No, The House Impeachment Proceeding Is Not Unconstitutional

As I explain today in The American Prospect:

The Conservative Legal Community Is Grasping at Straws to Defend Donald Trump

by Steven Lubet

November 11, 2019

The defense of Donald Trump has taken some strange turns lately, as allies and supporters have constantly had to change their positions—sometimes in a matter of days or hours—in order to justify the president’s shifting moods and explanations. Perhaps the greatest contortion, however, has come from an unexpected source.

Steven Calabresi, the highly respected constitutional law scholar—and my colleague at the Northwestern University Pritzker Law School—recently published an essay claiming that the House of Representatives’ impeachment proceedings are “violating the president’s constitutional rights” to “confront the witnesses against him” in a “speedy and public trial.” To reach this conclusion, Calabresi has to misapply the unambiguous provisions of the Sixth Amendment and completely ignore the equally plain terms of Article I’s definition of the impeachment power.

As a co-founder of the Federalist Society and the current chair of its board of directors, Calabresi ordinarily speaks with great authority on behalf of the conservative legal establishment, which makes this misstep all the more troubling. In the essay, Calabresi argues that “Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him.” He then sets out the basic rights afforded to criminal defendants under the Sixth Amendment, and asserts that these rights have been denied to the president by the House of Representatives.

The opening words of the Sixth Amendment—“In all criminal prosecutions”—make it unmistakable that its provisions do not apply to impeachments, which are clearly noncriminal in nature. Impeachment by the House and conviction by the Senate cannot result in imprisonment, fine, or any other criminal penalty. Rather, the only allowable consequences are removal from office and disqualification from future office-holding.

A full reading of the Sixth Amendment makes it even more obvious that it cannot, by its own terms, apply to congressional impeachments. Calabresi complains that the House of Representatives has denied Trump the rights of confrontation and public trial, but another provision of the Sixth Amendment guarantees trial by “an impartial jury of the State and district wherein the crime shall have been committed.” Impeachments, of course, are tried by the Senate, per Article I, Section 3, with no requirement of impartiality. There is nothing to keep senators from expressing their opinions in advance of the trial, as Lindsey Graham has done by branding the house investigation B.S. And needless to say, all impeachment trials are held in Washington, D.C., no matter where the alleged offenses occurred.

The inapplicability of the Sixth Amendment is consistent with the explicit provisions of Article I, stating that the House of Representatives has the “sole power of impeachment” and the Senate has the “sole power to try all impeachments.” The U.S. Supreme Court has unanimously ruled that impeachment proceedings are within the exclusive province of Congress and are therefore “nonjusticiable,” meaning that they are not subject to judicial review. Moreover, the Constitution holds out the possibility of a post-impeachment criminal prosecution—in which the official “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Only at that time would the Sixth Amendment come into play.

Even assuming the validity of the criminal-law analogy, Calabresi’s claims are still wrong. Impeachment is only a charge of misconduct, the equivalent to a grand jury indictment. There is no Sixth Amendment right either to witness confrontation or a public hearing at the grand jury stage, where the proceedings are secret according to statute. In fact, Trump’s Department of Justice has argued that the records of Special Counsel Robert Mueller’s grand jury proceedings must remain sealed and non-public, even though they have been subpoenaed by the House Judiciary Committee.

There is simply no legal, constitutional, or logical basis for applying selective provisions of the Sixth Amendment to an impeachment inquiry in the House of Representatives. Should actual articles of impeachment be voted by the House, it will then fall to the Senate to hold a trial under its own rules, but even that proceeding will not be “criminal” in nature. It is perhaps remotely conceivable that the Senate would deny Trump some elements of due process, and Calabresi should therefore hold his fire until and unless that actually happens.

There is no one on the Northwestern faculty for whom I have more affection than Steve Calabresi, but I still have to say it: Friends don’t let friends distort the Constitution.

