Not every constitutional law question has two sides. We don’t lose sleep, for example, over how many senators represent each state (two), or whether representation in the House must be proportional (yes), or whether the president really has to be at least 35 years old at the time he is sworn in (he does). Much of the time, the text of the Constitutionis clear beyond any reasonable dispute — leaving no room for even the most compelling policy arguments that the text should be understood to mean something else.
The right to confront is one of nearly a dozen different individual rights protected by the Sixth Amendment. Those rights apply, per the first four words of that provision, “[i]n all criminal prosecutions.” Thus, federal criminal defendants today have a panoply of protections all designed to ensure the fairness of their trial — ranging from the right to a speedy and public trial to the right to the assistance of counsel in their defense.
But only in criminal cases. Thus, an immigrant facing deportation has no Sixth Amendment right to the assistance of counsel in his removal proceeding because, despite the serious consequences that could result, removal is a civil — not a criminal — matter. A parent facing the potential removal of a child from their home likewise cannot invoke the Sixth Amendment’s right to confront witnesses against them — because custodial termination proceedings are civil, not criminal. Civil proceedings must still afford the Fifth Amendment’s looser due process protections, but that’s a far lower bar.
This backdrop should help place into context the argument, such as it is, that some Republican lawmakers and pundits have been pushing. Briefly, they claim the president should be allowed to confront the intelligence community whistleblower whose complaint set off the current firestorm over Donald Trump’s dealings with Ukraine.
With the beginning of the impeachment inquiry hearings Wednesday, this argument has moved from the fringes of right-wing media to at least some parts of the conservative legal establishment — as reflected in a column by Northwestern University law professor Steve Calabresi (who is also the chairman of the Federalist Society’s board of directors). Calabresi’s column has been cited prominently by, among others, Republican Sen. Rand Paul — who touted Calabresi’s credentials.
We shouldn’t pull punches: This argument is utterly preposterous. More than that, if it were made in a court of law, it would be sanctionable. And if one of my students made it, I’d fail them.
To be more specific, this claim suffers from three independent structural flaws. First, impeachment is not a “criminal prosecution.” Full stop. The House is investigating whether to recommend articles of impeachment against the president, nothing more. Indeed, the only thing that comes close to resembling a criminal prosecution here is the actual trial the Senate would conduct if and only if the House approves such articles.
Second, even that “trial” (which, again, is not where we are right now) is not itself a “criminal prosecution.” The Constitution’s text is explicit on this point too: As Article I, Section 3, Clause 7 makes clear, “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Someone who is removed from office “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” but that’s a separate proceeding. Were it otherwise, being removed by the Senate would mean a subsequent criminal trial would violate the Constitution’s ban on double jeopardy.
Third, even when all agree that the Sixth Amendment applies, the right to confront witnesses is not an absolute right to confront every single person who ever had anything to do with the case against the defendant; it is a right to confront those directly offering evidence that is introduced against the accused at trial. Thus, I would have no right to confront an anonymous tipster who calls the police to tell them about unlawful activity in which they’ve observed me engaging; I’d only be allowed to confront the police officer who found contraband when he searched my home that is introduced against me at trial.
Any one of these long-settled and undisputed propositions would be fatal to this argument. Together, they’re devastating. And they suggest something far more nefarious than that those making this argument are wrong — namely, that they do not honestly believe it’s a reasonable position, and are making it instead to further inflame the president’s core supporters, stoke the narrative that this is a “witch hunt” and attempt to delegitimize a process that, by any objective account, is providing far more protection to the president than the Constitution has ever been understood to require.
It’s one thing when such baseless arguments are made by politicians and pundits with no formal legal training. But when well-credentialed lawyers make these arguments publicly, it’s something else entirely. In that regard, these “legal” arguments remind me of the central criticism in Justice Robert Jackson’s famous dissent in the Korematsu case, in which the Supreme Court controversially sustained the conviction of a Japanese American for refusing to comply with the government’s internment policy during World War II.
For Jackson, the real horror was not the policy itself, but the fact that the Supreme Court voted to uphold it: “A military commander may overstep the bounds of constitutionality, and it is an incident,” Jackson wrote. But if judges review that conduct and approve of it, “that passing incident becomes the doctrine of the Constitution.” In other words, it wasn’t internment itself that was such a dark stain on the rule of law; it was the fact that lawyers and judges made it legal.
So too, here. Especially these days, it shouldn’t surprise us when partisans make facially indefensible arguments about the Constitution. Indeed, we should take great solace in the fact that the Constitution guarantees their right to do so. But it should surprise and alarm the heck out of us when those arguments come from lawyers and legal scholars — from those most responsible for protecting the rule of law, rather than promoting its erosion.
- Steve Vladeck is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog and co-host of the National Security Law Podcast.
This piece was first published by NBC Think.
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