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It was just reported by CNN that 3 GOP senators (Lindsey Graham, Ted Cruz and Mike Lee) met with Trump's defense team today. When asked if meeting with senators (which are jurors) during the trial was appropriate, David Schoen (Trump lawyer) replied:

There's nothing about this thing that has any semblance of due process whatsoever.

Is that correct? Nothing?

2 Answers 2

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Due process means (put simply) that the government will not punish a citizen for a crime unless it has been demonstrated — within a prescribed set of legal procedures — that the crime was committed by the person in question. Usually this means things like avoiding unnecessary delays, ensuring proper counsel, preventing expropriation of money or property, and otherwise preserving the rights of the accused as much as possible until after a verdict is delivered.

Schoen's comment is either innocently mistaken, deliberately misleading, or a failed attempt at gallows humor. It fails on three points:

  • Due process only applies to trial, not to the process of indictment. The House's issuance of impeachment is similar to an indictment issued by a grand jury or district attorney. It's not a trial or conviction, but merely a legal accusation that must then be adjudicated at trial in a different body (the courts for an indictment, the Senate for impeachment)
  • The Senate establishes its own rules of procedure for trial through bipartisan agreement, so due process is automatically satisfied. The only way to violate due process in a Senate trial would be to establish the rules for the trial and then intentionally break them, which would serve no purpose for either side.
  • Pragmatically, Trump (as defendant) has had none of his rights violated. He has not been imprisoned or fined, he has adequate representation, his trial was scheduled in a timely manner, he was invited to appear and give testimony in his own defense (which he declined), he was not subject to any unwarranted search or seizure. Where is the violation of due process?

Schoen is merely (like a good lawyer) trying to play up his best line of defense: that the impeachment and trial are (somehow) irregular, unconstitutional, and/or otherwise procedurally flawed, and that his client should be protected under due process. Trump's behavior is difficult to justify or excuse — particularly after the House managers' effective arguments — so Schoen is trying to refocus on the behavior of the House and Senate, asserting that their behavior nullifies the trial regardless of what his client did.

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  • Can you really claim that an action by the defense team nullifies the prosecution's case?
    – Barmar
    Feb 12, 2021 at 14:48
  • Clarification: the last sentence means Schoen is asserting that the behavior of the House and Senate nullifies the trial. Feb 12, 2021 at 15:04
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    @Barmar: That is the essence of due process. Bad behavior on the part of the government — a prosecutor who refuses to hand over exculpatory evidence; police who beat a confession out of a suspect; suspects held for extended periods without charge or trail — can (and should) result in immediate exoneration, regardless of the suspect's guilt. That's what innocent until proven guilty means. Process must be observed to ensure fair and impartial trials, because trials that are not fair and impartial punish the innocent as easily as the guilty. Feb 12, 2021 at 15:06
  • @Barmar: Yes, that is (likely) what Schoen is going to argue: that the impeachment and subsequent trial were not fair and impartial, but were examples of partisan excess. I'm sure we'll hear a litany of variations on the theme "The Democrats were out to get Trump". From the defense perspective, the House Dems are on trial, not the ex-president. Feb 12, 2021 at 15:10
  • @TedWrigley But here we're talking about bad behavior on the part of the defense team. The analogue of "the goverment" in this trial is the House managers, they didn't do anything wrong.
    – Barmar
    Feb 12, 2021 at 15:11
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First off, he's making a political statement, not a statement of legal fact. As a matter of professionalism he'll aggressively advocate for the interests of his client, and this can often result in public claims that various sacred rights have been trampled, even if on a technical, legal level this is total bullshit and he knows it.

That said, as to the question of what Congress is obligated to do:

By default: Whatever Congress says goes

The constitution uses the word "sole" in exactly two places: in granting the House the sole power of impeachment, and in granting the Senate the sole power to try impeachments. What little SCOTUS precedent we have on impeachments holds that impeachment is, as a result, a political question, and essentially non-justiciable.

Congress itself has tended to advance the idea that concepts such as due process are common law protections that affect only the Judiciary (and, insofar as their enforcement actions are always brought before and adjudicated by the Judiciary, also the Executive branch), and do not apply to Congress itself. They've been known to threaten to ignore things like attorney-client privilege and the like as leverage to get more information out of witnesses. But they usually don't try to push the issue, and usually avoid getting the courts involved in them. This is because the courts have seemed like they might be hostile to that position, as there have been rulings against this stance before, but which were ultimately vacated (and so eliminated as any sort of binding precedent). Congress doesn't want to risk losing this bargaining chip entirely, and the witnesses being pressured don't want to risk making that bargaining chip into an officially recognized part of Congress (and thereby letting Congress get even more out of them than they're trying to negotiate for), so they usually come to some sort of agreement without the involvement of the courts.

As such there is an argument to be made that any claims of lack of due process are nothing more than a smoke screen that Senators can hide behind to justify acquittal. That argument being that there is no due process required by a Congressional impeachment inquiry, and you get whatever they gracefully give you. The constitutional check on Congressional abuse of impeachment is not in things like due process, but in the people who elect Representatives and Senators. What semblance of due process is granted is done as a political calculation, not out of constitutional obligation.

And in general, claims of a violation of due process are a common way to try to rally people to your defense, as due process is viewed as one of the sacred protections granted by the constitution to most Americans: up there with free speech and freedom of religion. But "due process" even before normal courts is a nebulous and evolving concept that the courts are continually working out. Normal courts have the luxury of selecting jurors from a pool to weed out those who can't seem to separate political bluster from legal fact, and of being run by a judge with no stake in the matter, which makes it easier for them to ensure proper justice is done. But an impeachment trial of a President has neither of these: the "jurors" are fixed from the get-go, and the jurors are also the judges, all of whom have a stake in the matter at hand. Indeed, in this particular impeachment, the juror-judges are also victims and witnesses! This would never be tolerated in a normal court setting, but it is required and unavoidable here.

As one relevant example would go, if a court holds that it has jurisdiction to hear the case before it, then jurors who openly assert they disagree and will vote to acquit as a result may be in contempt of court. The Judge decides what the law is; the jurors decide what the facts are and then applies those laws to them to reach the prescribed conclusions. But in both Trump impeachments we've seen Senators do exactly this to no (negative) consequence whatsoever.

As impeachment is a political question, everything about it seems to naturally devolve into political theatrics.

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  • To add, the idea that the Senate has broad discretion to decide what procedures it would use to try impeachments, and that it cannot be reviewed by the courts, was confirmed by the Supreme Court decision in Nixon v. United States (1993) (that's Judge Nixon, not President Nixon).
    – user102008
    Feb 12, 2021 at 20:31

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