Impeachment Inquiry May Result in Unreliable Conclusions Without Due Process: Legal Analyst

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
October 19, 2019 Updated: October 20, 2019

The results of the impeachment inquiry are likely to be unreliable unless the House grants President Donald Trump the right to due process, a leading constitutional expert says.

Professor Robert G. Natelson, a law professor for 25 years who heads the Independence Institute’s Constitutional Studies Center, said the House is taking a political risk by not giving Trump the same due process given to every American citizen. He added that without these safeguards, the House is likely to bring impeachment charges that aren’t suitably based in law.

“It’s not supposed to be surrounded by the attitude of ‘let’s go get them,'” Natelson told The Epoch Times. “It’s a very serious matter because it impairs the president’s 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 don’t know that we’ve ever had a case with a president’s conduct of foreign policy has been questioned as an impeachable offense.”

Natelson said there might not be a strong basis for the accusations against Trump, because the credibility of facts obtained without due process rights such as open proceedings or cross-examination is likely to be weaker.

“When you don’t allow the president to have counsel, when you don’t 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 we’ve learned from centuries of history that due process results in more reliable conclusions.

“So when you have only one side being represented, where you don’t have cross-examination, you don’t have protections against hearsay evidence, for example, you don’t have protections against other unreliable kinds of evidence, [then] you’re 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 process. The three committees leading the investigations—Intelligence, Foreign Affairs, and Oversight—have pushed forward by subpoenaing documents and numerous witnesses to give testimony in closed-session hearings.

Meanwhile, House Speaker Nancy Pelosi (D-Calif.) has refused to hold a vote to authorize the impeachment inquiry, saying that it isn’t necessary. Republican lawmakers have called on Pelosi to suspend the inquiry until “transparent and equitable rules and procedures” are established. They have challenged the Democrats about 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 wouldn’t participate in the 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 doesn’t think it’s unconstitutional. He explained that the Constitution allows Congress to establish its own rules, including impeachment rules within the limits of the document.

“It’s 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 doesn’t 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 hearing. He said that although what the House is doing isn’t 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 president’s 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 and former Vice President Joe Biden.

Meanwhile, Trump has defended his request for Ukraine’s assistance to look into Biden’s 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 president’s 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 Biden’s dealings in Ukraine but hadn’t pressured him, and there was no quid pro quo in that call.

‘High Crimes and Misdemeanors’

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, Natelson said.

“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 violated what was called the Tenure of Office Act was well-grounded. Now, as it turns out, you know, President Johnson argues the Tenure of Office Act was unconstitutional, and that later turned out to be true. But the accusation was based on accurate facts,” he said.

Natelson believes that basing an impeachment inquiry on the Trump–Zelensky phone call fails that standard, as he doesn’t believe the president’s conduct in the call would constitute a high crime or high misdemeanor. He added that it was too early to judge the other accusations against the president such as the withholding of U.S. aid to Ukraine because the hearings are being conducted in secret.

Under the Constitution, the removal of a president can be justified if he or she commits any “treason, bribery, or other high crimes and misdemeanors,” however, the last part of the article—”high crimes and misdemeanors”—isn’t explicitly defined.

To Natelson, “high crimes” means felonies, while “high misdemeanors” means a breach of fiduciary duty or trust such as disloyalty, negligence and neglect, dishonesty, financial self-dealing, or failure to provide adequate financial records.

“It is really hard to find any felony or any breach of fiduciary duty in that conversation between President Trump and President Zelensky, I would suspect [but] I’m not a diplomatic expert [that] freewheeling conversations between heads of state go on all the time,” he said.

Harm to Future Presidencies

Meanwhile, Natelson believes the impeachment inquiry should have never begun, saying that it was a “politically foolish” move by the Democrats that could further polarize the country; he says it has the potential to set a precedent that allows future Congress members to impeach presidents for reasons that aren’t constitutional.

He said that it is particularly damaging to Trump and future presidents as it hinders their ability to perform their duty, especially with regard to foreign policy, adding that the Constitution sets up the president to be the primary director of foreign policy.

“I mean, if dealings with Ukraine, for example, are the basis for impeachment then any president of the future, either of the United States or Ukraine, is going to hesitate on a good deal in the decisions they make,” he said.

The key takeaway of the inquiry is that it “never should have happened, it’s constitutionally questionable, it’s politically damaging, and it can harm the presidency,” Natelson said.

“And it’s so needless because the president is up for reelection in 13 months,” he said.

Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.