The Constitution Doesn't Give Presidents Any Protections During Impeachment

[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.”

more...

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

[Hermit-The-Prog]

1. this needs to be pointed out on tv, too

TV is acting as a megaphone, again, for Trump and GOPers.

[Claritie Pixie]

2. Yep. It's not a trial. The House has sole power per the Constitution.

He and his flying monkeys know this, that's why they are trying to confuse Americans with a narrative of due process and Democrats overstepping.

It's all crap from the mouths of manipulators.

[Mike 03]

3. Exactly this.

"It's not a trial." Impeachment is not a criminal trial and the consequences to tRump are completely different. He doesn't face criminal punishment; he faces removal from office. (Hopefully, down the road, he WILL face criminal charges. At that time he will have all the rights an accused has.)

[underpants]

4. Nailed it

[progressoid]

5. The Constitution also doesn't say the Senate *has* to try him.

Can the Senate Decline to Try an Impeachment Case?

By Bob Bauer
Monday, January 21, 2019

...

But it is also possible that, in this time of disregard and erosion of established institutional practices and norms, the current leadership of the Senate could choose to abrogate them once more. The same Mitch McConnell who blocked the Senate’s exercise of its authority to advise and consent to the Supreme Court nomination of Merrick Garland, could attempt to prevent the trial of a House impeachment of Donald Trump. And he would not have to look far to find the constitutional arguments and the flexibility to revise Senate rules and procedures to accomplish this purpose.

The Constitution does not by its express terms direct the Senate to try an impeachment. In fact, it confers on the Senate "the sole power to try,” which is a conferral of exclusive constitutional authority and not a procedural command. The Constitution couches the power to impeach in the same terms: it is the House’s “sole power.” The House may choose to impeach or not, and one can imagine an argument that the Senate is just as free, in the exercise of its own “sole power,” to decline to try any impeachment that the House elects to vote.

The current rules governing Senate practice and procedure do not pose an insurmountable problem for this maneuver. Senate leadership can seek to have the rules “reinterpreted” at any time by the device of seeking a ruling of the chair on the question, and avoiding a formal revision of the rule that would require supermajority approval. The question presented in some form would be whether, under the relevant rules, the Senate is required to hold an impeachment “trial” fully consistent with current rules—or even any trial at all. A chair’s ruling in the affirmative would be subject to being overturned by a majority, not two-thirds, vote.

...

The Senate has options for scuttling the impeachment process beyond a simple refusal to heed the House vote. The Constitution does not specify what constitutes a “trial,” and in a 1993 case involving a judicial impeachment, the Supreme Court affirmed that the Senate’s “sole power” to “try” means that it is not subject to any limitations on how it could conduct a proceeding. Senate leadership could engineer an early motion to dismiss and effectively moot the current rule’s call for the president or counsel to appear before the Senate. The rules in place provide at any rate only that “the Senate shall have power to compel the attendance of witnesses”: they do not require that any other than the president be called. Moreover, the Senate could adjourn at any time, terminating the proceedings and declining to take up the House articles. This is what happened in the trial of Andrew Johnson, in which the Senate voted on three articles and then adjourned without holding votes on the remaining eight...

more...https://www.lawfareblog.com/can-senate-decline-try-impeachment-case

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic.

[Yo_Mama_Been_Loggin]

6. Kick

[NCLefty]

7. And queue Republicans demanding equality...