The results of the impeachment inquiry are likely to be unreliable unless the House grants President Donald Trump the right to due process, says a leading constitutional expert.
Professor Robert G. Natelson, who heads the Independence Institutes Constitutional Studies Center and has been a law professor for 25 years, said the House is taking a political risk by not giving Trump the same due process given to every American citizen, adding that without these safeguards the House is likely to come up with impeachment charges that are not suitably based in law.
“Its not supposed to be surrounded by the attitude of lets go get them,” Natelson told The Epoch Times. “Its a very serious matter because it impairs the Presidents ability to govern. It distracts the president from his duties. It can undercut the credibility of the president in foreign affairs.”
“Especially in a case like this, where the correspondence between President Trump and President Zelensky was the pretext for initiating impeachment proceedings. I dont know that weve ever had a case with a presidents conduct of foreign policy has been questioned as an impeachable offense,” he said.
Natelson said there might not be a strong basis for the accusations against Trump because the credibility of facts obtained without due processes such as open proceedings or cross-examination is likely to be weaker.
“When you dont allow the president to have counsel when you dont have open proceedings, where someone can say: Hey, you know, really do you want to go down this road or if there are some additional facts that should be brought to your attention. You are likely to come up with a conclusion that is not very good,” he said.
“One of the reasons we have due process is because weve learned from centuries of history that due process results in more reliable conclusions,” he continued. “So when you have only one side being represented, where you dont have cross-examination, you dont have protections against hearsay evidence, for example, you dont have protections against other reliable kinds of evidence, [then] youre likely to come up with an impeachment charge that is not well-grounded.”
House Democrats have been repeatedly criticized by the White House and opponents of impeachment for the way the inquiry was launched and for the lack of transparency in the inquiry process. Three committees leading the investigations—intelligence, foreign affairs, and oversight—have pushed forward with their inquiry by subpoenaing documents and numerous witnesses to give testimony in closed-session hearings.
Meanwhile, Pelosi has refused to hold a vote to authorize the impeachment inquiry, saying that it was not necessary. Republican lawmakers have called on Pelosi to suspend the inquiry until “transparent and equitable rules and procedures” are established. They have questioned the Democrats over the inability of Republicans to subpoena witnesses as part of the inquiry (pdf).
Moreover, in a letter on Oct. 8, the White House told the House that it would not participate in its inquiry because it “violates fundamental fairness and constitutionally mandated due process.”
“You have denied the President the right to cross-examine witnesses to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans,” White House counsel Pat Cipollone wrote in the letter.
“You have conducted your proceedings in secret. You have violated civil liberties and the separation of powers by threatening Executive Branch officials, claiming that you will seek to punish those who exercise fundamental constitutional rights and prerogatives. All of this violates the Constitution, the rule of law, and every past precedent.”
Natelson, whose research on the Constitution has been repeatedly cited by the U.S. Supreme Court, said that he agrees with Cipollone that the procedure the House has adopted is “unprecedented and improper,” however, he does not think its unconstitutional. He explained that the Constitution allows Congress to establish its own rules, including impeachment rules within the limits of the document.
“Its clear that in the Senate, certain standards have to be complied with, such as you have to have a two-thirds vote. But where the constitution doesnt specify how impeachment proceedings should begin, that is up to the individual house to decide,” he said.
For the House, he said, the Constitution stipulates fewer restrictions over how the chamber can proceed with its inquiry, adding that its role is similar to a grand jury trial. He said although what the House is doing is not unconstitutional, there are still political consequences for where the inquiry is heading.
The House Democrats impeachment inquiry is centered on allegations made by an anonymous whistleblower about the presidents conduct during a phone call with Ukrainian President Volodymyr Zelensky in July.
House Democrats have accused the president of leveraging his office and withholding U.S. aid to Ukraine to obtain “dirt” on a political opponent—2020 Democratic candidate Joe Biden.
Meanwhile, Trump has defended his request for Ukraines assistance to look into Bidens dealings, saying that it was intended to investigate alleged corruption, not to look for information on a political opponent. In 2018, Biden boasted that he had pressured then-Ukrainian President Petro Poroshenko to remove a prosecutor who was investigating a Ukrainian gas company, Burisma, where the former vice presidents son held a lucrative board position.
A transcript of the call, released by the White House on Sept. 25, revealed that Trump had asked Zelensky to look into Bidens dealings in Ukraine but hadnt pressured him, and there was no quid pro quo in that call.
High Crimes and Misdemeanors
Natelson said for there to be a case for impeachment, the facts surrounding the inquiry should be “very well-grounded,” such as in the impeachment cases of former Presidents Bill Clinton and Andrew Johnson.
“There was no serious dispute that President Clinton had committed perjury. It was very well-grounded. Even the accusation against President Johnson that he had vioRead More – Source