Last week, my colleague Northwestern Professor Steve Calabresi published an op-ed raising issues about the procedural fairness of the impeachment hearings. He met with strong attacks, including by my Volokh colleague, Professor David Post.
At the Daily Caller, Calabresi has now updated his original arguments on the issue:
Numerous critics have contacted me arguing that Sixth Amendment rights would apply to President Trump in a Senate trial, but not in a House proceeding. But why were Presidents Nixon and Clinton given Sixth Amendment rights in their House impeachment proceedings which President Trump is being refused? The House of Representatives may function only as a grand jury in impeachment proceedings, in which case House Democrats may have been violating Trump's Fifth Amendment Due Process Clause rights by leaking damaging information about him as the result of a secret investigation in which the charges have not been revealed. He has not been able to confront the witnesses against him, and he has not been able to call witnesses in his own defense. I say the House of Representatives may function as a grand jury in cases of impeachment because in some respects the impeachment process is sui generis. In both the Nixon and Clinton impeachment proceedings, the House gave presidents their Sixth Amendment rights. The House did not in those proceedings leak damaging information to the press obtained in a secret proceeding. Nixon and Clinton were informed of the charges against them, they were able to confront witnesses against them, and they were able to call witnesses in their own defense. There is quite simply no question, at all, that impeachment cases in England were criminal law proceedings. They usually ended up with the House of Lords pronouncing the death penalty or life imprisonment as its sentence. Article III, section 2, paragraph 3 explicitly states: "The Trial of all Crimes, except in cases of Impeachment, shall be by jury." Sixth Amendment rights, in turn, attach "In all criminal proceedings" and Fifth Amendment Due Process Clause rights apply to grand jury proceedings in which it is illegal to secretly leak grand jury information to the press. The framers of our Constitution limited the Senate's power to punish impeached officials to removal from office and disqualification from holding office in the future. That does not change the criminal nature of an impeachment case, which the Senate hears as a Court of Impeachment. Removal from office can only happen if the Senate finds that President Trump has committed "Treason, Bribery, or other high Crimes and Misdemeanors."
I haven't gone through the arguments pro and con with care, but the question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required.
We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today. Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal. One should also remember that grand juries are often criticized as being fundamentally unfair (e.g., "ham sandwich")–and with grand juries, proceedings are secret and leaking testimony is a crime.
Here having public hearings, while allowing only one side of the story and prohibiting the Republicans from calling their own witnesses, makes the hearings less like a trial or a grand jury and more like a show trial.
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