Questions of Due Process in Trump Trial

Questions of Due Process in Trump Trial

( – In the closing days of Donald Trump’s first term, Democrats in the House moved swiftly to impeach the president a second time. The action’s swiftness largely rested on the fact that the Constitution only allows a “sitting” president to be impeached. It was one of the fastest impeachments on record, as time was of the essence.

In the formal impeachment process involving Presidents Nixon and Clinton (as well as Trump’s first trial), it took the House anywhere from 35 days to over 150 days to draft impeachment articles. Due to the process’s speed this time — just 7 days from the Capitol Hill riots to House vote — questions are being raised about due process and whether Trump is being treated fairly by Democrats.

What Is Due Process?

As a legal framework, due process was first established in the Magna Carta and codified in the 5th and 14th Amendments of the US Constitution. Its purpose is to ensure that citizens are not deprived of their rights of “life, liberty, or property, without due process of law” in a civil or criminal trial.

Merriam-Webster defines due process as a “judicial requirement that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual.”

Does Due Process Apply in an Impeachment and Senate Trial?

The founders did not intend for impeachment and removal of a president to be the same as a civil or criminal trial. Unlike a civil or criminal trial, impeachment is not a legal process. It’s a political process with limited remedies if a president is found guilty in a Senate trial. No fines or jail time can be imposed on a president, and there is no threat to their “life, liberty, or property.” If convicted by the Senate, the only consequences are removal from office and a lifetime ban on holding an elected position — Oh, and public shame and ridicule for all of history.

Furthermore, there are no Constitutional rules that specify how to conduct the process. The House and Senate majorities decide the rules. However, House majorities have typically allowed defense attorneys to be present in the drafting of impeachment articles. Until the House prepares to vote on the measure in deliberations, however, defense attorneys can’t actively participate. The House did not afford Trump’s legal team access to the second Impeachment proceedings.

House Abandons Semblance of Due Process

Though not stated in the Constitution, due process has traditionally been observed in some capacity for other presidents prior to the second impeachment of former President Trump. Politicians avoided the public perception that they were unfair in their dealings with a president. Nonetheless, whether right or wrong, the prerogative to offer due process rests with the House and Senate.

There is no question that Trump’s legal team wasn’t afforded the same hospitality as other impeachment lawyers in the past. Nor was there any attempt at fairness or objectivity. Unfortunately, it’s not legally required, and the president ultimately doesn’t have due process rights unless the House and Senate generously offer them.

Don Purdum, Independent Political Analyst

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