Comments

[Justin]

So Trump has forbidden everyone from testifying but wants to subpoena people to testify. And the House should not have private proceedings but they certainly should not make the proceedings public. He wants his lawyer there but when Giuliani was invited he refused to come. And a bunch of House members who were invited to the deposition protested outside that they were not allowed in.

Got it.

[anon]

Lubet states that Calabresi is "distorting" the Constitution. Lubet states that "Should actual articles of impeachment be voted by the House, it will then fall to the Senate to hold a trial under its own rules, but even that proceeding will not be “criminal” in nature."

Lubet might have a point that the Sixth Amendment refers to criminal prosecutions. But, that point is irrelevant in this context.

One might start with the opinion in In re Application of Committee on Judiciary, U.S. House of Representatives D.D.C., October 25, 2019, --- F.Supp.3d ----:

“Contrary to DOJ's position—and as historical practice, the Federalist Papers, the text of the Constitution, and Supreme Court precedent all make clear—impeachment trials are judicial in nature and constitute judicial proceedings. … As Hamilton's thinking on the subject of impeachment demonstrates, his choice of the words “judicial” and “court for the trial of impeachments” was purposeful. See Nixon v. United States, 938 F.2d 239, 260 (D.C. Cir. 1991) (Randolph, J., concurring) (“The inference that the framers intended impeachment trials to be roughly akin to criminal trials is reinforced by seemingly unrefuted statements made by Alexander Hamilton during the ratification debates.”), aff'd, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993).”

So much for the claim that impeachment trials are not akin to criminal trials. If you parse “trial” from “Impeachment,” then you might still want to consider the authorities.

For example, those precedents cited in the president’s letter to Congress last month, supporting the following statements: “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.” See, e.g., Watkins v. United States, 354 U.S. 178,188 (1957); Quinn v. United States, 349 U.S. 155,161 (1955). and Hastings v. United Stales, 802 F. Supp. 490, 1992), vacated on other grounds by Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993).

Oh well. Nothing to see there, right? Not even worth mentioning contrary precedents?

Ok, let's pretend that a whole argument can be constructed out of one word in the Sixth Amendment ("criminal") and a whole lot of opinion.

THen, we might consider the illogic of the main opinion. Lubet want to liken Adam Schiff, et al. to a “grand jury” … not clear if he means Schiff is the prosecutor or a juror, or both. But, in light of the argument Lubet asserts, then, let's consider the rules regarding conflicts involving grand jurors and prosecutors, and the limits on the authority of both.

Any chance we'll have an opinion on that?

[anon]

As long as Lubet is accusing Calabrisi of "distorting" the Constitution, can we also consider Lubet's arguments in light of the rules of ethics applicable to trial attorneys?

Shouldn't these rules apply with even more vigor to a law professor holding himself out as an expert on these rules of legal ethics?

ABA Model Rules of Professional Conduct 3.3(a)(2).

[anon]

A fair reading of the Calabrisi essay casts doubt on Lubet's point as well. Calabrisi stated; "Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him."

In this, he was correct. Perhaps later, he incorrectly started arguing a shorthand formulation -- the Sixth Amendment requires in impeachment proceedings x right -- which may not be, as Lubet beats to pulp, technically correct.

But the thrust of his argument is as stated above and as such was far more correct that Lubet's retort (based on a misreading of the law, presuming he read it), ""Should actual articles of impeachment be voted by the House, it will then fall to the Senate to hold a trial under its own rules, but even that proceeding will not be “criminal” in nature." and "There is simply no legal, constitutional, or logical basis for applying selective provisions of the Sixth Amendment to an impeachment inquiry in the House of Representatives." -- both of which propositions are false.

[To Anon]

Anon’s arguments defending Calabresi sound like all the people defending Trump in one way or another over the past few years. Sure, what Trump actually said was 100 percent incorrect, but he almost said this other thing and here is why that other thing may be sort of true. So his critics are lying when they said Trump was incorrect.

Calabresi’s argument was that the Sixth Amendment applies to an impeachment proceeding in the House. He was 100 percent wrong about that. He was not arguing about due process more generally, which is a more flexible standard based on the type of proceeding and the stakes involved.

