Not to unduly puff my cred, but I’ve been a strong proponent of due process. But there are limits.
For example, you have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans. You have conducted your proceedings in secret. You have violated civil liberties and the separation of powers by threatening Executive Branch officials, claiming that you will seek to punish those who exercise fundamental constitutional rights and prerogatives.
This was written by Pat A. Cipollone, counsel to President Trump. It’s nuts. It’s utter nonsense. It’s the abuse of the arguments that I and others make when the circumstances require due process but it’s denied, and it undermines legitimate claims to due process deprivations by seizing upon the words of due process without any remotely reasonable connection to its rationale.
Chairman Nadler of the House Judiciary Committee has expressly acknowledged, at least when the President was a member of his own party, that “[t]he power of impeachment … demands a rigorous level of due process,” and that in this context “due process mean[s] … the right to be informed of the law, of the charges against you, the right to confront the witnesses against you, to call your own witnesses, and to have the assistance of counsel.” All of these procedures have been abandoned here.
Impeachment is the accusation, what happens in the House of Representatives. The trial is conducted in the Senate. Every contention above is correct, but only applied to the Senate trial, not the House investigation. Articles of impeachment are much like an indictment. They are merely founded, but untested, accusations.
These due process rights are not a matter of discretion for the Committees to dispense with at will. To the contrary, they are constitutional requirements. The Supreme Court has recognized that due process protections apply to all congressional investigations. Indeed, it has been recognized that the Due Process Clause applies to impeachment proceedings.
None of this applies to what is happening now, and it would appear that Cippolone has seized upon the language of due process as a public political sham to give the groundlings something to latch onto, assuming their need to believe and lack of legal acumen. After all, due process is good, right? Due process is what guys like me keep pounding on, right? How can we, as good Americans, not believe in our constitutional guarantee of due process?
Except none of what Cippolone writes is accurate. It’s just unadulterated crap. So there’s no due process involved, you ask? Hold yer horses, there. That’s not quite the answer either.
When an individual is subject to investigation that might culminate in an indictment, it is often the case that laws allow the potentially accused to appear, to offer evidence to contradict the accusations against him and to offer testimony to challenge the accusations. This isn’t the due process required from the proceeding to determine guilt, but to provide an opportunity to avoid the process leading to that determination.
It’s not the case in all jurisdictions, but some provide a degree of process in advance of indictment. It may include the requirement that a prosecutor present exculpatory evidence together with evidence of guilt. It may include the opportunity for the inchoate defendant to be heard, to offer his own testimony or even that of his witnesses. The process is limited, and rarely does much to help the accused, but it remains available in some jurisdictions.
Is this the case in impeachment? Not really, but mostly for lack of any clear procedural mechanisms in this political process. Just as the politics of impeachment works against the accused, any sense of unfairness works in his favor and against those who would impeach him. The President could offer to testify. He could offer his witnesses to testify. He could provide the documents he believes support his perspective.
If Trump wants due process to the extent it might be available during the investigation phase of this process, he could certainly ask for it by seeking to put himself and his people before the House committees. That does not appear to be what he wants. Not at all.
For these reasons, President Trump and his Administration reject your baseless, unconstitutional efforts to overturn the democratic process. Your unprecedented actions have left the President with no choice. In order to fulfill his duties to the American people, the Constitution, the Executive Branch, and all future occupants of the Office of the Presidency, President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry under these circumstances.
If this argument sounds vaguely familiar, perhaps this will help.