Impeachment has been the topic of heated discussion in recent weeks. On one hand, some are calling for immediate impeachment of the President and for his removal from office. Others describe the current investigation as a “witch hunt” and the procedures as “illegal” and “unconstitutional.” As a life-long civil libertarian, I cannot avoid adding my thoughts. I cannot claim that they are particularly original, for I have seen many of them expressed by others in recent weeks. I seek only to organize and present them in a different manner.
Impeachment is a constitutionally authorized process, but that document contains only vague substantive guidelines and no procedural guidelines. “High crimes and misdemeanors” is a phrase that may be interpreted in many ways. However, it has historically not be interpreted as including only violations of statutory law. One can only wait to review any articles of impeachment adopted by the House of Representatives to do determine whether the alleged behaviors constitute an offense. Those who have already convicted the President have their own list of offensive behaviors, but these may or may not be the behaviors cited by the House. Will the language used in the telephone call with the President of the Ukraine be the only behavior included, or will other behaviors deemed to be “obstruction of justice” be included as well? It is wise to wait and see.
The President deserves procedural due process of law as does any other participant in American judicial proceedings. I recognize that impeachment proceedings are not, strictly speaking, judicial, but considering them to be so allows us to provide important procedural protections.
As many legal scholars have pointed out, procedural due process guarantees apply to a large degree during trial. These include the right to confront ones accuser, the right to counsel, the right to a speedy trial, etc. In an impeachment, the trial is that event which occurs with the Senate as jury and the Chief Justice of the Supreme Court as the trial judge. We are not yet at that stage.
What is occurring now is an investigation. Witnesses do not have a right to counsel. The proceedings do not have to be in public, and, indeed are usually not. Technically, there is no accuser, because no formal accusation has been lodged. Nothing that occurs so far seems to violate any statute nor any constitutional provision. In fact, the presence supporters of the President and their ability to ask questions during depositions goes well beyond normal due process protections.
The release of transcripts of witness testimony and the conducting of open hearings as the next stage add elements of transparency which are politically valuable but not required by statute or the Constitution. The current process can, I believe, be compared to the preparation for submitting potential charges to a grand jury. In this situation, the grand jury would be the House of Representatives. It is that body that determines whether the charges warrant a trial.
The accused has no right to be present, to be represented by counsel, or to call witnesses before a grand jury. The fact that current and former impeachment rules adopted by the House permit the active participation of members who support the President and allow those supporters to ask to have witnesses appear represents a recognition that this is not a normal judicial proceeding and that a more generous procedure is called for.
If Articles of Impeachment are adopted, the matter passes to the Senate for trial. Ordinarily, jurors would be carefully screened to determine prejudice including close association with the prosecution or the accused. Obviously, the Senate fails this test. It is a partisan body. Few expect it to carefully listen to the evidence presented and to render a verdict based upon that evidence alone. Most of us expect Democrats to vote for removal and Republicans to vote for acquittal. There will be exceptions, but they will be insufficient in number to alter the outcome.
Much of the current rhetoric is clearly partisan wind. “There was no ‘quid pro quo.'” “There was ‘quid pro quo’, but it was not illegal.” “Soliciting information about a political opponent from a foreign government is not illegal, because that information is not ‘something of value.'” “Refusal to testify before House committees is a permitted defense of the President’s executive powers under Article Two of the Constitution.”
The first three statements clearly assume that the call with the Ukrainian president and the events preceding it will form the basis of any House resolution of impeachment. That is probably the case, but a competent defense will wait until they know, specifically, what the charges are before formulating a defense. This politically difficult in the current situation, but some discipline in this area would benefit the President and his defenders.
The final defense is focused on potential obstruction of justice charges. It raises constitutional questions which will have to be resolved by the Supreme Court. I am sure that most of them are not looking forward to the task. To me, Article Two provides no such protection, and my reading of constitutional history tells me that most of the “founding fathers”, however you choose to define them, would be horrified by the monarchical implications of such a claim.
In spite of the search for instant headlines in the media and sharp changes in polling results, it is prudent to sit back and wait for the process to unwind. Consider the number of people who have been portrayed as clearly guilty by the media but who have, in fact, been innocent of the particular offense with which they have been charged. What will the final charges be? What evidence will be offered in support of them? What defense will be mounted to these specific charges? What did the Senate decide, and how did those individuals explain their decisions?
I think one aspect that makes all of this difficult is that the activities in question are not common to the general public. Perhaps it would clarify things if we define the offer of a White House meeting with the President in exchange for investigating the Joe and Hunter Biden as quid pro quo and withholding approved/authorized/appropriated military aid as extortion.