The House decision to refuse to provide material to the Trump administration that would tend to show his innocent, so-called Brady material, is stunning.
The Star Chamber House impeachment inquiry is anything but a fair investigation with justice as its goal. It is the antithesis of due process of law. It is a grossly unfair process designed to produce a desired result, not a just and fair result. House Democrats claim that, because the Constitution does not itself define “impeachment” or dictate a process, that they are free to adopt a process free of any semblance of due process for President Trump. Our history holds otherwise.
The House Resolution that passed today to “formalize” the House procedures for the impeachment inquiry — a resolution carefully worded so that it could not be mistaken for an “impeachment resolution” that would trigger rights for Republicans in the House — was meaningless. It did nothing more than restate the rules of the faux impeachment inquiry applied by the House Democrats since Sept. 24, when Pelosi announced an “impeachment inquiry.” I covered that here, and nothing has changed with but one exception. As I pointed out yesterday,
I am in the Rules Committee room where Democrats are marking up their impeachment resolution.@RepDLesko offered an amendment requiring any evidence which is exculpatory regarding the President to be given to the Judiciary Committee.
Democrats rejected it.
— Morgan Griffith (@RepMGriffith) October 30, 2019
And that is breathtaking — namely that House Democrats have refused to agree give any information gleaned during its Hearings to the Trump Administration that would tend to prove Trump’s innocence or impeach the witnesses for the House. On top of the refusal to allow attorneys for Donald Trump to participate in the Hearings, the Democrats have embraced a process that is so fundamentally unfair and so inimical to due process that, while Dostoyevsky or Beria would recognize it, John Adams and James Madison would not. This is an obscenity.
In other words, what the Democrats have created is a process by which no information will be released to the public — or to attorneys for Donald Trump — that does not support Schiff’s impeachment narrative. If the Democrats have their way, the only thing that will be made public are those facts that they can use to impeach Trump, not any facts that they discover that prove Trump’s innocence.
The words “due process of law” have come to encompass many things, all of which are in answer to the question, “who watches the watcher?” The whole concept of due process ultimately frames around that issue, providing that numerous unbiased people have to be involved in any approving any legal process to ensure that it is fair. Pelosi has arranged a process where Adam Schiff and Jerry Nadler have plenary power. What the House Democrats have embraced is but a bare patina of due process. They are conducting a plethora of hearings but are not planning, it seems, to do anything other than selectively release the information elicited that support their desired narrative. It seems unlikely, on the facts as they are now, that attorneys for Trump will ever even be able to access those transcripts that Schiff does not want to release.
The concept of due process of law as a fundamental principal of English — and since 1789, American — law predates the Magna Carta of 1215. The meaning of “due process of law” has evolved over the near millennium since 1215. In the United States, ever since Brady v. Maryland, almost three quarters of a century ago, it has been a cornerstone of due process of law that any prosecution by the State must include disclosure of material learned during the investigation that goes to the Defendant’s innocence. To do anything else is a “deception” of, in this case, the American people. It “does not comport with standards of justice” anyone should expect in this country as their birthright.
When you hear some idiot claim that the House is doing nothing more than conducting a “grand jury” proceeding, note that such a proceeding must comply with Brady. The House is not conducting a “grand jury” style impeachment in any way shape or form.
Indeed, Supreme Court Justice Story, in his seminal work, Commentaries on the Constitution, Vol. II (1833), discussed impeachment at some length. (emphasis added). As he understood the term, impeachment was controlled by the common law of England and America. That meant that anyone subject to impeachment was entitled to due process:
The doctrine, indeed, would be truly alarming, that the common law did not regulate, interpret, and control the powers and duties of the court of impeachment. What, otherwise, would become of the rules of evidence, the legal notions of crimes, and the application of principles of public or municipal jurisprudence to the charges against the accused? It would be a most extraordinary anomaly, that while every citizen of every state, originally composing the Union, would be entitled to the common law, as his birth-right, and at once his protector and guide; as a citizen of the Union, or an officer of the Union, he would be subjected to no law, to no principles, to no rules of evidence.
It is the boast of English jurisprudence, and without it the power of impeachment would be an intolerable grievance, that in trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail. For impeachments are not framed to alter the law; but to carry it into more effectual execution, where it might be obstructed by the influence of too powerful delinquents, or not easily discerned in the ordinary course of jurisdiction, by reason of the peculiar quality of the alleged crimes. Those, who believe, that the common law, so far as it is applicable, constitutes a part of the law of the United States in their sovereign character, as a nation, not as a source of jurisdiction, but as a guide, and check, and expositor in the administration of the rights, duties, and jurisdiction conferred by the constitution and laws, will find no difficulty in affirming the same doctrines to be applicable to the senate, as a court of impeachments.
Those, who denounce the common law, as having any application or existence in regard to the national government, must be necessarily driven to maintain, that the power of impeachment is, until congress shall legislate, a mere nullity, or that it is despotic, both in its reach, and in its proceedings. It is remarkable, that the first congress, assembled in October, 1774, in their famous declaration of the rights of the colonies, asserted, “that the respective colonies are entitled to the common law of England;” and “that they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization, and which they have by experience respectively found to be applicable to their several local and other circumstances.” It would be singular enough, if, in framing a national government, that common law, so justly dear to the colonies, as their guide and protection, should cease to have any existence, as applicable to the powers, rights, and privileges of the people, or the obligations, and duties, and powers of the departments of the national government. If the common law has no existence, as to the Union, as a rule or guide, the whole proceedings are completely at the arbitrary pleasure of the government, and its functionaries in all its departments.
I do not see how even providing for due process of law in the Senate can make fair such a procedure. If the progressive Democrats do not drive us into a place where politics and the courts can no longer answer our grievances, I will be surprised.