[Jim Gardner]

I do not understand at all this contention that the President of the United States possesses due process or other individual rights during an impeachment proceeding. The "President" is not an "individual"; he is a constitutional officer. Donald Trump the individual has constitutionally protected rights, but the President of the United States has only whatever procedural protections are to be found in the provisions of the Constitution governing interbranch relations. Impeachment is not a proceeding directed against Donald Trump; it is a proceeding directed against the President of the United States.

Moreover, there is a reason that the Constitution affords individuals the benefit of individual rights against the state: the state is strong, and individuals are weak. Consequently,without constitutional protections individuals can be badly maltreated by the state. But the president of the United States *is* the state, or at least one-third of it, and the most powerful third, at that. This constitutional officer doesn't need the protections of individual rights, and doesn't have them, because he has innumerable other tools at his disposal to resist actions of the legislative branch of which he disapproves -- tools to which ordinary individuals have no access.

To claim that the president enjoys the protection of individual rights is thus to make a basic category mistake.

[anon]

Jim

You'll need to take that up with SCOTUS. See, Watkins, "The Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action."

As for likening the officers of the gov't to individual actors in other settings, the talking point is that the investigation is a "grand jury" like proceeding. Alright, then, do prosecutors have the ability to selectively leak grand jury testimony to influence the jury pool, operate with blatant and overt biases and conflicts of interest, make demonstrably false accusations in the press, etc., and then act as jurors in the same case?

Or, if Schiff et al. are special prosecutors, then, like Starr and Mueller and all the rest, by all means let's hear their testimony. And, like Dean, so too any witnesses against the accused. And, witnesses the accused wishes to proffer.

Have you heard, over and over, the notion that the purpose of these hearings is because the public "won't read the book, but they'll see the movie"? That the Mueller testimony flopped? That a witness who emotes will be more convincing?

Could there be any closer analog to a "show trial": a trial just to influence the public, when the outcome has already been determined?

Of course, you can argue that there is no fairness or process required.

Credibly?

WHat has become of the Democrats? Have they lost all remembrance of what the party once stood for? Is the hatred of this president worth throwing away scrutiny of the security state, principled opposition to corruption by any party, restraint in military engagement, etc.?

[anon]

Here's the question that perhaps sums it up:

There's an election in one year. Why are the Democrats afraid to go to that election with their arguments about their own overwhelming moral and ethical superiority, the venality of this president, etc. and, as predicted, win with a "100 Million" vote margin?

Why are the Democrats be in the least concerned about the outcome of the next election? If this impeachment is designed, as it appears to be, not to remove the president, but tarnish him for electoral advantage, why do it?

If your answer is that 64 million or so of your fellow citizens are (fill in the blank), including millions who voted for the last president, and therefore can't be trusted with the democratic process, then the conduct of the Democrat party makes sense: fear of the next election.

If that is the attitude toward so many of your fellow citizens, however, then you should look in the mirror before you accuse anyone else of racism, sexism, ageism, religious bigotry and other well known forms of hate.

Watching the coverage of this issue, one cannot be blown away by the level of open hostility and hatred that accompanies the "news" and "opinion" that predominates.

[Patrick S. O'Donnell]

This morning on MSNBC, George Conway (a conservative) and Neal Katyal (a liberal) were more or less on the same page regarding the constitutional and legal questions and implications of the impeachment hearings and process in general (as these speak to the behavior of Trump as President) for what remains of our democracy. It is obvious to anyone paying attention over the last several years that Trump never grasped the meaning of his oath of office,* nor has he evidenced any basic understanding of constitutional norms or the fundamental principles and practices of democracy constrained by the rule of law, law which gets its bearings from the pursuit of justice (and any adviser or official with the temerity to attempt to explain the same to the President was soon found guilty of failing to demonstrate unquestioning loyalty to Trump's reckless wishes and desires, and expelled from the Administration). Having routinely displayed virtually (if not) all of the symptoms of pathological or megalomaniacal narcissism while encouraging both a plutocratic and kleptocratic ethos at the heart of politics and at the highest levels of government, it is not surprising that we have arrived at the point in which we can justify assembling any number of articles of impeachment.

