Is Constitutional Due Process required in the Impeachment Proceedings?

Question

As Impeachment of the President rolls along, many Republicans assert that the President is being denied Constitutional Due Process. What Process (Procedures) are due in Impeachment hearings?

Answer 1

To: My Law Students and Bar Applicants

Re: Impeachment and Due Process

Date: Wednesday November 13, 2019

I often mention to my Law Students and Bar Applicants the palpable restrictions on the Due Process Clause. It is best understood- in my warped way of thinking- as a "spectrum disorder", somewhat a play on words. The Process Due (Procedures Due) depends and varies (indeed, floats), from one extreme to another, based on the nature of the proceedings and the gravity of the offense under consideration. It applies in both civil and criminal cases and in administrative (agency) hearings when a license or some other right is in jeopardy of being revoked or suspended. As you watch or read or hear about the impeachment hearings (impeachment is the probable cause hearing or quasi- grand jury & indictment; not the trial which the Senate conducts [under the transparently misleading label of "jurors"]) pay close attention to the due process arguments.

“Defensive" Republican talking points (already in memo form and leaked to the media), are that the President is not receiving constitutional "due process". You will hear this repeated over and over again.

Don't be misled and don't think you can learn anything about criminal or civil procedure by watching impeachment unfold. There are no rules in the Constitution regarding impeachment save (1) the Senate will try the case, (2) the Supreme Court Chief Justice will preside- more a parliamentarian than a judge, and (3) Senators must be sworn as jurors. Beyond that, virtually anything goes (though both branches of Congress will do their best to never get too far ahead of [or behind] public sentiment in terms of protections to be granted the President). Further, “High Crimes and Misdemeanors” also presents little in the way of a constraint. It means whatever Congress wants it to mean (though “bribery” is a different matter, as it is specifically enumerated).

For those concerned about the subjective nature of the law, consider the Roe v. Wade abortion opinion. There is no "privacy right" (women's liberty interest in their own bodies) per se in the Constitution (it is inferred/implied/or derived from the complete legal fiction of a "penumbra"). The Supreme Court simply felt that public opinion on the subject was sufficiently favorable that Roe v. Wade would be accepted without rioting in the streets. Public policy (public acceptance) completely overrode stare decisis. “Agenda” vs “Precedence” is a hallmark of many opinions rendered by the Supreme Court.

I think the impeachment hearings (Articles voted out of the House and presented to the Senate- followed by a quasi-trial before the Senate) are most closely aligned with administrative (agency) disciplinary hearings.

Let's take this to its logical extremes: There is no constitutional right for the President's counsel to appear or ask questions, proceedings may be secret (as with grand juries), there is no right to confront adverse witnesses, there is no set "standard of proof" or "burden of persuasion" as would be the case in a criminal or civil trial (preponderance, clear and convincing, beyond a reasonable doubt), the Rules of Evidence don't apply and quadruple hearsay is more than permissible, no Criminal or Civil Rules of Procedure apply, and the Senate could actually vote on the Impeachment Articles one to five minutes after the House presents the Articles to the Senate.

The above highlights the boundaries, or lack thereof, of generally acceptable behavior by Congress during impeachment proceedings. As there are no Rules of Impeachment Procedure, it is the "outrage" or the "lack of outrage" of the citizenry that will drive the "Procedures Due".