Given all the talk of "due process" and "Sixth Amendment," and demands like the below (and the House Republican's ridiculous witness list), here's a short thread on how Trump and Republicans are misrepresenting legal concepts to demand an illogical process.
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For starters, there aren't any procedural rules or rights for impeachment. Andrew Johnson was swiftly impeached with articles drawn up later: nps.gov/anjo/learn/his…
There aren't any court-enforceable rights in a Senate removal trial, either. It's a "political" process.
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There aren't any court-enforceable rights in a Senate removal trial, either. It's a "political" process.
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But there are political reasons for the House or Senate to afford the President some rights drawn from other proceedings.
If impeachment was like a criminal grand jury, the President would have one right: he could take the Fifth. Otherwise, not much. /3
If impeachment was like a criminal grand jury, the President would have one right: he could take the Fifth. Otherwise, not much. /3
In a federal grand jury, hearsay is allowed, and the prosecutor isn't required to present exculpatory evidence (there's a DOJ policy to show it if a prosecutor is "personally aware of substantial evidence that directly negates the guilt of a subject"). justice.gov/jm/jm-9-11000-… /4
The resolution passed by the House goes way beyond normal criminal *investigation* protections (distinct from criminal *trial* protections), and lets the President participate. Grand juries don't allow defense attendance, cross-examination, or presentation of evidence. /5
What the House is doing is more like the pre-trial discovery process in a civil case. And, yes, civil cases include penalties (like adverse inferences) if a party refuses to cooperate, even where the party has a Fifth Amendment right. /6 litigationandtrial.com/2013/04/articl…
So Trump is getting the participation benefits of a civil discovery process (and wants more, by calling witnesses who have no first-hand knowledge of Trump's conduct), yet also demands the refusal rights of a criminal investigation, without even explicitly taking the Fifth. /7
Of course, this "process" demanded by Trump and the GOP—if it can be called a "process," since it's just a series of ad hoc demands to favor Trump—has no analog anywhere in American civil or criminal law. There's no legal process where you get only have the parts you like. /8
And if we were in a civil or criminal process, there would be severe consequences for witnesses like Giuliani refusing to testify while also *not* taking the Fifth, and the below would be more than enough to survive any motion to dismiss before trial. /end
