In a recent letter on behalf of the president to the House committees on impeachment, the president's counsel Pat A. Cipollone wrote:

I write on behalf of President Donald J. Trump in response to your numerous, legally unsupported demands made as part of what you have labeled contrary to the Constitution of the United States and all past bipartisan precedent-as an "impeachment inquiry." As you know, you have designed and implemented your inquiry in a manner that violates fundamental fairness and constitutionally mandated due process.

For example, 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. 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. Never before in our history has the House of Representatives-under the control of either political party-taken the American people down the dangerous path you seem determined to pursue.

The last paragraph names the following:

  1. the right to cross-examine witnesses

  2. [the right] to call witnesses

  3. [the right] to receive transcripts of testimony

  4. [the right] to have access to evidence

  5. [the right] to have counsel present

To me, these seem like rights a defendant would have in a trial in most countries with an established legal system. Impeachment inquiries, however, are different from criminal trials in that they are aimed at collecting evidence like a police investigation might for the purpose of a future criminal trial.

In the impeachment procedure, the current step is not similar to a trial but the stage during which evidence is collected and witnesses are interviewed. Given the timing of the letter and the letter calling the inquiry "constitutionally illegitimate proceedings" it seems the White House is claiming that these rights should be available now.

Hence my question:

To what extent were the five aforementioned rights actually granted to defendants (then presidents) in past impeachment inquiries (i.e. the investigative phase of the impeachment process preceding the vote in the House of Representatives on articles of impeachment)?


3 Answers 3


No. Mr Cippollone's letter is being laughed at as ridiculous by legal experts.

Wow. This letter is bananas. A barely-lawyered temper tantrum. A middle finger to Congress and its oversight responsibilities.

No Member of Congress should accept it, no matter his or her view on the behavior of Pelosi, Schiff, or Trump.

Things are bad. Things will get worse.

Twitter posting from Gregg Nunziata, former GOP Senate Judiciary Committee staff member

Michael Conway, who was the House Judiciary's counsel for Nixon's impeachment inquiry offered a review of the letter, titled "The White House's impeachment letter was so wrong that even James K. Polk knew better in 1846"

A summary of his main points -

The White House is on thin ice. The words of the Constitution, the history of prior American impeachments, the adoption in 1974 by the House Judiciary Committee of Article III of impeachment against President Richard Nixon and a 1993 ruling of the U.S. Supreme Court refute the legitimacy of the White House’s battle plan to interfere with impeachment proceedings.

On the Constitution:

The Constitution, for one, vests the “sole power of impeachment” in the House of Representatives and, in an impeachment proceeding, it has the wide-ranging ability to demand both documents and testimony.

In terms of historical precedent, and the right of POTUS to refuse or claim executive privilege -

This actually occurred in the 1867 impeachment proceedings of President Andrew Johnson: “Cabinet officers and presidential aides were questioned in detail about Cabinet meetings and private conversations with the President;” “[w]itnesses answered detailed questions on the opinions of the President, statements made by the President, and advice given to the President,” the 1974 report explained.

More recently, when Nixon tried to refuse a subpoena -

The Supreme Court, too, rejected the president’s executive privilege claim in ruling 8-0 that Nixon had to produce White House tapes in response to a subpoena in a criminal trial.

Regarding the due process violation claims -

History aside, Cipollone’s central legal claim that the current impeachment inquiry denies Trump due process is too specious to be overlooked. Even an essay by Stephen Presser in the conservative Heritage Foundation’s “Guide to the Constitution” states: “The appropriate place of bringing charges of impeachment, which power is analogous to the bringing of criminal charges by a grand jury, is in the lower house of the legislature. Just as the grand and petit juries are popular institutions, so it made sense to have the branch closest to the people charged with this indictment-like power.”

Exactly so. And like a grand jury, witnesses are not entitled to be accompanied by counsel when they testify, and the subject’s lawyers have no right to attend.

Even if they feel it is unfair, there are no avenues for them to legally refuse to cooperate.

Beyond that, the law is clear that the judicial branch cannot and will not interfere in the legislative branch’s impeachment prerogatives. In 1993, the Supreme Court unanimously ruled that an impeached and convicted federal judge Walter Nixon could not challenge in court the Senate trial removing him.

Chief Justice William Rehnquist referred to the constitutional language giving the House the “sole” power to impeach and the Senate the “sole” power to try the articles of impeachment, writing: “The common sense meaning of the word ‘sole’ is that the Senate alone shall have the authority to determine if an individual should be acquitted or convicted.” The court ruled that the Senate’s conduct could not be reviewed by the courts as it is a “political question.”

