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The drawing of an inference is a process whereby a fact not directly established by the evidence is deduced as a logical consequence of some other fact, or state of facts, which is directly established by the evidence. The process is never mandatory; indeed, the same set of facts may give rise to conflicting inferences. However, an inference must lie within the range of reasonable probability, and some courts have held that it is the duty of the judge "to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture." 51

It has long been accepted in both civil and criminal cases that an inference may be drawn from a party's withholding or destruction of relevant evidence. The inference which may be drawn is that the unavailable evidence, if produced, would be adverse to the party who has not produced it. This rule is stated by Wigmore as follows:

The opponent's spoliation (destruction) or suppressions of evidential facts ... and particularly of a document . . . has always been conceded to be a circumstance against him, and in the case of a document, to be some evidence that its contents are as alleged by the first party. But that a rule of presumption can be predicated is doubtful.52

The operation of the adverse inference rule may be illustrated by the following language from a Supreme Court antitrust decision:

The failure under the circumstances to call as witness those officers who did have authority to act for the distributors and who were in a position to know whether they had acted in pursuance of agreement is itself persuasive that their testimony, if given, would have been unfavorable to appellants."

The operation of the adverse inference rule is subject to several restrictions. First, the party who has the burden of persuasion as to an issue cannot avail himself of the inference until he has produced sufficient evidence to shift the burden of going forward to his opponent.54 Second, an adverse inference cannot arise against a person for failing to produce evidence which is merely corroborative or cumulative.55 Third, the adverse inference rule cannot be applied where the evidence sought is the subject of a privilege 56 or where the party has a constitutional right to withhold the evidence.57

51 Wratchford v. 8. J. Groves and Sons Co., 405 F. 2d 1061, 1066 (4th Cir. 1969).

529 Wigmore, Evidence (3d ed.) § 2524.

53 Interstate Circuit, Inc. v. United States, 306 U.S. 208, 225-26 (1939).

54 Vanity Fair Paper Mills, Inc. v. Federal Trade Commission, 311 F. 2d 480 (2d Cir. 1962).

Gafford v. Trans-Texas Airways, 299 F. 2d 60 (5th Cir. 1962).

582 Wigmore, Evidence (3d ed). § 291.

In Grifin v. California, 380 U.S. 609 (1965), a case involving the privilege against selfincrimination, the Supreme Court held that it was constitutionally forbidden for the prosecution to make any comment upon the failure of a defendant to take the stand, or for a judge to instruct a jury that such failure constitutes evidence of guilt. The proposed Federal Rules of Evidence provide as follows:

RULE 513

COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE: INSTRUCTION

"(a) Comment on inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(c) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom."

The Advisory Committee's Note to Rule 513 states,

"Destruction of the privilege by innuendo can and should be avoided. Tallo v. United States, 344 F. 2d 4671st Cir. 1965); United States v. Tomaiolo, 249 F. 2d 683 (2d Cir. 1957); San Fratello United States, 343 F. 2d 711 (5th Cir. 1965); Courtney v. United States, 390 F. 2d 521 (9th Cir. 1968)."

56 F.R.D. 183, 260-61 (1973). The proposed Rules are not yet effective, but Rule 513 is intended to be declarative of existing law.

57 International Union (U.A.W.) v. National Labor Relations Board, 459 F. 2d 1329 (D.C. Cir. 1972).

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As the statement of the adverse inference rule by Dean Wigmore indicates, the most familiar application of the rule is in a situation where one party to a suit demands a specific document from another party, and the other party refuses to produce it. Frequently, that document will have operative legal significance e.g., in a contract dispute, or, in a criminal case, where the document sought might constitute a means or instrumentality of crime (written threat, attempt to bribe, etc.).

In the present case, the Committee has issued subpoenas for tapes, transcripts, dictabelts, memoranda, or other writings or materials relating to 147 presidential conversations, as well as for the President's daily diaries for an aggregate period of many months, and for various other materials and documents. It is true that these subpoenas have been issued only after the Committee's staff submitted to the Committee memoranda justifying each set of requests, in terms of their necessity to the Committee's inquiry. But in most cases, what these justifications tend to show is that given the chronology of facts known to the Committee, the President was, at a certain point in time, in a position where he could receive certain information, or have discussions with his aides on certain topics. In other words, in many cases the Committee lacks any independent evidence as to the content of the conversations and other materials subpoenaed.

Despite this tenuous basis for the operation of the adverse inference rule, on May 30, 1974, the Committee informed the President by letter:

The Committee on the Judiciary regards your refusal to comply with its lawful subpoenas as a grave matter. . . Committee members will be free to consider whether your refusals warrant the drawing of adverse inferences concerning the substance of the materials.

