The White House Counsel Is Making Political Arguments, Not Legal Ones

In making the case against the House impeachment inquiry, the White House counsel relies upon a repudiated district court opinion that doesn't even support its argument.

On Tuesday, the White House Counsel's office released a letter to the leadership of the House of Representatives objecting to the current impeachment inquiry. According to the letter, the House's Democratic leadership has "designed and implemented [its] inquiry in a manner that violates fundamental fairness and constitutionally mandated due process."

Although the letter speaks in legal terms, it is important to recognize that it is not making a legal argument. Impeachment is a political process and, as the Supreme Court has recognized, the selection of rules governing the impeachment process are largely for Congress to make. Accordingly, this letter is making political and prudential arguments about what (in the view of the White House) should be considered to be a fair or reasonable process. Contrary to its many appeals to legal authorities, the letter is not making valid legal or constitutional claims.

This may explain why the letter plays a bit loose with its citation of legal authorities, while largely ignoring the original public meaning of the relevant text or directly applicable legal precedents. As Ilya notes below, political office is not "life, liberty or property" under the Due Process clause—and even if it were, the only process that would be due is that which is prescribed in the relevant constitutional provisions (Article I, Sec 2, Clause 5; Article I, Sec 3, Clauses 6 and Clause 7; Article II, Sec 4).

But let's now dig into a few details. In the course of trying to make a legal argument against the current House proceedings, the letter states that "it has been recognized that the Due Process Clause applies in impeachment proceedings. The citation for this claim is 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). I was literally floored to see this citation.

The letter is correct that the U.S. District Court in the District of Columbia did conclude the Due Process applies to impeachment, but not about much else. When Judge Alcee Hastings challenged his impeachment and removal from the bench, District Court Judge Stanley Sporkin concluded that the "fundamental constitutional concept of due process" applies to impeachment trials in the Senate. It made no such claim with regard to impeachment inquiries in the House. In any event, the District Court's conclusion about Senate impeachment trials is not good law.

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.

For more on these questions, I also recommend my co-blogger Keith Whittington's Lawfare essay explaining why the House is not required to vote to authorize an impeachment inquiry.