Trump’s Procedural Rights Curbed During Impeachment Inquiry, Legal Scholar Says

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The New York Law Journal covered the remarks of impeachment expert, Cass Sunstein, during his appearance at Fordham Law School on October 15th. Sunstein’s talk centered around the legal process and ramifications of impeachment as it relates to the current impeachment inquiry against President Trump.

Just last week, White House Counsel Pat Cipollone wrote in a letter to Democratic leaders in Congress that they took issue with not being afforded the opportunity to review evidence, cross-examine individuals, and subpoena their own witnesses.

But Sunstein said, during his remarks at Fordham Law, that the Trump administration isn’t afforded that right during the impeachment inquiry.

“The argument was that the president has been denied due process because there’s no cross examination going on in the House,” Sunstein said. “The first thing to say is that it’s not a criminal trial and there’s no right in these things to cross examination.”

That same letter from the White House last week appeared to suggest that the Trump administration would stand in the way of efforts by federal lawmakers to seek participation in their impeachment inquiry by individuals within the executive branch of government.

Sunstein cautioned against any efforts by the Trump administration to block those requests from Democrats, likening that behavior to similar actions taken by former President Richard Nixon during his own brush with impeachment.

“The White House right now … would be well-advised to be very careful about refusing to respond to subpoenas,” Sunstein said. “There would be a lot of explaining to do to justify the conclusion that that’s not an impeachable offense in the context of an impeachment inquiry.”

Sunstein also said that, if the House goes forward with a vote on articles of impeachment against Trump in the future, the Senate would have no option but to hold a trial on those claims. To do otherwise, he said, would be to contradict the intent of the U.S. Constitution.

“The Senate is constitutionally obliged to hold a trial. It can’t just say no,” Sunstein said. “If the House sees fit to impeach the president, then the Senate seems obliged to do its constitutional homework.”

The event was co-sponsored by Fordham Law School and the New York State Writers Institute from the University at Albany.

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