NBC News Think: The White House's impeachment letter was so wrong that even James K. Polk knew better in 1846

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

US Constitution: Article 1, Section 2, Clause 5

This isn't the government conducting a criminal trial of a citizen. This is one political body of government carrying out an internal process for self-policing another branch of government. The ultimate sanction is a political one - removal from office, not a criminal one. Comparisons to criminal rights of citizens, while they may resonate with ardent supporters desperately looking for a way to cast their guy as a victim, do not actually apply here.

  • 1
    Funny how all those GOP guys disagreeing with Trump are former something. It goes to show Trump's current grip on the party. Oct 10, 2019 at 1:22
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    The impeachment/grand jury analogy seems weak to me. For good reasons, grand juries operate in secret, and that justifies the exclusion of counsel. The dems go public without even getting their facts straight. Even Nancy P. couldn't tell that Adam S. was not being literal with the words he publicly mis-attributed to Trump. It may well be that impeachment is warranted, but the media circus is shameful. Oct 10, 2019 at 1:39
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    P.S. I agree the items listed aren't "rights" in impeachment granted in the constitution. But the OP didn't ask if they were rights, he asked to what extent in prior impeachments they might have been granted [anyway]. It seems like a historical fact question, not one calling for political opinion on the letter they came from... Oct 10, 2019 at 3:01
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    @Burt_Harris - lawyers and physicians (thinking about Trump's "doctor's note" that he wrote himself and the doctor signed) have a certain level of professional and ethical standards. A lawyer making blustering claims with zero foundation in law and making intentional misrepresentations is violating his professional standards. Pointing that out and calling that out as such is hardly "personal." Whether he's incapable/incompetent and can't mount a valid defense, or whether there is none to be mounted doesn't change the fact that his letter was, legally speaking, trash. Oct 10, 2019 at 15:41
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    @Burt_Harris - Negotiating past processes on a case-by-case basis in no way confers "rights." The claim IS being made that Trump's "rights" are being violated. They are not. I included a reference where it showed that even confidential, personal conversations between Johnson and advisers were considered something that had to be revealed in the original impeachment precedent. If that's fair game, it's a stretch to claim that history or precedent confers any kind of special due process rights. Oct 10, 2019 at 15:48

ABA Journal (which tries to be pretty neutral politically) has some coverage of this in their news section; it's telling that they cited no experts siding with Trump, except for his lawyers, instead:

Stephen Vladeck, a law professor at the University of Texas, told the Associated Press that he thinks the constitutional arguments were made with a different purpose in mind. “I think the goal of this letter is to further inflame the president’s supporters and attempt to delegitimize the process in the eyes of his supporters,” he said. [...]

In a hearing Tuesday before Chief U.S. District Judge Beryl Howell of the District of Columbia, House general counsel Douglas Letter argued that it wasn’t necessary for the House to formally vote to begin an impeachment inquiry. “We are in an impeachment inquiry, an impeachment investigation, a formal impeachment investigation, because the House says it is,” Letter said.

Arguing for the White House, lawyer Elizabeth Shapiro, a deputy director in Department of Justice’s civil division, argued that a judge’s decision to give grand jury materials to the House in the Watergate investigation would have been wrong under today’s interpretation of the rules by the DOJ.

“Wow. OK,” Howell replied.

Also Ilya Somin blogging for the The Volokh Conspiracy, writes:

The appropriate rules for a process that might deprive an office-holder of a position of power are not the same as those for one that could deprive the defendant of basic civil liberties. Conflating the two is part of a broader pattern in which many people tend to apply the standards of criminal trials to situations where they are not appropriate.

Even if we do accept the analogy to a criminal trial, Trump still would not be entitled to the rights demanded by the White House counsel. The closest criminal analogy to a House impeachment inquiry is a grand jury proceeding, potentially leading to indictment. Before a grand jury, the defendant does not have any of the procedural rights Cipollone lists. Such rights are reserved for the trial which is held if the grand jury chooses to indict the defendant – here the trial held by the Senate, if a majority of the House votes to impeach.

Despite the administration's claims to the contrary, nothing in either the Constitution or House rules requires the House to authorize an impeachment inquiry with a formal vote, as opposed to doing it through the committee process. Such a vote is no longer necessary to give those committees subpoena powers, ironically because of a rule change the Republicans made when they last controlled the House. It is reasonable to argue that a vote is desirable for political or other reasons, but not reasonable to claim that it is legally required.

