Clear and Present Dangers

My latest @VolokhC post:
The White House Counsel Is Making Political Arguments, Not Legal Ones https://t.co/gDq61uHVzp via @reason

— Jonathan H. Adler (@jadler1969) October 10, 2019

I was intentionally quiet about the legal analysis (or lack thereof) in the White House counsel letter.  I found the argument of the letter enough to go on (and partly because I'm too lazy to run Shepherds anymore; and don't have access to a law library anyway).  But this is a nice statement on the case cited in the letter for the proposition that President's must be afforded due process in impeachment proceedings.  Bottom line:  Nope.

While the letter claims the Hastings decision was "vacated on other grounds," reading the opinion tells a different story. At the time of the Hastings decision, another federal judge (Walter Nixon) was also challenging his impeachment and removal, arguing that the procedure utilized by the Senate did not satisfy the constitutional requirement of a "trial" in the Senate. This was the precise same argument at issue in Hastings. Indeed, as the court itself noted in Hastings, Nixon concerned "the identical issue presented in this case."

Although the D.C. Circuit had rejected Nixon's claims under the Political Question doctrine, Judge Sporkin explained that he could reach the underlying issue because the Supreme Court had accepted certiorari, but not yet issued a decision, on that issue. But as Judge Sporkin's opinion also made clear, the resolution of Nixon's case would undoubtedly control.

In Hastings, Judge Sporkin went on to conclude that courts could impose due process requirements on Senate impeachment trials as the conduct of such trials were not a Political Question. This holding, however, is precisely what was vacated by the D.C. Circuit because this holding is precisely what was repudiated by the Supreme Court in Nixon v. United States.  In Nixon, Chief Justice William Rehnquist (joined by the Court's conservatives)concluded that the content of impeachment proceedings—including the conduct of a trial in the Senate—is wholly in the control of the legislative branch. Several justices concurred in the judgment, concluding Nixon deserved to lose on other grounds, but no justice thought Nixon's claim had merit.

Nixon makes clear that each house of the legislature gets to set the rules for its part of the impeachment process. If there is no judicially enforceable constitutional constraint on the conduct of a Senate impeachment trial, it is particularly hard to argue for the existence of any such constraints on a House impeachment inquiry. After all, a House impeachment inquiry is, at best, analogous to a grand jury indictment, not a trial. So even if we thought more process might be required, it would not be much at all—and certainly would not entail all the rights to which the White House counsel's office tries to argue that the President is entitled as a matter of law, let alone "constitutionally mandated due process."

As a political or prudential matter, the House may decide that affording greater procedural protections to the President and his defenders is a good idea, particularly insofar as it makes impeachment more politically palatable. There are reasonable arguments to be made on these points, but these arguments are, at bottom, political and prudential, not legal or constitutional—and no one should pretend otherwise.

I still think the opposition of this White House to the Congressional hearings is a "Constitutional crisis."  But that's a scare term journalists like to throw around until it's a clear and present danger; and then they find it too hot to handle.