Thread by @CBHessick

In light of the President’s latest crazy tweet about impeachment, I think it is worth talking about what “due process” is necessary at this point in time. It’s easy to point to past impeachments and say the House is acting differently, but that doesn’t mean more process is due...

As a constitutional matter, the idea of due process means that people should get certain procedural protections if they are going to be denied of life, liberty, or property.
Let’s assume the presidency falls within one of those three categories—what procedures are required?

The response on the left has been that the text of the Constitution gives the power of impeachment to the House, and so the House can use whatever rules it wants.
I don’t have an informed view on that constitutional issue, but I don’t think it’s a very satisfying answer.

What’s more, I don’t understand why folks on the left are giving this unsatisfying answer when there’s a pretty devastating legal answer—that the House is giving the same procedural protection as what a person facing a prison sentence would receive—and he isn’t entitled to more.

Let me explain: The amount and type of process that a person is entitled to depends on what is at stake. (The Supreme Court case on this issue is Matthews v Eldridge.) A person whose liberty is at stake is entitled to more process that a person who just has property at stake.

It's not clear where impeachment falls on this sliding scale, but I can't imagine that it requires more process than a criminal case, in which a defendant could be deprived of her liberty.
So what sort of process is due in a criminal case? The process that Trump asks for?

At this point, the House is conducting an investigation--interviewing witnesses and collecting documents--to decide whether to impeach. If they impeach, the Senate would hold a trial.
Analogizing to a criminal case, this is like a grand jury investigation.

So what rights does a criminal defendant have at a grand jury investigation?
The right to have a vote of some sort before the grand jury hears evidence?
No way -- empaneling a grand jury is a decision that is made unilaterally by the prosecutor.

What about all of these rights from White House counsel Pat Cipollone's Oct. 8 letter?
Also a big no.
Defendants don't get any of this information before the grand jury votes to indict, and even after indictment, access to this info is limited.
And defense counsel can't sit in.

Let's be clear: An impeachment is different than a criminal trial. And I have qualms about drawing too many analogies between the two processes.
But I don't see a credible argument for how DUE PROCESS guarantees a president more process than someone facing life in prison.

And yes, I know, that Trump's due process claims are really just about politics.
But the political force of that argument depends, quite explicitly, on its appeal to constitutional rules and norms. It's an effective political argument because it's framed as a legal argument.

So that's why I think that the primary response to the due process argument is to blow it up on the merits.
Sure, the House has political power. But Trump's argument is that they're abusing this power.
So why not point out that his legal argument is so wrong that it's silly.