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history of the Nation,[1] and lacks the necessary authorization for a valid impeachment proceeding.[2]
The Committees’ inquiry also suffers from a separate, fatal defect. Despite Speaker Pelosi’s commitment to “treat the President with fairness,”[3] the Committees have not established any procedures affording the President even the most basic protections demanded by due process under the Constitution and by fundamental fairness. Chairman Nadler of the House Judiciary Committee has expressly acknowledged, at least when the President was a member of his own party, that “[t]he power of impeachment … demands a rigorous level of due process,” and that in this context “due process mean[s] … the right to be informed of the law, of the charges against you, the right to confront the witnesses against you, to call your own witnesses, and to have the assistance of counsel.”[4] All of these procedures have been abandoned here.
These due process rights are not a matter of discretion for the Committees to dispense with at will. To the contrary, they are constitutional requirements. The Supreme Court has recognized that due process protections apply to all congressional investigations.[5] Indeed, it has been recognized that the Due Process Clause applies to impeachment proceedings.[6] And precedent for the rights to cross-examine witnesses, call witnesses, and present evidence dates back nearly 150 years.[7] Yet the Committees have decided to deny the President these elementary rights and protections that form the basis of the American justice system and are protected by the Constitution. No citizen—including the President—should be treated this unfairly.
- ↑ Since the Founding of the Republic, under unbroken practice, the House has never undertaken the solemn responsibility of an impeachment inquiry directed at the President without first adopting a resolution authorizing a committee to begin the inquiry. The inquiries into the impeachments of Presidents Andrew Johnson and Bill Clinton proceeded in multiple phases, each authorized by a separate House resolution. See, e.g., H.R. Res. 581, 105th Cong. (1998); H.R. Res. 525, 105th Cong. (1998); III Hinds’ Precedents §§ 2400–02, 2408, 2412. And before the Judiciary Committee initiated an impeachment inquiry into President Richard Nixon, the Committee’s chairman rightfully recognized that “a[n] [inquiry] resolution has always been passed by the House” and “is a necessary step.” III Deschler’s Precedents ch. 14, § 15.2. The House then satisfied that requirement by adopting H.R. Res. 803, 93rd Cong. (1974).
- ↑ Chairman Nadler has recognized the importance of taking a vote in the House before beginning a presidential impeachment inquiry. At the outset of the Clinton impeachment inquiry—where a floor vote was held—he argued that even limiting the time for debate before that vote was improper and that “an hour debate on this momentous decision is an insult to the American people and another sign that this is not going to be fair.” 144 Cong. Rec. H10018 (daily ed. Oct. 8, 1998) (statement of Rep. Jerrold Nadler). Here, the House has dispensed with any vote and any debate at all.
- ↑ Press Release, Nancy Pelosi, Transcript of Pelosi Weekly Press Conference Today (Oct. 2, 2019).
- ↑ Examining the Allegations of Misconduct Against IRS Commissioner John Koskinen (Part II): Hearing Before the H. Comm. on the Judiciary, 114th Cong. 3 (2016) (statement of Rep. Jerrold Nadler); Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 105th Cong. 17 (1998) (statement of Rep, Jerrold Nadler).
- ↑ See, e.g., Watkins v. United States, 354 U.S. 178, 188 (1957); Quinn v. United States, 349 U.S. 155, 161 (1955).
- ↑ See Hastings v. United States, 802 F. Supp. 490, 504 (D.D.C. 1992), vacated on other grounds by Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993).
- ↑ See, e.g., III Hinds’ Precedents § 2445.
