In a trial, there are two questions before the court:
- Did they do it?
- What punishment should they face?
The first question is one of fact: does the evidence prove that the accused did the crime? Or does the accused’s defense disprove the evidence? The verdict is either guilty – the crime happened and the accused is responsible – or not guilty.
The second question, that of punishment, has no relevance if the first question results in a not guilty verdict.
So far, none of this is a revelation or a surprise. This is common criminal trial court procedure. Often, a jury answers the question of fact, while the judge decides upon the appropriate punishment.
As we await the trial phase of the impeachment proceedings, it’s apparent that many members of the U.S. Senate are jumping past the first question – the question of fact – and starting on the question of punishment. Some argue that the defendant should not be punished because … here, they apply one of a variety of reasons. He’s a private citizen, no longer in office. He’s been treated badly by the press. He’s been treated badly by the Democrats.
These are all arguments against proceeding with the trial because the punishment would be wrong.
All of these arguments silently accept that he is guilty.
Remember that the first question is the question of fact: did it happen? did he do it? is he guilty? The question of punishment only follow if a guilty verdict is returned. And all of his defenders are now arguing that the punishment would be wrong – none of them are arguing that he is not guilty.
So let’s state this argument another way – let’s use plain language that common people use. The argument is this:
“Yes, he did it, he’s guilty … but I don’t care!”
The argument to preempt the trial because of the harshness, or vindictiveness, or pointlessness, of the punishment says exactly that – we don’t care.
And stated that way, we reach a completely different conversation. Should the guilty be punished? What say you – yea or nay?
If we proceed with the impeachment trial, the evidence and testimony will be presented by the accusers and by the accused. The question of fact will be answerable. There is no penalty at this stage of the proceeding – only fact-finding and an evidence-based conclusion.
And the American public, and the world public, deserve to know these facts. Did he do what he is accused of? Did he, in fact, incite an attack upon the Capitol in order to overthrow a Congressional process? Did that attack result in deaths and injuries? Did it happen? Is he responsible?
The question of punishment will only follow if the answer is “Yes, he’s guilty” … and if we care.