“The Sixth Amendment is pretty clear,” Sen. Rand Paul (R-K.Y.) said during a Fox Business Network interview. “It says that you get to confront your accusers,” referring to the whistleblower. Sen. Lindsey O. Graham (R-S.C.) and Trump have made similar statements.
An opinion piece published by the Daily Caller took things a step further. Steve Calabresi, chairman of the Federalist Society's board of directors and Northwestern School of Law professor, argued that Trump’s constitutional rights have been violated.
“House Democrats are abusing their power of impeachment by denying Trump his basic rights as a defendant in the case against him under the Sixth Amendment,” Calabresi wrote. “The leaders of this unconstitutionally conducted and Kafkaesque ‘trial’ should be expelled from the house for their unconstitutional behavior thus far.”
The Sixth Amendment guarantees criminal defendants the right to a public and speedy trial with an impartial jury, to an attorney, to call witnesses and confront accusers and to be informed of the charges. The text begins by limiting its protections to “criminal prosecutions,” which arise after a person is charged with a crime and indicted by a grand jury.
Legal scholars have called the notion that the Amendment has anything to offer Trump in an impeachment proceeding “disingenuously wrong” and House Speaker Nancy Pelosi (D-Calif.) on Thursday pushed back against the prospect of Trump confronting the whistleblower.
Impeachment isn’t a criminal proceeding.
Impeachment is a legal proceeding in the sense it occurs according to law, but Calabresi’s premise conflates a legal proceeding — which could include civil and administrative cases or a divorce — with a criminal proceeding, where the right to confront witnesses applies. Trump is not a defendant in a criminal case, he’s a president amid an impeachment inquiry.
Alan Baron, former special impeachment counsel to the U.S. House of Representatives, called impeachment “a remedial process designed to protect the public by removing from federal office people who, by their conduct, have shown they’re unworthy of holding that office.”
Other details further highlight that impeachment is neither a civil nor criminal proceeding:
An impeachment does not follow the burden of proof standards from criminal or civil cases. Although the rules of evidence, like precluding hearsay, can apply, the Senate is not bound by them.
The result of an impeachment trial “conviction” is loss of a federal job and possibly being barred from holding a future federal position. The Constitution allows a separate vote that would bar the person whose been convicted, and therefore removed from office, from holding a federal office under American laws.
The right to confront witnesses is a trial right.
Under the Constitution, there is a two-part process to remove a president from office:
Article I entrusts the House with the responsibility of voting on impeachment. The chamber takes testimony and drafts articles of impeachment, Baron explained, and then the entire House votes on the proposed articles; some experts have drawn parallels between House impeachment proceedings and a grand jury deciding whether or not to indict the accused.
“If we are taking about impeachment and analogizing to the criminal process, the part of the criminal process where all these rights apply are in the trial phase, not the grand jury or investigation stage,” said Gregg Nunziata, who served in senior counsel roles for Sens. Marco Rubio (R-Fla.) and John Thune (R-S.D.) as well as Senate Judiciary Committee Republicans.
If the House votes to impeach, the Senate has the “sole power to try all impeachments,” but a Senate trial isn’t a criminal proceeding either. Although Trump would have the opportunity to defend himself against any charges in the Senate, confrontation rights are not guaranteed in an impeachment trial.
The Senate’s role is not to determine guilt or innocence, but to decide whether the president committed “treason, bribery, or other high crimes and misdemeanors” within the meaning of the Constitution.
It also authorizes the Senate to “determine the rules of its proceedings,” including how to govern an impeachment trial, and requires the Chief Justice of the U.S. Supreme Court to preside if the trial involves a president.
“The Sixth Amendment is clearly about criminal proceedings and to try to apply rights that belong to Americans in a different setting and a different forum has really missed the gamut,” Nunziata said. “but as a matter of procedural soundness, the president and Republicans should insist on a variety of rights at that stage so the trial process is fair and has the confidence of the American people.”
The whistleblower is not a witness against Trump.
Even in a criminal prosecution, where confrontation rights are guaranteed, defendants aren’t permitted to face off with every person who participated in an investigation.
For example, the right to confrontation would not apply to an anonymous tipster who heard about a crime and called the local police station. It applies only to testimony a prosecutor relies upon to prove his or her case, explained former director of the U.S. Office of Government Ethics Walter Shaub.
As Congress enters a new phase of televised hearings, it’s unlikely Republican lawmakers or Trump’s desire to hear from the whistleblower will wane. Some experts said the overwhelming focus on his or her identity is largely a distraction. Others have called it an attempt to encourage retaliation.
“The idea is to make the consequences of reporting wrongdoing so severe that others will be afraid to do so in the future,” Shaub said.
Key players, including the president, have corroborated facts at the core of the initial complaint. If the impeachment doesn’t rely on information the whistleblower has exclusively, he or she is not a witness against Trump and there’s no need for him or her to appear.
“It's not impossible that the Senate would call the whistleblower, even though the whistleblower's testimony would be entirely irrelevant to establishing guilt or innocence,” he said.
Hearing from the whistleblower might give the average American more confidence in the process, but the impeachment will come down to whether there was wrongdoing by the president serious enough to warrant impeachment or removal.
On Wednesday, Rep. Jim Jordan (R-Ohio), incensed he would not be questioning the whistleblower, called the individual “biased against the president.” People frequently tip off police to criminal activity for biased motives — the reason doesn’t matter if evidence of criminality is there.