Upon examination, however, this portentous statement does little to advance the analysis of the evidence. For even if it were proper to apply the adverse inference rule here, what inferences could plausibly be drawn? The inferences presumably would suggest that the material withheld was in some way damaging to the President; but there is no way of knowing why the material would be damaging. The President might have been reluctant to disclose conversations in which he had used abusive or indelicate language; or had engaged in frank discussions of his political opposition, or of his personal and family life; or had discussed campaign strategy and revealed an interest in raising a great deal of money for his re-election campaign. In short, there are a myriad of reasons why materials withheld from the Committee might have been embarrassing or harmful to the President if disclosed, without in any way constituting evidence of grounds for impeachment. In the absence of extrinsic evidence as to the particular content of a given presidential conversation or memorandum, the application of the adverse inference rule would be a futile exercise.

Finally, the justification for applying the adverse inference rule in the first instance is severely undercut, if not eliminated, by the presidential assertion of executive privilege. The President claimed that disclosure of the subpoenaed materials would destroy the confidentiality of the executive decision-making process-a reasonable and

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presumptively valid argument. The Committee might have challenged this argument in court, but instead voted 32 to 6 in late May 1974, not to seek the assistance of the federal judiciary in enforcing its subpoenas. The Committee also consistently declined to seek an "adjudication" of the validity of its demands upon the President for evidence, or potential evidence, by resort to formal contempt proceedings, whereby the President would have been afforded the opportunity to show cause before the full House why his invocation of executive privilege rendered non-contemptuous his failure to produce subpoenaed materials.

Having thus declined to take some action better calculated to secure the production of the evidence sought, if the Committee was entitled to it, the majority of the Committee can scarcely be heard to argue that the evidence is superfluous because its non-production gives rise to adverse inferences as to its contents.

D. Standard of Proof

The foregoing discussion of the character of the evidence which was adduced in support of impeachment would not be complete without reference to the standard of proof which that evidence was expected to satisfy.

In this context a threshold distinction must be drawn between the sufficiency of the allegation and the sufficiency of the proof. In deciding whether to vote for or against an article of impeachment, each Member of the Committee was obliged to make two separate judgments. First, it was necessary to consider whether a particular offense charged to the President, if proved, would constitute a ground for impeachment and removal. For example, certain Members intimated in debate that even if it were established to a certainty that the President had been guilty of tax fraud, this offense was too peripheral to the performance of his official duties to warrant removal from office. Second, where the charge was deemed sufficiently serious to justify removal, it was necessary to judge whether the evidence was compelling enough to "prove" the case. Prior to the disclosure of the June 23, 1972 conversations between the President and H.R. Haldeman, for instance, we believed that the evidence adduced in support of Article I did not constitute adequate proof of presidential involvement in the Watergate cover-up.

Neither the House nor the Committee on the Judiciary has ever undertaken to fix by rule the appropriate standard of proof for a vote of impeachment, nor would we advocate such a rule. The question is properly left to the discretion of individual Members. The discussion which follows is intended only to outline the process of reasoning which has persuaded us that the standard of proof must be no less rigorous than proof by "clear and convincing evidence."

1. STANDARD OF PROOF FOR CONVICTION BY THE SENATE

Our jurisprudence has developed a number of formulaic phrases which comprise a spectrum of the various standards of proof applicable in different types of legal proceeding. A Member of the House might most easily resolve his dilemma by simply choosing one of these

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standards, basing his judgment on some perception of the impeachment process. For example, a Member might require a very strict standard, such as proof beyond a reasonable doubt, on the ground that the drastic step of impeaching a President should not be undertaken except on the most compelling proof of misconduct.

This approach, however, is insensitive to the express terms of the Constitution, which provides that "the House of Representatives shall have the sole Power of Impeachment" 58 but that "the Senate shall have the sole Power to try all Impeachments." 5 The Members of the House might best give effect to this distinction by adopting a standard of proof which reflects the reservation of the ultimate decision of factual issues to the Senate. In other words, Members would be required to make a judgment as to whether the Senate could reasonably convict the respondent on the evidence before the House. That judgment would of course necessitate a prior judgment as to the appropriate standard of proof to be applied in the Senate.

