Closing a loophole in Sekulow's and Cipollone's response to the articles of impeachment

Signed by two of President Trump's lawyers, Jay Alan Sekulow and Pat A. Cipollone, "Answer of President Donald J. Trump" states the following:

The Democrats ran a fundamentally flawed and illegitimate process that denied the President every basic right, including the right to have counsel present, the right to cross-examine witnesses, and the right to present evidence.

Using the initials of the two attorneys' last names, let us label the three rights mentioned and claimed to have been denied during House impeachment proceedings:

SC1: to have counsel present

SC2: to cross-examine witnesses

SC3: to present evidence

The rights being claimed here come from the Sixth Amendment to the Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The rights being named in the language of the Sixth Amendment are:

SA1: to a speedy and public trial by an impartial jury

SA2: to be informed of the nature and cause of the accusation

SA3: to be confronted with the witnesses against him

SA4: to have compulsory process for obtaining witnesses in his favor

SA5: to have the assistance of counsel for his defense

So, as a matter of logic, are SC1–SC3 implied by SA1–SA5, and if so, which ones?

  • SC1 is implied by SA5
  • SC2 is implied by SA3
  • SC3 is implied by SA4

The last item is not quite as obvious as the other two, but a reasonable case can be made that when the Framers wrote "process for obtaining witnesses in his favor," they meant to imply "present evidence."

By the way, Sekulow and Cipollone might well have added that the Star Chamber proceedings in the House Intelligence Committee were by and large not public and certainly not impartial and that proceedings in the House Judiciary Committee were also not impartial — so that SA1 was also violated.

That was the easy part.  What's the hard part?

The hard part is that the Sixth Amendment talks about the rights of the accused in criminal prosecutions at trial.  The plain fact of the matter is that Article 1, Section 2 of the Constitution only states that "[t]he House of Representatives ... shall have the sole Power of Impeachment."  There is no intent here to characterize impeachment proceedings as a trial.  In fact, the issue of trial comes up in Section 3, where the language is "[t]he Senate shall have the sole Power to try all Impeachments." 

So what constitutional justification is there for claiming, as Sekulow and Cipollone do in their response, that House impeachment proceedings violated rights that President Trump has according to the Sixth Amendment when the amendment evidently applies to trials, which impeachment proceedings are not?

The answer is a version of the principle I stated in a previous article as Proposition III:

Proposition III*: If legal proceedings A and B are sufficiently similar in relevant legal respects and Sixth Amendment rights are retained during A, then they are retained during B.

Here "A" denotes criminal trials and "B" denotes impeachment proceedings.  Armed with Proposition III*, Sekulow and Cipollone can close a loophole that Democrat lawyers might try to jump through.  Anyone who thinks I'm being excessively legalistic should keep in mind how Democrats operate. 

Of course, one would have to explain why criminal trials and impeachment proceedings are "sufficiently similar in relevant legal respects."  A defense of Proposition III* belongs in a law journal, which I may write later.

Graphic credit: Blue Diamond Gallery.

Signed by two of President Trump's lawyers, Jay Alan Sekulow and Pat A. Cipollone, "Answer of President Donald J. Trump" states the following:

The Democrats ran a fundamentally flawed and illegitimate process that denied the President every basic right, including the right to have counsel present, the right to cross-examine witnesses, and the right to present evidence.

Using the initials of the two attorneys' last names, let us label the three rights mentioned and claimed to have been denied during House impeachment proceedings:

SC1: to have counsel present

SC2: to cross-examine witnesses

SC3: to present evidence

The rights being claimed here come from the Sixth Amendment to the Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The rights being named in the language of the Sixth Amendment are:

SA1: to a speedy and public trial by an impartial jury

SA2: to be informed of the nature and cause of the accusation

SA3: to be confronted with the witnesses against him

SA4: to have compulsory process for obtaining witnesses in his favor

SA5: to have the assistance of counsel for his defense

So, as a matter of logic, are SC1–SC3 implied by SA1–SA5, and if so, which ones?

  • SC1 is implied by SA5
  • SC2 is implied by SA3
  • SC3 is implied by SA4

The last item is not quite as obvious as the other two, but a reasonable case can be made that when the Framers wrote "process for obtaining witnesses in his favor," they meant to imply "present evidence."

By the way, Sekulow and Cipollone might well have added that the Star Chamber proceedings in the House Intelligence Committee were by and large not public and certainly not impartial and that proceedings in the House Judiciary Committee were also not impartial — so that SA1 was also violated.

That was the easy part.  What's the hard part?

The hard part is that the Sixth Amendment talks about the rights of the accused in criminal prosecutions at trial.  The plain fact of the matter is that Article 1, Section 2 of the Constitution only states that "[t]he House of Representatives ... shall have the sole Power of Impeachment."  There is no intent here to characterize impeachment proceedings as a trial.  In fact, the issue of trial comes up in Section 3, where the language is "[t]he Senate shall have the sole Power to try all Impeachments." 

So what constitutional justification is there for claiming, as Sekulow and Cipollone do in their response, that House impeachment proceedings violated rights that President Trump has according to the Sixth Amendment when the amendment evidently applies to trials, which impeachment proceedings are not?

The answer is a version of the principle I stated in a previous article as Proposition III:

Proposition III*: If legal proceedings A and B are sufficiently similar in relevant legal respects and Sixth Amendment rights are retained during A, then they are retained during B.

Here "A" denotes criminal trials and "B" denotes impeachment proceedings.  Armed with Proposition III*, Sekulow and Cipollone can close a loophole that Democrat lawyers might try to jump through.  Anyone who thinks I'm being excessively legalistic should keep in mind how Democrats operate. 

Of course, one would have to explain why criminal trials and impeachment proceedings are "sufficiently similar in relevant legal respects."  A defense of Proposition III* belongs in a law journal, which I may write later.

Graphic credit: Blue Diamond Gallery.