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The Constitution Doesn’t Give Presidents Any Protections During Impeachment

Republicans’ defense of President Trump’s pressure campaign with Ukraine has so far been much more about process than substance. Trump’s allies have talked a lot about the unfairness of the Democrats’ impeachment inquiry, in which, as they tell it, Trump is a beleaguered defendant deprived of his due process rights. In the words of Senate Majority Leader Mitch McConnell, Democrats have cut Trump’s lawyers “out of the process in an unprecedented way.”

The basic sentiment is that the president is being railroaded. But the reality is that when it comes to impeachment, there aren’t any protections for the president laid out in the Constitution. In fact, experts told me that pretty much any rights Democrats give Trump are above and beyond what they’re required to do. Trump hasn’t been charged with a crime and impeachment isn’t a legal proceeding, so he doesn’t have any of the rights you hear about on “Law and Order,” including due process. In the world of impeachment, “fairness” means whatever the majority party in the House of Representatives thinks it should mean.

This means the impeachment process is pretty much destined to give the president less power than he would like, and Trump is no exception. Richard Nixon and Bill Clinton also fought for their lawyers to have a bigger role in the proceedings, and ended up with the ability to participate in some way. Similarly, the impeachment resolution that passed Thursday did lay out some ground rules that include Trump’s legal team. As was the case in both Nixon and Clinton’s impeachment proceedings, when the process moves to the Judiciary Committee, Trump’s lawyers will be able to cross-examine and suggest witnesses and present a formal defense.

But unlike previous impeachments, the first round of public hearings will happen in the House Intelligence Committee, where Trump’s legal team wasn’t given a role, before the Judiciary Committee begins to weigh articles of impeachment. That might seem like a break from the past, but it’s important to remember that House Democrats don’t have a special counsel investigation to work from, and they’re still in the process of collecting and presenting evidence. That doesn’t mean that Republicans won’t get some mileage out of continuing to hammer the Democrats’ procedures as unfair. Impeachment may inevitably seem like something of a one-sided process — because that’s how it was designed.

Constitutionally, the president has no rights in an impeachment inquiry

It’s easy to see a presidential impeachment as something akin to a criminal prosecution — evidence is marshaled, a trial is held, and the president’s fate hangs in the balance. But impeachment is a political process, not a legal one. As a result, it has entirely different rules that make certain protections that are reserved for criminal defendants — like due process — irrelevant. “As a matter of law, a president has essentially no claim to any kind of participation in the impeachment process,” said Frank Bowman, a law professor at the University of Missouri and the author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.”

To be fair, the Constitution is pretty spare in its description of how impeachment works. It gives the “sole power of impeachment” to the House of Representatives and the “sole power to try impeachments” to the Senate but it doesn’t say much more, beyond the fact that Congress’s power is limited to removing someone from office — a point the founders wanted to stress, since in England at the time, an impeachment conviction could lead to execution.

And there hasn’t been much elaboration since. The Supreme Court weighed in on the Senate’s procedures for impeaching judges back in 1993, but the justices ruled that the question of how the Senate was conducting its impeachment trials was a political one, and therefore beyond their power to decide. “The consensus was that it would take something extraordinary, verging on deciding the outcome with a coin-flip, to allow the justices to intervene and say the Senate was doing things wrong,” Bowman said.

Trump isn’t trying to take the House impeachment inquiry to the Supreme Court — at least, not yet. But Bowman said the bar for challenging the House’s procedures would likely be even higher, because it doesn’t have the power to remove anyone from office.

But presidents do typically get some protections

Of course, there are both high-minded and pragmatic reasons why Congress might want to allow the president to defend himself from impeachment — which is why Nixon, Clinton, and now Trump were all given some kind of role. After all, Trump is not the first president to claim that he is being treated unfairly, and a straightforward way to deflect that kind of criticism and shore up the perceived legitimacy of the process is to give the president’s legal team a voice in the process.

The protections outlined for Trump and his legal team in the House resolution are actually pretty similar to the rules laid out for Nixon and Clinton, according to Sarah Binder, a political science professor at George Washington University who studies Congress. If the impeachment process makes its way to the House Judiciary Committee, which seems likely, Trump’s lawyers will be able to question and suggest witnesses, request evidence, and ask questions — just as Nixon’s and Clinton’s lawyers did before him.

All of these protections only kick in when impeachment moves into the Judiciary Committee, though — and unlike past impeachments, a significant portion of the action this time around will happen outside that committee. Importantly, Trump’s lawyers won’t be allowed to participate in the next phase of the inquiry, which will involve public hearings run by the House Intelligence Committee. But Binder said that made sense, because unlike the House majority in the Nixon and Clinton impeachments, Democrats don’t have a voluminous special counsel probe to draw from, so the next round of hearings are arguably the public distillation of the House’s investigation, not its case for impeachment. On a practical level, though, it means that Trump’s legal team likely won’t be able to get involved for several weeks — which leaves plenty of time for his defenders to complain about how he’s been boxed out of the process.

There’s one big caveat that didn’t loom over past impeachment proceedings. The resolution specifies that those privileges can be yanked at any time if the Trump administration doesn’t willingly cooperate with providing witnesses for testimony or documents. It’s a pointed addition, given that the Trump administration has so far issued a blanket refusal to cooperate with the inquiry, including blocking a raft of witnesses from appearing for testimony.

How the Trump administration uses its protections, of course, remains to be seen. Nixon’s lawyer was integrally involved in the House Judiciary Committee’s investigations in 1974, although Clinton’s lawyer’s main appearance in Congress happened toward the end of the process, when the articles of impeachment had already been drafted. The Trump White House, to be sure, is still insisting the entire process is unconstitutional, and it’s hard to imagine them changing their tune anytime soon.

But even if Democrats aren’t actually prepared to follow through on their threat to cut off Trump’s lawyers’ access to the hearings — which could appear to validate the criticisms of their process — it’s a reminder that they are decidedly in the driver’s seat. Trump might feel that the impeachment process is unfair, but if it is, it’s because the Constitution made it that way.

CORRECTION (Nov. 4, 2019, 3:33 p.m.): A previous version of this article incorrectly identified where the public impeachment hearings will start. They will begin in the House Intelligence Committee, not the Senate Intelligence Committee.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

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