Because the Senate proceeding is a trial, the inquiry may sensibly be narrowed to focus on trial-type standards of proof. In general, the courts recognize three types of burden of persuasion which must be borne by litigants in civil actions and in criminal prosecutions.60 In most civil actions the party who has the burden of proof must adduce evidence which will sustain his claim by a "preponderance of the evidence." In a certain limited class of civil actions the facts must be proved by "clear and convincing evidence," which is a more exacting standard of proof than is "preponderance of the evidence." In criminal prosecutions the burden is on the prosecutor to prove all elements of the crime "beyond a reasonable doubt." These familiar formulas are not particularly susceptible to meaningful elaboration. One commentator has suggested that the three standards respectively denote proof that a fact is probably true; highly probably true; and almost certainly true.61

The Senate has never promulgated a rule fixing the standard of proof for conviction, but the overwhelming weight of opinion from past impeachment trials favors the criminal standard of proof beyond a reasonable doubt.62 Similarly, during the pendency of the present impeachment inquiry at least three Senators have stated on the record that proof of guilt beyond a reasonable doubt would be required.63

This view finds strong support in the Constitution, whose provisions pertaining to impeachment are couched in the language of the criminal law. The respondent is to be "tried," and the trial of "all Crimes except... Impeachment" shall be by jury. The offenses cognizable in an impeachment trial are "Treason, Bribery, or other high Crimes

58 U.S. Const., art. I, sec. 2, cl. 5.

50 Id., art. I, sec. 3, cl. 6.

609 Wigmore, Evidence (3d ed. 1940) §§ 2497, 2498; McCormick, Evidence (2d ed. 1972) $339. 61 McBaine, Burden of Proof: Degrees of Belief, 32 Calif. L. Rev. 244, 246-47 (1944); cited with approval in McCormick, Evidence (2d ed. 1972) § 339, n. 47.

62 A typical example is the following excerpt from the memorandum opinion of Senator Pittman, filed in protest to the conviction of Judge Ritter in 1936:

"The Senate, sitting as a Court, is required to conduct its proceedings and reach its decision in accordance with the customs of our law. In all criminal cases the defendant comes into court enjoying the presumption of innocence, which presumption continues until he is proven guilty beyond a reasonable doubt." Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter 642.

See remarks of Senator Biden, 120 Cong. Rec. S5574 (April 10, 1974); Senator Stennis, id. $5738 (April 11, 1974); Senator Ervin, id. S5737 (April 11, 1974).

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and Misdemeanors." The Senators are asked to vote Guilty or Not Guilty on each article of impeachment, and if two-thirds vote Guilty the respondent is "convicted."

Even if it were admitted that the Senate impeachment proceeding is a criminal trial, and that the grounds for impeachment are limited to criminal offenses, the argument might still be made that the traditional criminal standard of proof should not necessarily apply. Adherents of this view point out that the requirement of a more exacting standard of proof in criminal cases was introduced to mitigate the rigors of the criminal code in Eighteenth Century England, where nearly all crimes were punishable by death." The use of capital punishment has virtually disappeared; but though his life is no longer at stake, the criminal defendant still stands to be deprived of his liberty. The purpose of the rigorous standard of proof in criminal cases is to guard against the possibility that an innocent man might be wrongly convicted and subjected to this severe punitive sanction. By contrast, it is argued, the primary purpose of impeachment is not punitive but remedial. Since removal from office is not punishment, there is no reason to apply the strict criminal standard of proof.

This argument is refuted by reference to the intentions of the Framers, who clearly conceived of removal from office as a punishment." Thus, Mason favored "punishing the principal" for "great crimes"; Franklin thought that the Constitution should provide for "the regular punishment of the executive"; Randolph stated that "guilt wherever found ought to be punished"; and Mason said that the executive should be "punished only by degradation from his office." No one who has witnessed the recent agony and humiliation of President Nixon can seriously doubt that removal from office is a punishment.

Because of the fundamental similarity between an impeachment trial and an ordinary criminal trial, therefore, the standard of proof beyond a reasonable doubt is appropriate in both proceedings. Moreover, the gravity of an impeachment trial and its potentially drastic consequences are additional reasons for requiring a rigorous standard of proof. This is especially true in the case of a presidential impeachment. Unlike a federal judge, an appointed officer who enjoys lifetime tenure during good behavior, the President is elected to office for a fixed term. The proper remedy for many instances of presidential misbehavior is the ballot box. The removal of a President by impeachment in mid-term, however, should not be too easy of accomplishment, for it contravenes the will of the electorate. In providing for a fixed four-year term, not subject to interim votes of No Confidence, the Framers indicated their preference for stability in the executive. That

May. Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am. L. Rev. 642, 656 (1876).

See pp. 7-12, supra. Article I, Section 3, Clause 7 of the Constitution, which provides that the party convicted at an impeachment trial "shall nevertheless be liable and subject to Indictment, Trial. Judgment and Punishment," is often cited as evidence that the Framers meant to distinguish removal from punishment. But the clause may also fairly be read to mean that after the respondent has been punished by removal from office, he remains subject to the additional punishment provided by the criminal laws.

Representative Weaver's remarks during the debate over the impeachment of Judge English in 1926 have a poignant application to the present case:

"Why, gentlemen, it is true the punishment does not go to his life or his liberty or his property. It does not touch those things. It does not reach the physical man, but, gentlemen. it goes to the destruction of his soul, the very essence of the man. . ." 67 Cong. Rec. 6706 (1926).