Not All Process Is Due, Presidential Edition

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.

9 thoughts on “Not All Process Is Due, Presidential Edition

  1. Skink

    This stuff gets me. As lawyers, we didn’t acquire all those fancy wall-hanging admissions to make people dumber. Ethical rules prohibit making bullshit arguments. If nonsense like this were argued in court, the right judge would likely tell the speaker to sit down. There would be no laughter, but wonderment to whether the person really is a lawyer.

    But this is different: it’s worse. What is the intended effect? Are the members of the House going to say, “holy shit, he’s right?” Are they going to change their rules and whip themselves with hooked straps? If it’s aimed at the uninformed, what is the purpose? They have no place in the process. That it can have no effect makes it worse. It’s horrible lawyering to make wrong statements loudly; it’s much worse to do it for no effect.

    Reply
    1. SHG Post author

      It’s a lawyer appealing to ignorance, and deliberately making people stupider. I don’t blame Cippolone for defending his “client,” but the damage done by arguments that are so ludicrous and fundamentally wrong to serious due process arguments can’t go unmentioned. Much as zealous representation is our duty, so too is “within the bounds of the law.” Frivolous, if not facially dishonest, arguments are intolerable.

      Reply
      1. Kathryn Kase

        On the other hand, we will all be learning very soon from SCOTUS whether presidential privilege precludes, as the President has insisted, even being investigated for criminal conduct during the period one is President. Time was when I could predict the outcome of such a legally and historically baseless argument. Now, I’m not so sure.

        Reply
    2. Raccoon Strait

      Given Trump’s obsession with Fake News, it is small wonder that it might be part and parcel in his defense strategy. That his lawyer seems to be falling for the old saw about how any publicity is good publicity doesn’t say much positive about him.

      The target seems to be gullible constituents who might take the time to contact their House representatives, in Trump’s favor. They, however, listen to big contributors more than they listen to us, so I am not sure how effective that plan may be.

      Reply
  2. delurking

    Whatever is said in the public House hearings during the “investigation” is inherently part of the Senate “trial”. One reason the Democrats want to hold public hearings with these witnesses is so that they can sway the Senate by swaying the Senators’ constituents. Thus, while the House may have the authority to set its own rules, it is not unreasonable for the President to argue that they should follow the same principles that our justice system follows.

    Reply
    1. SHG Post author

      If what you’re attempting to say, however ineptly, is that impeachment is a political process, and so the public perception influences the ultimate conclusion, that’s fine, but your attempt to shoehorn process into the mechanics isn’t a requirement, but merely one more piece of the perception question.

      If the Dems in the House come off appearing unfair, it will inure to Trump’s benefit. If not it won’t. In the meantime, the president doesn’t lack for opportunity to make his case in the media outside the hearing room walls for the sake of public perception.

      Reply

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