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.
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