When The Federalist’s senior editor Mollie Hemingway last week claimed the impeachment investigation of Donald Trump violated the President’s Sixth Amendment right to confront his accuser, she was resoundingly castigated by legal experts who pointed out that the amendment only applies to criminal proceedings. Despite severe scholarly backlash, the argument has continued to gain traction among the President’s supporters and Saturday, a respected law professor became the latest backer of the much maligned constitutional interpretation.
In an op-ed on the Tucker Carlson founded Daily Caller website, Northwestern School of Law professor Steven G. Calabresi wrote that House Democrats’ investigation into Trump’s abuse of power was itself a serious abuse of power.
“Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him,” Calabresi wrote.
Calabresi, who is the Chairman of the Federalist Society’s Board of Directors, supports his argument by citing to the U.S. Constitution’s Sixth Amendment, which provides that, “in all criminal prosecutions, the accused shall enjoy the right […] to be confronted with the witnesses against him.”
“[T]he Sixth Amendment guarantees Trump the right ‘to confront the witnesses against him,’ which right House Democrats are denying to Trump,” Calabresi wrote.
“The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right.”
Calabresi does not address the fact that the Sixth Amendment only applies to criminal prosecutions, not impeachment, nor does he cite to the specific Supreme Court cases which he says support his claims. Law&Crime has reached out to Calabresi for clarification on these points.
Additionally, he states that those attempting to impeach the president should be expelled from Congress for conducting an unconstitutional “Kafkaesque ‘trial.’”
“For House Democrats to conduct an impeachment investigation while violating multiple rights that Trump enjoys under the Sixth Amendment is a gross abuse of power, which is at least as serious as any abuses of power committed by Trump.
Legal scholars, many of whom are Calabresi’s professorial colleagues, immediately condemned his op-ed as intellectually dishonest propaganda.
“Yikes. Calabresi is chairman of the board of the Federalist Society, which is now clearly all-in on Trump (or at least his judicial appointments). What’s worse is I’m sure Calabresi *knows* that impeachment in the House is akin to a grand jury investigation, not a trial,” wrote Fordham Law School professor John Pfaff.
Pfaff also accused Calabresi of “trying to pretend that the investigation is the trial—which it isn’t, and even the Senate trial isn’t a *criminal* trial, a distinction I’m also sure Calabresi knows but blurs here.”
Former Department of Homeland Security attorney and lecturer at George Washington Law Paul Rosenweig was less kind in his assessment, saying, “This is so embarrassingly incorrect as a matter of law, that if Steve did not already have tenure he would be denied it on this basis alone.”
After reiterating the “criminal prosecutions” argument, George Conway, husband to senior White House advisor Kellyanne Conway, provided an additional historical rebuttal to Calabresi.
“Even in Britain, where impeachment extended beyond removal of public officers but also to charge private citizens for crimes not prosecuted by the Crown, and thus more closely resembled a criminal prosecution, the rights now embodied in our sixth amendment did not apply in the charging phase before the House of Commons.”
Reactions continued to pour in the hours since Calabresi’s op-ed was posted.
Columbia Law School professor Jamal Greene:
Notably, it would follow under this analysis that grand juries routinely violate the Sixth Amendment as well.
— Jamal Greene (@jamalgreene) November 9, 2019
Former special counsel at the Department of Homeland Security Eric Columbus:
At some point Steve Calabresi was a serious guy and not a hack, right? What happened?
— Eric Columbus (@EricColumbus) November 9, 2019
[image via Alex Wong/Getty Images]