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Mon Nov 11, 2019, 04:07 PM

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


The Conservative Legal Community Is Grasping at Straws to Defend Donald Trump
An article from Federalist Society board chair Steven Calabresi misapplies constitutional amendments about jury trials to the impeachment inquiry.
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.


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.

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Reply The Conservative Legal Community Is Grasping at Straws to Defend Donald Trump (Original post)
babylonsister Nov 11 OP
gratuitous Nov 11 #1

Response to babylonsister (Original post)

Mon Nov 11, 2019, 04:25 PM

1. They've decided "due process" is the way to go

It sounds good until you actually think about it, and if you have even a nodding acquaintance with the Constitution. Either Calabresi is utterly ignorant of the Constitution or he's making a cynical ploy to create a controversy where none exists. This Federalist Society is the little boutique of horrors Republicans use to fill federal judgeships. Ignorant or cynical? Not really qualities the American people want in their judges.

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