For a nice introduction and overview, see Steve Sheppard's book, I Do Solemnly Swear: The Moral Obligations of Legal Officials (Cambridge University Press, 2009).

[Patrick S. O'Donnell]

errata (I was distracted by the beginning of the hearings): The President having routinely displayed.... And the book reference should have been preceded by an asterisk.

[To Anon]

To Anon at 9:04 PM

Yes, there is an election in one year. If you follow the impeachment proceedings, you can see that Trump was trying to cheat in that election by extorting a foreign country - through withholding desperately needed military aid - to issue a press release that this foreign country is investigating his political opponent. Trump controls all kinds of power of the Presidency to bribe people for this or that to help him in the next election. So no, we cannot assume the next election will be fair.

Moreover, there is real evidence that he is making life and death, foreign policy decisions - often against American interests - to benefit his own financial interests -- in Turkey, Saudi Arabia, Russia, Qatar. This cannot continue for the next year.

So no, we cannot wait for the next election, and we cannot take the chance that Trump's cheating efforts in such election will succeed.

[anon]

After years of attacking the legitimacy of the 2016 election owing to a claimed conspiracy between the Trump campaign and the "Russians" (debunked by Mueller), now the claim is that the next election will be illegitimate too (unless, of course, the Democrat wins), owing to a conspiracy with Ukraine.

There is no point in debating these claims, especially when there is long laundry list of "interference" by foreign countries -- including Ukraine -- on behalf of HRC in 2016. The existence of ample evidence that demonstrates this interference is completely denied by the Democrats, even when reported in media they usually cite, like Politico, the NYT, etc. (Usually, of course, such evidence is just not reported in outlets like MSNBC and CNN, which work as advocates for the Democratic Party and as a non-stop chorus, singing in unison and calling for Trump's removal.)

Today, the star witness for the Dems actually claimed that such interference by Ukraine was JUSTIFIED because of Trump's response to a question about Russian aggression in the Ukraine. In other words, according to the witness, if Trump didn't support Ukraine sufficiently vis a vis Russian aggression, in the view of Ukrainian officials, then Ukraine was perfectly justified in working with the DNC, et al, to "dig up dirt" on Trump and support HRC.

There is no way to begin to describe how Schiff could sit there and hear this, seemingly oblivious to the hypocrisy that has characterized his efforts over the past three years.

The only thing that has surpassed this brazenly partisan approach was when Schiff stated that he doesn't know the identity of the "whistleblower." He actually so stated.

There are ever more reasons to call the "special prosecutor" here - Schiff - as a witness, to explain the way he conducted his "grand jury" proceedings and to explore his various claims.

[Jeff Schmitt]

Anon, the precedent cited in the President's letter do not support the idea that the House is violating Due Process. Watkins holds only that the 5th and 1st Amendments apply in the context of congressional investigations. Watkins suggests that the courts will apply a balancing test when congressional inquiries threaten freedom of association or speech.

The district court decision in Hastings says that due process applies in the impeachment context. However, that case is not controlling because: (1) it was vacated in light of Nixon and found to be a non-justiciable issue; (2) it concerned the Senate impeachment trial, not the House vote; and (3) it thus said nothing about the required process in the House.

If this is the best authority for the President, his legal argument seems incredibly weak, perhaps frivolous.

[anon]

Jeff

You are correct about the outcome of Hastings, but wrong, in my view, about the import of that outcome.

