Explainer: Does the impeachment probe violate Trump's civil rights?

(Reuters) - The White House says U.S. President Donald Trump will refuse to cooperate with the impeachment inquiry by the Democratic-led House of Representatives on the grounds that it is fundamentally unfair and violates his legal rights.

FILE PHOTO: With a portrait of former U.S. President Andrew Jackson hanging in the background, U.S. President Donald Trump speaks as he awards the Presidential Medal of Freedom to former Attorney General Edwin Meese in the Oval Office of the White House in Washington, October 8, 2019. REUTERS/Leah Millis

In a letter to top House Democrats, White House Counsel Pat Cipollone said Trump’s lawyers must be allowed to call and cross-examine witnesses, access evidence, and be afforded other “basic rights guaranteed to all Americans.”

Legal experts say because impeachment is a political, and not legal, process, the House has broad authority to set the ground rules for an inquiry. Allowing Trump’s lawyers to participate anyway could build public support and make it appear more fair, however, they said.

The following explains Trump’s positions and the procedures followed in the past, and examines whether the current inquiry does indeed violate Trump’s constitutional rights.


Cipollone said the House has “not established any procedures affording the President even the most basic protections demanded by due process under the Constitution and by fundamental fairness” in violation of “every past precedent.”

Trump should have the right to access evidence, examine witnesses, and have counsel present at hearings, Cipollone said. The Committees must also disclose evidence that is favorable to the president, he wrote.

Cipollone argued that Republican lawmakers should be allowed to issue subpoenas, a tool that would enable them to present their own evidence and try to undermine the Democrats’ arguments.

The White House also said the investigation was not legitimate because the full House had not voted to authorize it, reiterating an argument frequently made by some Republican lawmakers.

House Democratic leaders had no immediate response to the letter. But rank-and-file members called it an act of desperation that would not stop their inquiry.


Some of the protections requested by the White House were given to former presidents Bill Clinton and Richard Nixon.

For example, the House allowed Nixon’s defense lawyers to respond to evidence and testimony during his impeachment inquiry. Nixon resigned from office in 1974 before being impeached.

Twenty-five years later, Clinton was afforded similar protections. Clinton was impeached by the House but not convicted by the Senate.

In both of those cases, the House held a full vote to authorize an impeachment inquiry. There was no such vote in 1868 in the case of Andrew Johnson, the only other president to face impeachment.


According to several experts, no.

Frank Bowman, a law professor at the University of Missouri, said the U.S. Constitution gives the House the freedom to set its own ground rules for the process.

No full vote is needed to authorize an investigation and the House is not obligated to let Trump’s lawyers participate, Bowman said.

“Trump has no standing whatever to insist that the House do impeachment the way he would like it done,” Bowman said.

And while Trump often turns to the courts for relief, that is not an option here, experts said.

Michael Stern, a former congressional lawyer, said the federal courts, including the Supreme Court, would not review the legitimacy of an impeachment inquiry.

“There is no role for the courts in that process,” said Stern, who served as Senior Counsel to the House from 1996 to 2004.

But legal experts agreed that giving Trump some basic protections and allowing his lawyers to participate would make the process more fair. That could be a wise political move for Democrats, said Ross Garber, an impeachment lawyer in Washington.

Bypassing due process safeguards that are standard in the U.S. legal system “may make the American people question the legitimacy of the impeachment process,” Garber said.

Reporting by Jan Wolfe; Editing by Noeleen Walder and Sonya Hepinstall