwin Stanton, Secretary of War (think of a self-righteous Chuck Schumer) who was a “radical-Republican” (Yep, that’s what they called them) who wanted to punish the Confederacy harshly, while Johnson, in keeping with Abe Lincoln’s wishes, wanted to reach out a healing hand of brotherhood to the South instead of offering up a fistful of birch switches. In 1867, Congress actually passed a law prohibiting the president to fire Stanton, which Johnson vetoed, then Congress overrode. The other two impeachment articles were (take note!) “for Criticizing Congress”!

A thousand times more innocent than Clinton, Johnson avoided impeachment because of seven Republican senators: William Pitt Fessenden, Joseph S. Fowler, James W. Grimes, John B. Henderson, Lyman Trumbull, Peter G. Van Winkle, and finally Edmund G. Ross of Kansas, who cast the decisive vote. They defied their party and public opinion and voted against conviction. Ross was highlighted in Sen John F Kennedy’s best-seller, Profiles in Courage (1957).

It was about this crop of Radical-Republicans, not radical Democrats, who controlled the American political landscape in the second half of the 19th Century and which caused Mark Twain to declare that “Congress is America’s only native born criminal class.”

Post script: At the end of his term Ross was not invited by the Kansas GOP to run for re-election as punishment for his apostasy. He eventually moved to New Mexico Territory, and became a Democrat, where, in 1886, the Democrat’s first, last and only “conservative” president, Grover Cleveland, appointed him territorial governor. Already the party of corruption and racism, in 1898 the Democrats officially became the “Party of Labor” (and all the double-sided meanings that term had in those days). The rest is history.

Looking for a few good honest senators.

I’m a defense lawyer by persuasion, not just by training. True guilt and deserved public outrage were both evident and clearly an element of the House managers’ case as they presented it to the Senate in 1999, and all of the Republicans found Clinton guilty of obstruction of justice, while five Republicans flipped on the Perjury charge (the Maine twins, John Warner, Richard Shelby, Fred Thompson). All Democrats predictably voted NOT GUILTY.

What this told us is that the US Senate, almost to a person, is not interested in any of the moral qualities citizens look for from a jury impaneled in a civilian court. Instead of moral outrage we find only cynicism..

No living American has ever seen an indictment and trial of a totally innocent president. Andrew Johnson was the only one to suffer that indignity, but over 150 years ago. But he survived by the grace of seven brave men who had an allegiance to a higher God, not moral outrage.

So a Trump impeachment today will be a case of first instance in the modern era.

It’s stacking up that an impeachment trial against Trump will be more like the vote against Johnson, an innocent man hated by a monopolistic, almost authoritarian political establishment…than the vote against a guilty-as-sin-but-not-that-big-a-deal raunchy president, as viewed by a New Jersey jury who thinks that fine jewelry isn’t really that serious a bribe.

We need to consider this math going forward. Namely, how many Republicans can we guess in advance will vote on principle and in any way, shape or form actually be in touch with those Higher Laws?

For only the Not Guilty’s will be counted.

Unlike 1867, this is an age of instant communication, so you see, Tommy Adkins already sees. The American people will be the final jury, and will neither require nor allow seven men to risk all in order to preserve our national sense of justice. We have had quite enough, thank you, of a justice defined in a narrow corridor of a few news organizations, allied government agencies, and their toadies in Congress.

We demand a fair trial and expect a fair vote. And we have a power not enjoyed by Washington Post, New York Times, or even CIA.

To punish wrongdoing.