AND so, the long-awaited trial commences. True, it is a trial, and the verdict that will be pronounced must follow from the evidence. But — and this should not be glossed over — we do not have before us a tabula rasa, a clean slate, and the senators as well as the nation cannot assume the disposition of unknowing. The congressional investigations that led to this day are matters of public notice, as are the items of evidence that formed part of the impeachment complaint both in 2025 and in the present year. This is a respondent about whom much is already known, and all of which we have taken cognizance cannot be declared nonexistent.
The senators sit as judges. I have been very strong in pushing back against giving them the title “judges” because they are not. They are rather senators, and it is as senators that the Constitution calls upon them to perform the nonlegislative task of judging in the impeachment trial. They know what the public knows — perhaps even more. It cannot be asked of them to feign ignorance. What can be demanded of them is that they test the case of the prosecution and determine the soundness of the defense. The proverbial “cold impartiality of a neutral judge” — aside from being a charming description of a character that does not and cannot exist in real life — does not apply to them, for while the impeachment trial is a trial, it is a political process as well: politicians determining the fitness of a public officer to continue in occupancy of one of the highest offices of the land.
While senators do not sit as instructed members of the legislature — casting their votes whether for legislation or for other acts that the Senate is legally bound to perform only after determining popular preference — neither can they be oblivious to public opinion. After all, they are not hereditary peers but elected representatives of the people. The deliberations and decisions of the chambers of Congress are and should be permeable to guarantee that legislative discourse is responsive to public discourse and popular will-formation. And in that lies the true test of statesmanship: balancing personal conviction, including — perhaps principally — the promptings of a well-formed conscience and preference, with sensitivity to public opinion.
The Constitution lays down the grounds for impeachment:
“SECTION 2. The President, the Vice President, the Members of the Supreme Court, the Members of the Constitutional Commissions and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.”
More specific, to be sure, than the “high crimes and misdemeanors” in the United States Constitution, but still purposively broad and deliberately comprehensive. “Culpable violation of the Constitution,” “other high crimes” and “betrayal of public trust” are not definable, and it would certainly violate the spirit of the Constitution were a definition to be demanded for each ground, in the same way that crimes are defined in the Revised Penal Code and in special penal laws. While the respondent can rightly demand that the acts that are covered by these grounds be specific to enable for a fair riposte, a motion for a bill of particulars that would require that the Senate lay down in advance the elements of each ground would certainly be misplaced and should on no account be entertained. The clear intent of the Constitution is to leave the grounds sufficiently indicative without constricting either the House of Representatives that initiates the process and the Senate that tries the case in determining from the totality of the averments and their supporting evidence, whether a ground or grounds for dismissal from office are present.
From this it follows to me that the Senate cannot be bound by what the rules of evidence and jurisprudence have laid out as the requirements either of substantial evidence, preponderance of evidence or proof beyond reasonable doubt. What matters is whether the senators are convinced that the respondent is indeed guilty under one or more grounds for dismissal from office and perpetual disqualification therefrom.
That does not make legal considerations irrelevant, for there will be many occasions, I can predict, that it will be useful to resolve an issue by referring to accepted rules of evidence. Can an affidavit be admitted without its affiant testifying at the trial? The answer any lawyer will give is a firm — perhaps even an unctuous! — no, but if one recalls that even in administrative cases, technical rules of evidence do not necessarily apply, then it will really be up to the Senate to determine — on reasonable and legally recognizable grounds — what it takes to be evidence and that to which no credence is to be given. And in such a circumstance, the reason that the rules are there will be important. At the Nuremberg War Trials, much of the evidence consisted in affidavits on which the affiants did not testify in court. I am not saying that this should be the case. But I am pointing out the fact that proceedings sui generis call for their own rules, making the accepted rules sometimes relevant, sometimes less determinative.
The vice president is on trial. But so is the Senate, and so is the entire nation — we who have always loudly demanded the accountability of “big fish.” The respondent in this case is the second-highest official of the land — by any reckoning, a “big fish” indeed, and how we abide by and demand of our legislators firm adherence to constitutional principles is on trial as well.