October 23, 2019

Impeachment Due Process Failures


  • The House Democratic leadership’s impeachment inquiry has failed to live up to the neutral standards set by the impeachment inquiries of Presidents Clinton and Nixon.
  • The vast majority of the elected officials of the U.S. government cannot see the evidence being gathered behind closed doors.
  • The investigators have denied the president’s legal team basic due process, including the right to rebut one’s accusers, challenge the evidence produced, and understand the scope of the investigation.

The impeachment inquiry launched by House Democrats on September 27 has broken from the precedents set by the Nixon and Clinton inquiries, and is running roughshod over the rights of both the president and members of Congress. The founders well understood the necessity for a careful, transparent impeachment process. In Federalist Number 65, Alexander Hamilton wrote, “The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.” By running an inquiry without set rules and withholding evidence from rank-and file members of both parties, House Democratic leadership has committed the process entirely to a select few while denying the president the basic rights ordinarily guaranteed by our legal system.

Impeachment Due Process Failures

an impeachment inquiry without most of congress

By declaring an impeachment inquiry with no formal authorization, House Democratic leadership has created a process unmoored from precedent and procedure. The result is that almost no one – not most members of Congress, not the president and his attorneys, and not the public at large – knows what the inquiry is actually looking into or what it is finding.

This impeachment inquiry, largely led by the House Intelligence Committee, has conducted many of its depositions in the House’s Sensitive Compartmented Information Facility. It is unclear how much classified information is actually discussed in these meetings, since the president declassified the contents of his phone call with the Ukrainian president as well as the original whistleblower complaint.

Conducting depositions in the SCIF allows House Democratic leadership to keep the proceedings secret from all members of Congress not on the right committees, irrespective of whether any classified material is actually disclosed in the depositions. House Democratic leadership can then selectively leak information, allowing only one side to air its case while keeping the president’s team in the dark about what is really being said. Unlike previous impeachment inquiries, this one is apparently not being led by the Judiciary Committee, which is generally far more transparent than the Intelligence Committee.

Impeachment Due Process Failures

The secret nature of the inquiry is just one of the many departures from precedent House Democratic leadership has sanctioned. The House of Representatives has not voted on a resolution to open a formal impeachment process, a step it took in the previous presidential impeachment inquiries for Presidents Nixon, and Clinton. Members of the House have had no opportunity to discuss or vote on how the impeachment inquiry should proceed, what its scope should be, and who should conduct it. There are no established rules to guide the inquiry. The absence of a public vote has removed accountability for the inquiry’s supporters. 

Ordinary courtesies extended to the minority in the Nixon and Clinton impeachments have been ignored this time around. The ranking members of the relevant committees have been denied the right to issue their own subpoenas to ensure Congress has the full picture of what happened. The ranking members also have been given no right to demand a vote of the full committee on subpoenas. The one-sided nature of the inquiry makes it less likely to gather the full truth.

Ignoring Basic due process

The basic right of a defendant in a criminal trial to face his accusers goes back at least as far as Roman times. This impeachment inquiry has denied that basic right to the president, along with several other fundamental legal protections.

The House inquiry has denied the president’s legal counsel the right to attend all depositions and hearings, provide its own evidence, object to the admission of evidence, cross-examine witnesses, and recommend other witnesses for the inquiry to consider. These failures all stand in contrast to the impeachment inquiries of Presidents Nixon and Clinton. In those cases, the House Judiciary Committee passed clear resolutions outlining the rights of the defense.

Impeachment Due Process Failures

The current impeachment inquiry also has infringed on the president’s right to assert executive privilege in unprecedented ways. President Clinton had the opportunity to make numerous claims of privilege during the Whitewater investigation that were fully litigated in federal court. However, under House Intelligence Committee Chairman Adam Schiff, investigators have threatened that any “failure to appear” in response to a letter requesting a deposition “shall constitute evidence of obstruction.” Democratic leaders in the House are reportedly considering including an impeachment charge based on obstruction of the investigation.

To argue that the assertion of executive privilege is itself impeachable obstruction is an extreme position that the House rejected in 1998. Then-Rep. Chuck Schumer strongly criticized that view in 1998 during the Clinton impeachment inquiry.


Issue Tag: Judiciary