A long quote from the Hastings court follows. I may have omitted an ellipsis here or there, but it may merit the time review what the court actually held, inter alia:

"Fairness and due process must be the watchword whenever a branch of the United States government conducts a trial, whether it be in a criminal case, a civil case or a case of impeachment. …
The defendants urged the Court to dismiss this action on the grounds that it lacks jurisdiction to review any matter having to do with impeachment. The defendants claim that the political question doctrine applies to this case, therefore it is nonjusticiable. For support, they cite the decision by the Court of Appeals for this circuit in Nixon v. United States, 938 F.2d 239 (1991).
The defendants' arguments under the political question doctrine have served to focus this Court's scrutiny on the words of the Constitution, specifically whether there has been a “textually demonstrable commitment” of all matters relating to impeachment to the legislative branch.
Of central importance are structural concerns about our constitutional system of government and what role if any judicial review of impeachment plays. In essence, this case presents a new version of Marbury v. Madison. The basic framework of our three-branch system is at issue.
A single branch of government claims to have uncontested dominion over another branch by arrogating to itself the unreviewable authority to interpret the Constitution Impeachment was never intended to be an ominous weapon that the legislature could hold over the head of [another branch] and invoke at will without limitation or reason.
Ours is a system of checks and balances. To allow impeachment without any check on its abusive use would destroy the independence the Founding Fathers intended the judiciary to have
An enormous body of law has developed around the concept of due process as it applies across American government. There is no question but that due process protections apply to congressional activities. … Watkins v. U.S., 354 U.S. 178, 188, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273 (1957) (Bill of Rights applies to Congressional investigations.)
The Constitution distinguishes impeachments from indictments, but presumably does so because the similarity is so great that there is a risk of confusion. The Founding Fathers clearly anticipated that an impeachment proceeding would strongly resemble a judicial proceeding. The Constitution itself spells out a number of procedural requirements for criminal and civil trials. Under the Sixth Amendment, a criminal defendant is entitled to a speedy, public jury trial. He is to have notice of the charges against him. He is entitled to confront the witnesses against him, and he is entitled to compulsory process to bring in witnesses in his defense. ... due process requirements for judicial trials fills volumes.
There is no reason to believe that the full panoply of due process protections that apply to a trial by an Article III court necessarily apply to every proceeding. Impeachment trials are unique, and are entitled to be carried out using procedures that befit their special nature. However, they must be conducted in keeping with the basic principles of due process that have been enunciated by the courts and, ironically, by the Congress itself.

The Hastings case was then consolidated on appeal, and remanded, in light of the holding in Nixon. On remand, the court stated:

“Even though this court is powerless to afford Judge Hastings any relief his case will have considerable historical significance and perhaps some day, after a dispassionate and non-political review of the case, this nation will reconsider the error perpetrated …. “

The procedure in the Senate was in some ways put beyond judicial review. Yet, that certain rights were recognized, even under Nixon. We haven't yet come to that "non-political" time when the wisdom of the words above has been fully recognized.

But, Jeff, IMHO, whether a subject of impeachment has no rights under the constitution other than those granted by a partisan Intelligence Committee just isn’t as clear as you contend. It certainly isn't frivolous to dispute that claim.

[[MacK]]

Is this anon the same as the other anon who launches random attacks - he sounds like it.

The impeachment proceedings in the House's best analogy is to a Grand-Jury proceeding - the latter will present an indictment (or "true bill"), the former Articles of Impeachment. The 6th Amendment does not apply to Grand-Jury proceedings, nor do the same evidentiary rules (for example hearsay.) The purpose of a Grand Jury proceeding is to determine if there is a case to be answered, ditto the House impeachment investigation. It really is pretty simple.

Trial is in the Senate, trial is in Federal District Court - don't conflate trial with the investigative process.

[anymouse]

Plain and simple, Trump's impeachable offense was that he beat Hillary Clinton in the 2016 election. The resistance just can't get over that.

[anon]

Welcome back indeed. Did you miss the nasty comments, the constant attempts to provoke personal arguments, the unnecessary restating of others' points as if they were his own?

[Bill]

I do not have any inclination to read all of this, but I hope that none of the anonymous posters want to see the identity of the whistleblower exposed,

[anon]

Bill

What should we conclude about persons calling an anonymous commenter on this site a "coward," or persons who refuse to acknowledge ANYTHING that an anonymous commenter states, but likewise believe that the "whistleblower" is entitled to anonymity?