Following the publication of my Daily Caller op-ed last week, I received inquiries from a number of individuals about my claim that House Democrats may have violated President Trump’s Sixth Amendment rights.
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? (RELATED: Calabresi: House Democrats Violate The 6th Amendment By Denying Trump A Public Trial)
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.”
Impeachment proceedings against President Nixon were initiated on Oct. 30, 1973. Three months later, on Feb. 6, 1974, the House of Representatives formally gave its Judiciary Committee the power to investigate Nixon. Public hearings began on May 9, 1974, and weeks of nationally televised hearings followed. Only after two-and-a-half months of hearings did the House Judiciary Committee vote to approve three articles of impeachment against Nixon, at the end of July 1974. (RELATED: Farrell: Big Tech Is Censoring Judicial Watch For Talking About White House ‘Whistleblower,’ But It Won’t Stop Us)
Rep. Peter Rodino and the House of Representatives did not behave in that case like a mere grand jury. Rodino and the House of Representatives meticulously afforded Nixon all of his Due Process Clause rights and, in effect, his Sixth Amendment rights as well.
Impeachment proceedings against President Clinton were initiated on Oct. 8, 1998, after independent counsel Ken Starr had already conclusively proved with a full criminal law dossier that Clinton was guilty of perjury and of obstruction of justice thanks to DNA evidence on a blue dress of former White House intern Monica Lewinsky. Impeachment proceedings were held during the lame duck session of Congress after the mid-term election, and there was spirited floor debate.
Clinton did not deny that his DNA was on Lewinsky’s dress, but he argued that perjury about sexual relationships was not “a high crime and misdemeanor.” The House approved two articles of impeachment on Dec. 19, 1998. Clinton’s Due Process Clause rights and, in effect his Sixth Amendment rights, were meticulously observed. There was no denying the facts. The only question was whether they rose to the level of being a “high crime and misdemeanor.”
No House Democrat to date has identified a single criminal law that President Trump violated in his phone conversation with the President of Ukraine. So far, Trump has not been informed of the charges against him; he has not been able to confront the witnesses against him, nor has he been able to call witnesses in his own defense. Hopefully, House Democrats will change that situation now that public hearings are being held. Their behavior, as of last week, violated the impeachment precedents set in both the Nixon and Clinton proceedings.
Moreover, I should add that it is perfectly legal for the president to condition aid to Ukraine on Ukraine investigating credible charges of corruption by Joe and Hunter Biden. Trump had reasons to ask the Ukrainians about Hunter and Joe Biden, and members of both parties have questioned the conduct of both Bidens in these matters.
In fact, the inquiry into President Trump’s phone calls with Ukrainian leaders reveals an admirable effort on Trump’s part to make sure that Ukraine is dealing with its rampant corruption problems, which is endemic in that country. It is vital, as the steward of massive amounts of American aid money poring into Ukraine, for the president to make sure that that money is being spent honestly and not corruptly.
Steven G. Calabresi is co-author of “The Unitary Executive: Presidential Power from Washington to Bush,” and the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.