Well, we are certainly hearing a lot from Trump, and the stalwart Republicans backing him, about how the House is not affording Trump his due process in its investigation. There is one serious flaw with that allegation: this is an investigation and not a trial.
So what does that mean? Well, let’s put it in more day to day methods most people can at least draw on cop and lawyer television shows as a way to somewhat identify. Due process is your right to a fair trial and to made aware of the charges against you. It allows you to cross examine witnesses, have an attorney represent you and question those witnesses, offer witnesses of your own, and see what evidence has been brought to support the charges.
The problem here with screaming about due process is that there are no charges – at least not yet. The closed door testimony currently being conducted by House Committees is equivalent to a police or other law enforcement investigation. Suspects are not entitled to cross examine witnesses interviewed by law enforcement during the investigative phase. In fact, the opposite is true. It is actually illegal to contact those witnesses and discuss the issues with them or ask what they told investigators as it is seen as witness tampering, impeding an investigation, and obstruction of justice. This is the stage currently being conducted by House Committees at the moment. They have subpoena power because they are a governing body, rather than a law enforcement agency, so they use the subpoena instead of warrants (to compel evidence).
The next phase, deciding whether to introduce articles of impeachment, is after the initial investigative phase. This is basically when law enforcement passes the case on to the District Attorney or Attorney General, as the case may be. They will conduct additional interviews of witnesses, request additional information and then put it all up before the entire House to hear and view the evidence and witnesses in the case. The entire House will listen, review and ascertain the credibility of the information it has received and act as a Grand Jury.
In most Grand Juries, the accused does not testify nor do they have the option to cross examine witnesses. A Grand Jury does not determine guilt or innocence, only the reasonable possibility that a crime has occurred. Ever heard the term, “you can indict a ham sandwich,” before? It is because the bar is fairly low for an indictment. The accused has yet to enter the domain of “due process” until an indictment is handed down.
If the House votes to impeach Trump, then it has handed down the governmental equivalent of an indictment. It is at this point when due process kicks in. His representatives will have the right to view evidence and even interview witnesses, within certain perimeters so as to avoid witness tampering, obstruction, or witness intimidation. The witnesses also have the right to decline interviews from the accused or his representative, outside the courtroom.
The trial is held in the Senate. Senators act as the jurors and are charged in the same manner to evaluate the evidence and arguments presented by both sides in the case without outside influence or interference. A responsible senator should take this job very seriously and not walk in with any preconceived notion of events. It does not matter what they have heard on the news, on talk shows, across Twitter or Facebook feeds, or what anyone else thinks. They should hold themselves to the exact same standard we expect from every day citizens asked to sit on a jury panel and hear a case, criminal or civil. All personal issues should be set aside. They should only be compelled by what is presented.
The House of Representatives will send a team to act as the prosecutors, detailing the alleged crime(s), present evidence and witness testimony. The Defense will have the opportunity to dispute the evidence with evidence of their own, cross examine prosecutor witnesses, and call witnesses on their own behalf. Each side will have the opportunity to present factual arguments. The Senate will then vote based (theoretically) solely on the evidence presented and work outside political alliances. It requires a super majority vote of Senators to convict and remove a president from office.
This is the process. Not too far from an episode of Law and Order, right? This is how due process plays out. Trump is entitled to due process IF he is indicted, or, in the political realm, impeached. Impeachment=Indictment. Just as with the investigation of any citizen by law enforcement, if records or testimony is subpoenaed or a warrant for documents is issued (for a governing body, warrant and subpoena are hand in hand) then the person to testify, whether hostile or voluntary, must appear and testify or they break the law and obstruct justice. If they are required by the subpoena or warrant to provide documents in their possession, then they MUST do so, or they are breaking the law. They do not have the option of withholding information which incriminates themselves. They make exercise the Fifth Amendment in their testimony, but this does not extend to anything which can be admitted as evidence, such as documents, videos, recordings, banking or other financial statements, etc..
I might also throw in that attorney-client privilege does not extend to conspiracies to commit a crime. Meaning, if you make plans with your attorney to commit a crime, those conversations are not protected in the same way as typical attorney-client discussions and deliberations are. Your attorney is not allowed to commit crimes on your behalf or at your request or suggestion and you both get out of it because it is all protected. That is not how it works, and for very good reason.
So, the stalwart Right are pushing this notion that Trump is being treated unfairly or outside the perimeters of due process and justice. They want to paint the picture of a an illegitimate process. It is not. They are hoping you are ignorant. If you’ve read this, you can’t claim ignorance. But by all means, research what I’ve told you. Look it up. I encourage everyone to take no one’s word at face value and look at the evidence as it is presented.
I would also like to point out that it is very smart that the House has not yet held a vote. That would literally be making decisions before hearing evidence. And this is not a favor to Democrats, either. They easily have the votes. This is a favor to Republican Representatives. It allows them to actually see evidence before making a decision on their vote. It prevents them from being targeted. Many believe the inquiry is appropriate, and likely hope it proves to be without merit once the investigation is completed. But it leaves them open to accepting damning evidence should it surface. Pelosi’s move here is to protect the body of the House and the dynamic benefit is to moderate leaning Republicans.
So, now you know! Don’t get played. No due process has been denied. Those are smoke and mirror tactics to confuse and inflame an uninformed public.
Let’s let the process play out as it should and must. This is what defines our nation. This is literally the process that holds true the idea that no one man or woman is above the law, least of all someone who has been entrusted by the people. This is as patriotic and American as it gets.
We are One Woman, One world.