Somin also points to a longer list of opinions from law experts against Cipollone's claim hosted by Vox as an "insta-symposium", although Somin being a small-government conservative, points out that most of those in that Vox roundup have more Liberal views.

Of all those, Ciara Torres-Spelliscy makes an analogy with a lesser known case:

Forget the Watergate scandal for a minute. If the Trump administration persists in defying Congressional requests for testimony and documents, then we’re really back at the Teapot Dome Scandal from the 1920s. At the heart of the Teapot Dome Scandal was why president Harding’s Attorney General Harry M. Daugherty had not investigated the Secretary of Interior Albert Fall’s shady dealings — including outright bribes — over oil rights in Teapot Dome, Wyoming.

Looking into the matter, Congress had reason to believe that Attorney General Harry’s brother Mally S. Daugherty, who was a banker, had relevant information to provide. When Mally was subpoenaed to appear before Congress, he refused. This led to the Sergeant at Arms’ deputizing a man to go arrest Mally in Ohio. Mally convinced a judge that he was wrongly imprisoned by Congress. This legal battle over whether Congress could make Mally talk eventually led to a Supreme Court case which recognizes the broad subpoena power of Congress.

Some of this legal precedent from McGrain v. Daugherty could be translated directly to current events. One of the questions that the House surely has is when the Inspector General referred the whistleblower’s complaint about President Trump’s call with the President of Ukraine to the Department of Justice for possible criminal prosecution for a possible violation of campaign finance laws, why did the Barr DOJ drop the ball?

Then and now, Congress should have the full ability to investigate the DOJ and other parts of the administration, including the president, so that Congress can properly craft legislation, as well as execute their constitutional duties.

For reference, McGrain v. Daugherty on Wikipedia (more accessible for laymen than the actual judgement that Torres-Spelliscy linked to in the writeup.)


There is at least some evidence in the case of the impeachment of Richard Nixon, that he had counsel, but not personal counsel, representing him during the period of House Judiciary Committee proceedings. What's not so clear is to what extent he participated in the committee's investigation. Wikipedia reports:

Attorney James D. St. Clair, having been named a special counsel to the president in January 1974, represented Nixon before the House Judiciary Committee as they considered the impeachment charges against him. He said in explanation of his role, "I don't represent Mr. Nixon personally. I represent him in his capacity as president." This dovetailed with Nixon's argument that he was motivated by a desire to protect the presidency and not by any urge for self-preservation. St. Clair's defense was centered around the notion that while Nixon had made a number of statements that looked bad, he had committed no crimes.

Unlike the Trump impeachment probe, the Nixon impeachment process involved with an actual grand jury. The grand jury was, of course, conducted in secret, so of course St. Clair was not involved in that. The grand jury issued indictments of a number of figures, including top White House aids, and named Nixon an "unindicted co-conspirator". The grand jury materials went to a special prosecutor, Leon Jaworski, who prepared a "road map" used by the House Judiciary Committee and staff. By the point where the committee (and Jaworski) resorted to subpoenas against the office of the president, they were pretty clear what they wanted: tapes from the oval office. Nixon resisted, but the U.S. Supreme Court ordered him to produce the materials in United States v. Nixon where St. Clair argued on the president's behalf.

Note: The subpoena which eventually lead to Nixon's downfall was not a congressional subpoena. It was a subpoena in a criminal case, e.g. United States v. Mitchell, 377 F. Supp. 1326.

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    Wasn't that after the investigation? Oct 9, 2019 at 8:52
  • St. Clair clearly was appointed in January 1974, but I agree it is not clear how much he was involved in the House Judiciary Committee investigation, much of which happened behind closed doors. He clearly represented Nixon in the court cases which lead to disclosure of the oval office tapes. Some sources say he was responsible for insisting President Nixon disclose the tapes once he became aware that they contained evidence that Nixon was part of a conspiracy to obstruct justice. Oct 9, 2019 at 17:10
  • There was also a criminal trial because of the Watergate break-in that started it, and a criminal proceeding against Nixon's aides who tried to cover-up the crime, with Nixon being an unindicted co-conspirator, so perhaps the grand jury materials were from those actual criminal proceedings, which were then used by the House since they were so directly relevant? Oct 9, 2019 at 23:10
  • I agree, the criminal case is sighted in the last paragraph. Specifically the Attorney General of the United States, John Mitchell, was indited and later convicted. Mitchell's involvement was was pretty good reason to seek impeachment of his boss, and rapid elevation of the legal privilege question to the Supreme Court. But I'm not sure I understand you point @PoloHoleSet. Do you want to make an edit? Go ahead. Oct 10, 2019 at 1:08

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