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VERIFY: The differences between an impeachment conviction and a criminal conviction

An impeachment trial by the Senate shares a lot of terms with a criminal trial, but verify experts explain that they are entirely different processes.

WASHINGTON — President Trump is set to face his second impeachment trial in the U.S. Senate, with the House of Representatives charging him with inciting the insurrection at the Capitol building on January 6th. 

While the impeachment process shares a lot of vocabulary with the criminal trials many of us are used to hearing about, that's where the similarities end.

The Verify team talked to the experts about the differences between an impeachment conviction and a criminal conviction.

SOURCES:

  • Robert Peck, constitutional attorney and the president of the Center for Constitutional Litigation
  • Dr. Mark Graber law professor at the University of Maryland
  • Ilya Somin, law professor at George Mason University.

"Impeachment is an entirely different process from the criminal process, even though it shares some of the words that describe the process," Peck says. "The impeachment process has no impact whatsoever on whether or not there is a criminal trial."

All of our experts agree the similarities stop at the vocabulary. They say there are two main differences to emphasize here: procedures and consequences. The Senate writes its own rules, but they cannot impose jail time, fines or the death penalty in an impeachment conviction.

Procedural differences

The process for criminal trials in the United States are determined by the Constitution and U.S. Code. For impeachment trials, the Constitution allows the Senate to create their own rules.

"There are some very strict rules for a criminal trial," Dr. Graber explains, "there must be notice, right to an attorney, right to cross examine witnesses, right to call witnesses. These rules don't exist for impeachment. The Senate determines their own rules."

In President Trump's first Senate impeachment trial, there were no witnesses. That was a decision by the Senate. If they change their minds this time around, they can call witnesses for questioning.

RELATED: VERIFY: Impeachment does not undo a president's pardons

Somin told us that the Senate votes on the trial rules, and can vote to change them at any time with a simple majority.

Another key difference is who decides to convict, and how. 

In a normal criminal trial, Dr. Graber says, a jury must decide that a defendant is guilty beyond a reasonable doubt. 

"In an ordinary criminal trial, the jury must be unanimous," Dr. Graber explains, "The Constitution requires reasonable doubt... the Constitution doesn't set any standard [for impeachment.] Senators determine for themselves what the burden of proof is."

Somin agreed telling us it's basically up to each individual senator to determine how much proof they need to hear to convict.

"If a senator thinks it has to be beyond a reasonable doubt, the senator can vote on that basis," he says. "If on the other hand, the senator thinks that even a small chance of the charges being true is enough to remove the president, or any other impeached official, then the senator can vote on that basis."

Our experts also agreed there is a level of politicization at play during an impeachment trial that is absent in a criminal trial. Senators do not have pure impartiality, while that is a requirement for a trial jury.

"Jurors are more or less randomly selected citizens. And they try hard to screen out anybody who has any connection to the defendant... so that the jurors will be as objective as possible," Somin says. "And of course, the senators, most of them are not objective at all."

Peck points out there are also potential consequences for the way that senators vote in an impeachment trial, while there are none for trial jurors.

"There are political considerations in how you vote and what it means for your future elections," Peck says. "It's essentially a political decision that you have to make that decides that you're removing a president from office. But at the same time, it's informed by the legal consequences of allowing that act to go unpunished."

"The founding fathers, I think to some degree, intended this to be a political process, and not a purely legal one," Somin explains, "Because it's not about punishing an individual for what they've done. It's rather removing a danger to the republic for their abuse of power or illegal conduct. And they thought that the senators would be well positioned to do that."

Different consequences

All of our experts told us that the Constitution allows for only two consequences for impeachment: removal from office, and a ban from holding future office if the Senate decides so.

The Senate can't impose jail time, fines or the death penalty in an impeachment conviction.

Dr. Graber explained that in a criminal trial, you must be convicted of something spelled out in the U.S. or state criminal code. Often this comes with a sentence specific to that crime. But a Senate impeachment trial does not follow criminal code.

"This trial results in either acquittal or convention," Peck says. "The conviction simply means that the person is removed from office, and potentially, if the senate also decides, becomes ineligible for future federal office."

"The Constitution says being impeached still leaves you open to a criminal trial," Dr. Graber says. "If impeachment was criminal, that would be impossible, because that is double jeopardy. So the Constitution itself acknowledges that an impeachment trial is not a criminal trial."

Article 1 Section 3 of the U.S. Constitution states that "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

"A person can be impeached for bribery," Dr. Graber points out, "and then indicted and convicted for bribery. But they are separate events." 

So we can Verify that an impeachment trial is a separate world from a criminal trial in the United States. An official can be removed from office and then criminally convicted of the same thing, but the Senate cannot impose criminal sentencing on them. That's left up to the courts.