Donald Trump and the Impossibility of Impartial Justice

November 13, 2019 Updated: November 13, 2019

Commentary

Several Democratic candidates for president have asserted that President Donald Trump is guilty of crimes.

Although impeachment is not a criminal proceeding, Charles Alan Wright, the lead attorney for then-President Richard Nixon’s defense, argued, with considerable merit, that the president can only be impeached for criminally indictable offenses.

Despite the political nature of impeachment, logic suggests that the president of the United States is entitled to the same constitutional rights and protections that the Sixth Amendment of the Constitution provides to criminally accused defendants.

To this point, violation of specific laws isn’t apparent, but the very fact that the president of the United States may face the prospect of being removed from office deserves, at a minimum, the same protections of due process afforded under the Bill of Rights.

The Sixth Amendment states that “the accused shall enjoy the right to a speedy and public trial by an impartial jury. …” Since the U.S. Senate sits as the “jury” in an impeachment trial, senators clearly have an obligation, consistent with the Sixth Amendment, to be “an impartial jury.”

However, the right to an impartial jury hasn’t only been compromised, it’s an impossibility. How do we know this? Because at least three sitting U.S. senators, all of them seeking the nomination to be the Democratic candidate for president, have made public statements ascertaining guilt before a senate trial even takes place.

Yet because of the unique nature of impeachment, Trump’s defense attorneys will have no peremptory challenges to use against senators whose unmitigated bias against the president would make it impossible for him to receive a fair trial.

Sen. Elizabeth Warren (D-Mass.) said, “A president is sitting in the Oval Office, right now, who continues to commit crimes.” Warren’s unsuitability as an impartial juror was further revealed when she said, “If any other human being in this country had done what’s documented in the Mueller report, they’d be arrested and put in jail.”

According to Sen. Kamala Harris (D-Calif.), Trump has already confessed his guilt: “We are talking about the fact—as confessed by the president, essentially—with plenty of evidence, including of cover-up and including clear evidence of consciousness of guilt—that the president of the United States used American taxpayer dollars and held them hostage with an expectation of favor from the head of a foreign government.”

Sen. Bernie Sanders (I-Vt.) also has indicated that he would enter an impeachment trial with a presumption of guilt, not innocence. As Sanders noted, “In my judgment, Trump is the most corrupt president in the history of the country.” Sanders apparently believes the House will establish Trump’s guilt through the mere act of impeachment.

As he put it: “I think that the House will find him guilty of, worthy of impeachment because of the emoluments clause. He is enriching himself while using the Oval Office.”

With regard to the Ukrainian matter, Sanders stated, “The idea that we have a president of the United States who is prepared to hold back national security money to one of our allies to get dirt on a presidential candidate is beyond comprehension.”

What is really beyond comprehension is that Trump’s lawyers can’t even confront the person who made the initial whistleblower complaint regarding an alleged quid pro quo with Ukraine President Volodymyr Zelensky. This raises another important protection guaranteed by the Sixth Amendment of the Constitution, which Trump apparently isn’t entitled to: the right to face his accuser.

The accused must, according to the Sixth Amendment, “be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.”

The House Intelligence Committee, and its chairman, Rep. Adam Schiff (D-Calif.), have thus far conveniently ignored most of these rights in their semi-secret depositions of witnesses. Schiff refuses to reveal who the “accuser,” i.e., the whistleblower, is, or to allow the president’s attorneys to cross-examine the accuser, a right protected by the Constitution for any citizen facing criminal charges.

Nor has Schiff allowed the president the Sixth Amendment’s protection of a “compulsory process for obtaining witnesses in his favor.” Ironically, the very rights that would be afforded to a defendant accused of shoplifting a pair of gloves from a department store are being denied to the president of the United States by the chairman of the House Intelligence Committee.

If Trump’s lawyers were allowed to issue peremptory challenges for jurors, as they would have the right to do in our federal courts, Sens. Warren, Harris, and Sanders would clearly be excluded as jurors, as they have already predetermined the guilt of the president and have so stated publicly.

Phillip G. Henderson is the author of “Managing the Presidency: The Eisenhower Legacy and The Presidency Then and Now.” He taught American government and politics for 27 years at The Catholic University of America in Washington, D.C.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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