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February 1, 2020

Some GOP Senators, fully aware of the mandatory minimum sentence, embrace a form of jury nullification to justify acquittal of Prez Trump

A few month ago in this point, I noted an interesting Second Circuit ruling that precluded a district judge from allowing defense attorneys to argue to jurors that they had nullifcation authority — that is the  power to return a not-guilty verdict in the face of clear guilt because of concerns about the undue sentencing consequences of a guilty verdict.  This ruling came to mind as I read this extended statement from Senator Marco Rubio, which includes these passages:

Voting to find the President guilty would not just be a condemnation of his action. If I vote guilty, I will be voting to remove a President from office for the first time in the 243-year history of our Republic....

That is why six weeks ago I announced that, for me, the question would not just be whether the President’s actions were wrong, but ultimately whether what he did was removable.

The two are not the same.  Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office....

Determining which outcome is in the best interests requires a political judgment — one that takes into account both the severity of the wrongdoing alleged but also the impact removal would have on the nation.

I disagree with the House Managers’ argument that, if we find the allegations they have made are true, failing to remove the President leaves us with no remedy to constrain this or future Presidents.  Congress and the courts have multiple ways by which to constrain the power of the executive.  And ultimately, voters themselves can hold the President accountable in an election, including the one just nine months from now....

I will not vote to remove the President because doing so would inflict extraordinary and potentially irreparable damage to our already divided nation.

This statement by a Senate juror seems to be arguing that, even if President Trump is factually guilty, the mandatory minimum punishment in an impeachment trial of removal is not in the best interest of the country.  Similarly, Senator Lamar Alexander's statement about why he was voting against witnesses seemed to call President Trump's actions inappropriate while suggesting the sanction of removal was not justified for this kind of inappropriate behavior.

I do not mean in any way to fault these Senators' approach to serving as jurors, but rather just seek to highlight in this context the thinking of two fully informed jurors with a concern for proportionate punishment and the broader public interest.  Put another way for sentencing fans, we should be ever mindful of how mandatory minimum sentencing schemes (even one in the US Constitution) will necessarily impact the work of all decision-makers in the administration of justice.  Also, if jury nullification makes sense in the trial of a President, why not for everyone else?

February 1, 2020 at 10:25 AM | Permalink


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