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11/14/2019

Steven Calabresi on the Impeachment Process (and Responses) (Updated)
Michael Ramsey

At the Daily Caller, Steven Calabresi (Northwestern):  House Democrats Violate The 6th Amendment By Denying Trump A Public Trial.  The "public trial" point has been a bit overtaken by events as the House process is now public, but the essential claim remains relevant -- that the Sixth Amendment requires the procedures of a criminal trial.  For example:

Moreover, the Sixth Amendment guarantees Trump the right “to confront the witnesses against him”, which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right.

Commentators have pushed back hard, including David Post at Volokh Conspiracy -- Impeachment and the Sixth Amendment -- and Steven Lubet at the Faculty Lounge and the American Prospect:  No, The House Impeachment Proceeding Is Not Unconstitutional.  From the latter: 

Calabresi argues that “Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him.” He then sets out the basic rights afforded to criminal defendants under the Sixth Amendment, and asserts that these rights have been denied to the president by the House of Representatives.

The opening words of the Sixth Amendment—“In all criminal prosecutions”—make it unmistakable that its provisions do not apply to impeachments, which are clearly noncriminal in nature. Impeachment by the House and conviction by the Senate cannot result in imprisonment, fine, or any other criminal penalty. Rather, the only allowable consequences are removal from office and disqualification from future office-holding.

A full reading of the Sixth Amendment makes it even more obvious that it cannot, by its own terms, apply to congressional impeachments. Calabresi complains that the House of Representatives has denied Trump the rights of confrontation and public trial, but another provision of the Sixth Amendment guarantees trial by “an impartial jury of the State and district wherein the crime shall have been committed.” Impeachments, of course, are tried by the Senate, per Article I, Section 3, with no requirement of impartiality. ...

Professor Calabresi is a highly respected originalist scholar, so I hate to pile on -- but I think the critics are right, at least as to the Sixth Amendment.  Impeachment is not a "criminal prosecution" so the Sixth Amendment does not apply.  In addition to the points made by Professor Lubet, I'd add that Article I, Section 3, in the final paragraph, makes clear that persons convicted in an impeachment proceeding remain "subject to Indictment, Trial, Judgment and Punishment, according to Law" -- that is, subject to a separate criminal prosecution.  Double jeopardy does not bar the second prosecution because the first prosecution (the impeachment) isn't a criminal prosecution.

If there is anything to Professor Calabresi's argument, it doesn't come from the Sixth Amendment.  Rather it comes from the word "impeachment."  It's possible that historically "impeachment" was understood to carry the same procedural rights as an ordinary criminal trial (or at least the core ones such as confrontation, though not -- obviously -- a jury).  One would need to look at procedures under English impeachment law and practice, the American reaction to them, and American commentary and practice after ratification.  Professor Calabresi does not provide any of this, and I doubt (but without having looked into it closely) that such an argument could be sustained.

Rather, I think the House impeachment process is entirely political; the Constitution doesn't require anything apart from a majority vote.  From the Constitution's text, anyway, it appears the House could impeach a President merely on the basis of something its members read in the New York Times, without any hearings at all.  (The modern fetish for hearings is just that -- a modern fetish).  Of course the integrity and fairness of the process (or lack thereof) may influence the Senate and popular opinion as to whether to take the impeachment seriously.  And commentators and defenders of the President are free to point out any lack of integrity and fairness.  But that does not make it a constitutional question.

In the Senate, it may well be a different matter.  Article I, Section 3 refers to the Senate's power to "try" impeachments with the potential outcome being a "Conviction."  This is the language of a criminal trial.  That does not mean the process in the Senate is a criminal trial; the stated remedies are not criminal penalties.  But the parallel language may suggest that the framers understood the basic procedures of a criminal trial to also apply in an impeachment trial.  As indicted above, a complete argument in this direction would include an examination of pre- and post-ratification history.  It seems much more promising, however, than the argument regarding House procedures.

(As an aside, I wonder if Professor Calabresi is more clever than his critics realize.  By taking the position that the House impeachment process is akin to a criminal prosecution, with the attendant protections, he leads critics such as Professors Post and Lubet [and me] to state clearly that it is not such a proceeding, and in fact is it instead wholly political.  Perhaps that is the point he really wants to make: that the House process, lacking the procedural protections we typically expect, is indeed wholly political and should not be given the respect we accord a criminal inquiry.)

UPDATE:  Professor Calabresi responds to critics in an update to his post.  His main arguments are (a) that Sixth Amendment type procedures were used in the Nixon and Clinton impeachment hearings, and (b) impeachment trials in eighteenth-century England had criminal punishments (including execution).

These points do not seem to add much, as (a) that such procedures were used does not shown (especially as an original matter) that they are constitutionally required, and (b) the English situation is obviously different as the Constitution specifically precludes criminal punishments in impeachment trials.

Via Jim Lindgren at Volokh Conspiracy, who adds: 

... [T]he 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.