(TheRedWire.com) – Does a President have due process rights if he or she is impeached by the House and tried by the Senate? That’s a question many people are asking. The US Constitution doesn’t say much about impeachment.
Impeachment is a unique component of the Constitution, and it only applies to a sitting president, according to a plain reading of the text. A Senate impeachment trial’s main purpose is to remove a sitting president from office if convicted by a two-thirds majority vote. The House refers articles of impeachment to the Senate for trial based on their investigation of “high crimes and misdemeanors.” Debates continue over the meaning of that last phrase.
What Is Due Process? Is It Applicable to the Impeachment and Removal Process?
Due process is a foundational legal concept that goes back to the Magna Carta. The framers established it in the Fifth and Fourteenth Amendments. Its stated purpose is to ensure that no one is deprived of “life, liberty, or property, without due process of law” in a criminal or civil trial.
The framers did not create the impeachment and removal process to be the same as a civil or criminal trial for American citizens. When a president is impeached and tried, there are no criminal or civil penalties. The only consequences are removal from office and disqualification from holding elected office again. The Senate cannot impose a fine or jail time.
Impeachment and Removal Is a Political Process
Because conviction in the Senate does not impose fines or jail time, many Constitutional scholars argue that House impeachment and a Senate trial are political processes, not legal ones. Therefore, there are no due process rights afforded a president because one does not risk losing “life, liberty, or property.”
Assumption of Due Process is Conjecture
Other scholars argue that due process is a part of the impeachment and removal process. They cite the Magna Carta as essential to understanding due process and say it’s fundamental to any fair trial.
However, that’s never been tested, and no one knows how the Supreme Court would rule on the matter. The only way to know is for a president to challenge due process violations in the courts after the fact. Otherwise, the House and Senate make the rules because the Constitution is silent on the matter.
As it stands, a president does not have due process rights unless the House and Senate afford those rights to the accused.
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