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

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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.

Steven Lubet is the Williams Memorial Professor at Northwestern University Pritzker School of Law. His most recent book is ‘Interrogating Ethnography: Why Evidence Matters.’

Read more by Steven Lubet

November 11, 2019

12:29 PM

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