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  • Max Stearns

Ten comments on the administration's latest obstruction tactics for non-lawyers trying to keep up

Updated: Apr 15, 2023

Note: I wrote this rather quickly immediately following the Yom Kippur holiday, and posted it on FB. I then realized that some of the blog readers might wish also to see it. It responds to this letter.

#1: Impeachment is not a criminal proceeding.

#2: Were we nonetheless to draw a loose comparison between the impeachment process and a criminal proceeding, the first step, the actual impeachment process in the House of Representatives, as opposed to the second step, the Senate trial, would be analogous to a criminal indictment, not to an actual criminal trial.

#3: During an actual criminal indictment, there is no right of a criminal defendant to call witnesses or to cross exam witnesses as those proceedings generally take place in ex parte (meaning one sided) judicial settings.

#4: Although it is important to provide fair process to affected persons in all proceedings, including impeachment proceedings, the relevant concepts of fairness apply differently based on the specific institutional settings.

#5: That is especially important to remember because the impeachment process is not a criminal proceeding (see #1), but rather a political process for which, "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors" is subject to the sole remedy of removal from office, not to any criminal sanction.

#6: Impeachment is a check by Congress, the legislative branch, on the other co-equal branches of government, meaning the executive and judicial branches.

#7: As seen in the case of Nixon v. United States, 506 U.S. 224 (1993), a case involving the impeachment and removal of a federal judge (not a case involving the former president by the same name), each house has the power to determine its own rules of proceeding provided each house complies with the very limited specific constitutional requirements for impeachment processes.

#7: The letter by Trump's counsel, claiming that the impeachment investigation is unconstitutional, based on claimed violations of such clauses as confrontation clause and the due process, argues for a set of rights in the sitting president that extend far beyond what is specified in the constitution's impeachment clause.

#8: The letter by Trump's counsel extends even well beyond what would be required were this an actual criminal proceeding, which it is not (See ##1 and 5).

#9: Quotations by individual members of Congress exploring the relationship of impeachment processes to the political context of past or upcoming elections changes none of this.

#10: As a result, the letter proves to be merely another obstruction tactic by this administration in an effort to thwart separation of powers and checks and balances.

Please do not be confused. When confronting a constitutional crisis, it is vital to have an informed citizenry.

As always, comments are most welcome.

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