The Constitution Doesn't Give Presidents Any Protections During Impeachment [View all]

[babylonsister]

Nov. 4, 2019, at 10:23 AM
The Constitution Doesn’t Give Presidents Any Protections During Impeachment
By Amelia Thomson-DeVeaux



Republicans’ defense of President Trump’s pressure campaign with Ukraine has so far been much more about process than substance. Trump’s allies have talked a lot about the unfairness of the Democrats’ impeachment inquiry, in which, as they tell it, Trump is a beleaguered defendant deprived of his due process rights. In the words of Senate Majority Leader Mitch McConnell, Democrats have cut Trump’s lawyers “out of the process in an unprecedented way.”

The basic sentiment is that the president is being railroaded. But the reality is that when it comes to impeachment, there aren’t any protections for the president laid out in the Constitution. In fact, experts told me that pretty much any rights Democrats give Trump are above and beyond what they’re required to do. Trump hasn’t been charged with a crime and impeachment isn’t a legal proceeding, so he doesn’t have any of the rights you hear about on “Law and Order,” including due process. In the world of impeachment, “fairness” means whatever the majority party in the House of Representatives thinks it should mean.

This means the impeachment process is pretty much destined to give the president less power than he would like, and Trump is no exception. Richard Nixon and Bill Clinton also fought for their lawyers to have a bigger role in the proceedings, and ended up with the ability to participate in some way. Similarly, the impeachment resolution that passed Thursday did lay out some ground rules that include Trump’s legal team. As was the case in both Nixon and Clinton’s impeachment proceedings, when the process moves to the Judiciary Committee, Trump’s lawyers will be able to cross-examine and suggest witnesses and present a formal defense.

But unlike previous impeachments, the first round of public hearings will happen in the House Intelligence Committee, where Trump’s legal team wasn’t given a role, before the Judiciary Committee begins to weigh articles of impeachment. That might seem like a break from the past, but it’s important to remember that House Democrats don’t have a special counsel investigation to work from, and they’re still in the process of collecting and presenting evidence. That doesn’t mean that Republicans won’t get some mileage out of continuing to hammer the Democrats’ procedures as unfair. Impeachment may inevitably seem like something of a one-sided process — because that’s how it was designed.

Constitutionally, the president has no rights in an impeachment inquiry

It’s easy to see a presidential impeachment as something akin to a criminal prosecution — evidence is marshaled, a trial is held, and the president’s fate hangs in the balance. But impeachment is a political process, not a legal one. As a result, it has entirely different rules that make certain protections that are reserved for criminal defendants — like due process — irrelevant. “As a matter of law, a president has essentially no claim to any kind of participation in the impeachment process,” said Frank Bowman, a law professor at the University of Missouri and the author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.”

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https://fivethirtyeight.com/features/what-rights-does-trump-have-in-the-impeachment-process/?fbclid=IwAR1uCrnkR3vlmbCMNyIgU8OKoT0XE7igpYGCy319pqpCCFhBYjbk1f7xTu0