The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Steven Calabresi is an important figure in the US legal profession, the holder of a named chair at a top-flight institution (Northwestern Pritzker School of Law) and the Co-founder and Board Chairman of the Federalist Society. In a recent essay, "House Democrats Violate The 6th Amendment By Denying Trump A Public Trial," available here, he makes an argument that the House impeachment inquiry is violating President Trump's Sixth Amendment rights, an argument that is so peculiar, and so contrary to elementary and fundamental constitution principles, that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.
Here's the basic gist of what he wrote:
"The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden's son. What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president's constitutional rights. The House majority is thus itself acting unconstitutionally and is seriously abusing its power.
Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to "a speedy and public trial." House Democrats are trying Trump in secret and are denying him the right to a public proceeding….
The Sixth Amendment also guarantees criminal defendants the right to be "informed" of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press. This, too, violates Trumps rights under the federal Bill of Rights.
Moreover, the Sixth Amendment guarantees Trump the right "to confront the witnesses against him," which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right…."
Perhaps "no one is focusing on this" because it is utter nonsense, completely devoid of any apparent constitutional logic. Yes, impeachment is a "legal proceeding"—but it is not a criminal proceeding to which the 6th Amendment applies; yes, "criminal defendants" are guaranteed the right to a speedy trial, to be informed of the charges, to confront witnesses, etc.—but Mr. Trump is not a "criminal defendant" in the impeachment proceedings, so Prof. Calabresi's claim makes no sense whatsoever.
To review, here's the text of the 6th Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
The critical phrase, of course, is the first one, explicitly linking 6th Amendment protections to "the accused" in a "criminal prosecution." There is more than a century's worth of precedent construing that critical limitation on the Amendment's scope. A "criminal prosecution" begins, and the 6th Amendment attaches, at the "initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable." Moore v. Illinois, 434 US 22 (1977); Texas v. Cobb, 532 U.S. 162 (2001). And to constitute a criminal proceeding, there must be a threat of "actual imprisonment"—a substantial "deprivation of liberty." Scott v. Illinois, 440 U.S. 367 (1979), Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578 (2008).
Thus, 6th Amendment protections do not apply to:
- proceedings involving "petty" (as opposed to "serious") crimes, as measured by the length of the authorized prison term, Muniz v. Hoffman, 422 U.S. 454 (1975);
- to misdemeanors (unless accompanied by prison terms for violators), U.S. v. Nachtigal, 507 U.S. 1 (1993);
- prison disciplinary hearings, Minnesota v. Murphy, 465 U.S. 420 (1984);
- parental status termination hearings, Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981);
- juvenile delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
- probation hearings, U.S. v. Nachtigal, 507 U.S. 1 (1993), Frank v. U.S., 395 U.S. 147 (1969);
- summary courts-martial, Middendorf v. Henry, 425 U.S. 25 (1976);
- asset forfeiture proceedings, Libretti v. U.S., 516 U.S. 29 (1995);
- civil (as opposed to criminal) contempt proceedings, or civil proceedings generally, Turner v. Rogers, 564 U.S. 431 (2011)
because (and to the extent that) these are not criminal proceedings involving the prospect of imposing a punishment of "actual imprisonment" on the litigant.
The notion that the House's impeachment inquiry is, constitutionally-speaking, an "adversary judicial criminal proceeding" to which the 6th Amendment applies is, frankly, laughable and nothing short of ridiculous, the sort of mistake a 1L might make on a ConLaw 1 exam but not something one expects from an eminent law professor holding a position at a top law school. The impeachment inquiry is not an adversary judicial criminal proceeding because it is neither a "judicial" proceeding nor a "criminal" proceeding; it is a Congressional proceeding, and whatever the outcome may be it will not, and cannot, result in Trump's imprisonment or any deprivation of his liberty, but only in his removal from office. [Indeed, it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary.]
Whatever constitutional rules or norms might apply to the procedures undertaken as part of the impeachment inquiry—which is a complicated question about which reasonable people might disagree—they are not to be found in the Sixth Amendment, and Trump cannot invoke any of his "6th Amendment rights" (to demand a speedy and public trial or an impartial jury of the State and district wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to confront with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, or to have the Assistance of Counsel for his defense) in connection with that inquiry.
This is pretty elementary stuff—and it is inconceivable to me that someone as well-versed in constitutional law as Steve Calabresi would not recognize this as the constitutional nonsense that it so obviously is. What we have then, perhaps, is another illustration of Trump Derangement Syndrome—an inability of otherwise sensible and thoughtful people to think clearly and logically about anything concerning this president. And while life is too short to try to correct all the nonsensical notions that law professors come up with, this is not just ordinary constitutional nonsense, it is particularly pernicious constitutional nonsense. We are in a portentous moment in the history of this country; it is likely that, for only the third time in 230 years, the House will pass Articles of Impeachment on to the Senate, and we will then witness a trial in the Senate of a sitting president accused of "high crimes and misdemeanors." Public opinion concerning the strength of the case, the seriousness of the charge(s), the fairness of the process, the credibility of the witnesses, etc., is—and should be—of critical importance to this undertaking. Law professors who want to contribute to the public debate and discussion about these matters surely have an obligation to get matters within their particular spheres of expertise—the laws and the Constitution—as right as they can, in order to assist the public in evaluating these questions and understanding these issues in the weeks and months ahead.