Of all the arguments of President Donald Trump’s impeachment defense, one of the least compelling is the claim that impeachment proceedings have violated his right to due process.
Trump’s lawyers hammered away at this theme both in the response to articles of impeachment they filed with the Senate on January 20 and during their opening remarks in the Senate trial over the weekend.
The problem with this defense is its assumption that due process is relevant to impeachment. Due process protects the life, liberty, and property of private citizens. It does not create a right to occupy the White House.
In the Fifth and Fourteenth Amendments, the Constitution specifies that an individual cannot be “deprived of life, liberty, or property” without “due process of law.” The word deprived implies that the individual possessed something to which he or she was entitled. No one is entitled to hold elective office.
The British legal commentator William Blackstone applied due process—“due course of law,” in his words—to “the personal liberty of individuals,” including freedom of movement and similar rights. Because they were personal liberties, he reasoned, they could be taken away only in accordance with a reasonable legal process. Presidents, who exercise public rather than personal authority, have no comparable claim to the Oval Office.
For this reason, impeachment explicitly involves fewer rights than a criminal trial does. Blackstone notes, for example, that impeachments, unlike criminal convictions, cannot be undone by pardons. The Constitution similarly says an official can be both impeached and criminally prosecuted for the same act—indicating that impeachment is no substitute for a criminal trial.
A federal court did once hold, as the lawyers’ response notes, that due process applied to an impeachment.* But the only process at stake in that case—concerning the impeachment of former federal Judge Alcee Hastings, now a representative of Florida—was his entitlement to a trial by the full Senate rather than a committee of it. The asserted violation in the Hastings case was of an explicit constitutional requirement that the full Senate try impeachments—which it is quite clearly doing in Trump’s trial.
Trump’s lawyers’ filing goes on to say that the Framers “surely” did not mean to divorce impeachment from rights like due process. But “Federalist No. 65,” arguing for the Senate rather than the judiciary to try impeachments, observes that impeached officials do not enjoy the same rights as private citizens on trial before the courts.
A Senate trial “can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.” Impeached officials do not hazard their personal security. All they risk is their power—a temporary and public trust allocated by the citizenry.
As the president and his lawyers often argue, the public did allocate that trust in the 2016 election, which Trump won according to constitutional rules. But the people register their wills in multiple ways. Trump’s 2016 Electoral College majority was one way. But Democrats have also won major victories since then, and “Federalist No. 65” says House members act as “the representatives of the people” in impeachments.
Trump’s insistence on using the language of criminal defense also undermines his own case. His attorneys protest, for example, that they were not allowed to cross-examine witnesses in the House investigation. But if impeachment is a judicial instrument, the House’s authority is comparable to indictment, a process in which the rights of the accused are notoriously meager. Will the Trump Justice Department now allow attorneys for those accused of federal offenses to cross-examine grand-jury witnesses?
The more dangerous flaw in this thinking is the implicit assumption that the presidential office is the personal property of its occupant. When Trump declared last July, “I have an Article II, where I have the right to do whatever I want as president,” the most disconcerting locution was not his claim of limitless authority but rather the implication that he personally possessed it. Certain authorities accrue to the office; they are not the private rights of the person who occupies it.
In this sense, Trump’s lawyers are wrong to assert, as they did in last week’s filing, that he has “a constitutionally granted right” to hold his office for the duration of his term, which they rank among his “property and liberty interests protected by the Due Process Clause.” The office is not his property. He holds it temporarily, subject to constitutional rules that include both election and impeachment.
To be sure, some judges have concluded that officeholders sometimes do acquire a property interest in their offices. Marbury v. Madison, for example, concluded that William Marbury had a right to the commission for the justice-of-the-peace position to which he had been legitimately appointed. But that is a dicey proposition for elected officials who are being subjected to constitutionally prescribed procedures for their removal. To say that the Fifth Amendment encumbers the impeachment process is a stretch at best. The fact that Democrats used similar due-process arguments in the Clinton impeachment does not help, but neither does it change the underlying facts.
That does not mean members of the House and Senate should be cavalier about fairness. A fair process is likelier to reconcile a divided public to its result. But the public good, rather than private rights, is the perspective from which the Senate should judge the president. Elected office entails exerting coercive authority over other people. There neither can nor should be a personal right to exercise that kind of power. Depriving a president of power is not the same thing as depriving a private citizen of life, liberty, or property. The proper frame of reference for impeachment is consequently not the rights of the president, but the health of the republic.
* This piece originally described this as an appellate-court decision.