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Opinion

Opinion: Sorry, Mr. President, the House is giving you far more due process than the Constitution requires

Speaker Nancy Pelosi, gavel in hand, presides over the House of Representatives.
Speaker Nancy Pelosi (D-Calif.) gavels the close of a vote by the U.S. House of Representatives on a resolution formalizing the impeachment inquiry into President Trump.
(Win McNamee/Getty Images)

President Trump and his supporters continue to complain that the House of Representatives is denying him due process. But in fact, every part of the inquiry to date has been in line with constitutional mandates, and the impeachment procedures adopted by the House of Representatives on Thursday go well beyond what the Constitution requires.

The Constitution says very little about how impeachment proceedings are to be conducted. The document specifies that the president, as well as federal judges and other officers of the United States, can be impeached for “treason, bribery, or other high crimes and misdemeanors” and gives the House of Representatives sole power to impeach. If a majority of the House votes for impeachment, there is then a trial in the Senate, which is presided over by the Chief Justice of the United States. It takes a two-thirds vote of the Senate to remove the president from office.

That’s it; that’s all the Constitution tells us about the procedures that must be followed. So long as these few rules are followed, it cannot be said that Congress is violating the Constitution. Trump and White House Counsel Pat Cipollone have said that the Constitution required a House resolution to authorize an impeachment inquiry, but they’re wrong.

Even now that Congress has passed such a resolution, Trump still insists he is being denied due process. But there is no basis for that claim either. Due process applies only if a person is being deprived of life, liberty or property. House impeachment hearings certainly don’t deprive the president of any of those interests.

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Even though there was no requirement that the House do so, the resolution it passed sets out procedures that meet the requirements for due process. The proceedings will be in public. Both Democrats and Republicans will ask questions of every witness. Both sides can call witnesses. The procedures to be followed are much like those used in the Clinton and Nixon impeachment proceedings, though there was less fact-finding in the Clinton impeachment because of the detailed report of Whitewater Special Counsel Kenneth Starr.

In many ways, the House of Representatives functions likes a grand jury in a criminal case, and an impeachment often has been likened to an indictment. As with the grand jury, the House decides whether there should be a trial. But the usual requirements of due process never have been found to apply at the grand jury stage precisely because there is no deprivation at that point. In fact, grand jury proceedings in many ways are the antithesis of due process: only the prosecution is present; the defendant is not allowed to call witnesses or present evidence; everything is done in secret.

In the Trump investigation, unlike the Nixon impeachment, there is much less uncertainty about what happened. The constant question in that inquiry was what did the president know and when did he know it. There was a clear answer only once the Supreme Court ordered the release of the White House tapes, which occurred after the House Judiciary Committee had voted articles of impeachment against Nixon.

With regard to President Trump there is little dispute over what occurred in at least one key instance. In a conversation with Ukrainian President Volodymyr Zelensky about the United States giving Ukraine $400 million in military aid, Trump said, “I would like you to do us a favor though.” Although he later tried to back away from his statement, White House Chief of Staff Mick Mulvaney publicly acknowledged that this was a quid pro quo, linking assistance for Ukraine to its willingness to investigate Joe Biden and his son.

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Ultimately, this impeachment inquiry is not really about what happened, but rather whether such presidential conduct is a sufficient abuse of power to constitute “high crimes and misdemeanors.” With so little dispute about the underlying facts, the president and his supporters have taken to attacking the process.

But the process provided in Thursday’s resolution complies with everything the Constitution requires and comports with how past impeachment inquiries have been conducted. It is powerful rhetoric to say the House is acting unconstitutionally and denying due process. But there is just no legal basis for these claims.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.


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