“The due process clause applies to this impeachment hearing, and it’s been severely and extremely violated.”
— Trump attorney Michael van der Veen, responding to senators’ questions at Trump’s impeachment trial, Feb. 12, 2021
This falsehood is rich with hypocrisy.
The day before these remarks, Trump’s legal team was meeting with Republican senators to strategize on Trump’s defense. Forget about due process. Any lawyer who tried this with jurors in court would be sanctioned or disbarred.
Luckily for Trump, it was not a judicial proceeding. It was political. The House and Senate each set their own rules on impeachment. Each chamber votes. There’s no appeal. The end.
The Constitution guarantees due process to defendants in court facing a potential loss of “life, liberty or property.” Nowhere does it grant the same rights to public officials facing impeachment, removal or disqualification from future officeholding.
The House impeached Trump a second time this year, for allegedly inciting the insurrection at the Capitol on Jan. 6 while seeking to delay the certification of President Biden’s victory in the 2020 election. Trump for months had been promoting the lie that rampant voter fraud cost him a winning margin of victory in key states.
“I said something’s wrong here, something is really wrong,” Trump said at the close of his speech on Jan. 6, in which he repeatedly urged supporters he had summoned to Washington to march on Congress. “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
The mob stormed the Capitol, delaying the vote certification for hours. Five people, including a police officer, died as a result. Many of the rioters have said they were incited by Trump. He denies any responsibility.
The Fifth Amendment grants bedrock protections to anyone facing legal liability. Any serious criminal charge must be approved by a grand jury. Prosecutors cannot charge the same offense more than once (the “double jeopardy” rule). Defendants have a right against self-incrimination (“pleading the Fifth”). “Just compensation” must be given when the government seizes private land for public use.
The amendment also says no one shall be “deprived of life, liberty, or property, without due process of law.” This right is available in federal courts and in state courts through the 14th Amendment, which says, “No state shall … deprive any person of life, liberty, or property, without due process of law.” (It is the only phrase that appears twice in the Constitution.)
Due process means the government must follow the law, its own rules and procedures, the same way in each case to ensure fairness.
Other constitutional amendments give defendants the right to legal counsel and to call witnesses, the right to examine the evidence against them and confront their accusers.
Impeachment in Congress is different altogether. The Constitution requires a majority vote in the House to impeach a public official and a two-thirds vote in the Senate to convict. The maximum penalty is removal from office and a ban from future officeholding.
The House, which acts as a sort of prosecutor, has the “sole power” of impeachment. The Senate, which acts as a mix between judge and jury, has the “sole power” to try all impeachments. The Constitution says “each house may determine the rules of its proceedings.”
The Supreme Court unanimously ruled in 1993 that the Senate’s “sole power” to try impeached officials was a strong one. Courts may not step in to resolve disputes concerning the rules and procedures senators use to conduct impeachment trials, the justices ruled.
Such disputes are “nonjusticiable,” Chief Justice William H. Rehnquist wrote for the court in Walter Nixon v. United States, meaning they cannot be heard by judges unless they involve the basic requirements listed in the Constitution (such as a two-thirds majority of senators needed to convict).
Nixon, a federal judge who had been impeached, argued that the full Senate had to conduct his trial and could not delegate parts of it to a committee. The Supreme Court disagreed. Rehnquist wrote that the 1993 case “involves a political question” and that “the word ‘sole’ indicates that this authority is reposed in the Senate and nowhere else.”
“The due process clause by its terms does not apply to the context of a Senate impeachment since it specifies that individuals are entitled to due process of law before they can be deprived of ‘life, liberty, or property,’ ” Keith E. Whittington, a politics professor at Princeton University and expert on impeachment, told The Fact Checker. “The punishments that the Senate can impose after a conviction in an impeachment trial extend to none of those things.”
“The Constitution simply says the Senate has the sole power to try all impeachments, and provides no guidance or detail about what such a trial would entail,” he added. “Historically, the Senate has not recognized that the same procedural features of a federal criminal trial need to be carried over into an impeachment trial. The rules of evidence and the procedures of trial are different.”
Michael J. Gerhardt, a law professor and authority on impeachment at the University of North Carolina School of Law, pointed out that Trump nevertheless has received some of the same protections a defendant would get in court. The Senate rules allowed him to request witnesses (he hasn’t), plead his case (he did) and examine and challenge the evidence (his lawyers were apprised in advance of the House managers’ exhibits).
“The argument that due process has been violated here has some political appeal, but it is wrong for two reasons: First, the clause does not apply because none of the interests protected by the due process clause are being denied here — the sanctions are removal and disqualification but not the deprivation of life, liberty, or property, which the clause protects,” said Gerhardt, who was called to testify in the House as a legal expert during Trump’s first impeachment in 2019.
“Second, even if due process applies, it has been satisfied here: The minimal requirements of due process are an impartial decision-maker and notice. The president has had plenty of notice about the impeachment effort, and the Constitution designates senators as the impartial decision-makers (which is why they take an oath to be impartial).”
A conservative legal scholar, Ed Whelan of the Ethics and Public Policy Center, tweeted: “Of course the Senate should use fair procedures, and it’s fine to debate what those should be. But the idea that the Due Process Clause of the Fifth Amendment has any bearing on the Senate impeachment trial is ridiculous.”
Schoen and van der Veen, a personal injury lawyer, did not respond to requests for comment sent to their offices Friday. Trump’s legal team included this false claim about due process in a pretrial brief: “The House of Representatives deprived the 45th President of due process of law in rushing to issue the Article of Impeachment by ignoring [its] own procedures and precedents going back to the mid-19th century. The lack of due process included, but was not limited to, its failure to conduct any meaningful committee review or other investigation, engage in any full and fair consideration of evidence in support of the Article, as well as the failure to conduct any full and fair discussion by allowing the 45th President’s positions to be heard in the House Chamber.”
For this impeachment, the House for the first time in history approved the charge directly on the floor, without a committee hearing, after the events of Jan. 6.
“Even last year’s impeachment followed committee hearings and months of examination and investigation by the House,” Schoen said. “Here, President Trump and his counsel were given no opportunity to review evidence or question its propriety.” He lamented the “denial of due process.”
But Trump’s attorneys also falsely claimed he was denied due process in 2019, when the House held extensive hearings about Trump’s decision to withhold congressionally approved funds for Ukraine’s defense while he pressured the country’s president to dig up dirt on Biden. Then, as now, none of Trump’s attorneys was able to point to a constitutional provision that supports these due process claims.
The Pinocchio Test
A Senate trial for impeached public officials should be fair. But by claiming “due process” violations, Trump’s attorneys are invoking a specific set of rights and protections under the Fifth and 14th amendments that do not apply to impeachment.
And yet, Trump got many of these protections anyway. He got even more than a defendant in court would get; his legal team was able to meet with Republican senators who were serving as jurors.
The Trump presidency may be over, but Schoen and van der Veen have the unfortunate distinction of earning Four Pinocchios just as the show was coming to an end. They should read the Constitution.
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