Does Due Process apply to Constitutional Impeachment Actions? Part One

The hand-written copy of the proposed Bill of Rights, 1789, cropped to just show the text that would later be ratified as the Fifth Amendment, See https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

The Fifth Amendment to the United States Constitution states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In the recent (2019) news reports there have been complaints made, primarily by people in the Executive Branch of the Federal Government, that the Impeachment process at the time of the writing of this post is violative of the right to due process of the President of the United States. These claims raise some interesting legal issues including, but not limited to, the extent to which the Constitutional mandate regarding due process is applicable to an impeachment process.

The power to bring and prosecute an impeachment is contained in the United States Constitution:

There are several provisions in the United States Constitution relating to impeachment: 

Article I, Section 2, Clause 5 provides:
The House of Representatives ... shall have the sole Power of Impeachment. 

Article I, Section 3, Clauses 6 and 7 provides:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. 

Article II, Section 2 provides:
[The President] ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. 

Article II, Section 4 provides:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. 

See https://en.wikipedia.org/wiki/Impeachment_in_the_United_States

Quoting the Bill of Rights Institute website article on impeachment:

The process of impeachment was outlined in the Constitution when it was drafted in 1787. To date, 19 officials, including judges, cabinet members, senators, and presidents, have been impeached and stood trial. The crimes these individuals have been charged with range from perjury to conspiracy to intoxication on the bench. It is important to note that impeachment is not the actual removal from office, but merely the process to remove an official. Currently, members of the House of Representatives are investigating President Trump to determine if he should be impeached.

Section 1 of the 14th Amendment to the Constitution also granted due process rights along with citizenship to all persons born or naturalized in the United States. Here is Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Clearly, this provision of the 14th Amendment pertains to actions taken by the several states and not the Federal Government.

The sections of the Constitution that mention impeachment do not contain any reference to due process. It would appear to me that the mention of due process in the Fifth Amendment is strictly limited to the causes of action and proceedings thereon that are enumerated and an impeachment proceeding does not fall within the definition of any of the items mentioned. For this reason alone, I would have to take the position that those accused of "Treason, Bribery, or other high Crimes and Misdemeanors" have no claim to due process. However, it would be helpful to see whether or not a claim of due process was made in any of the other 19 impeachment cases.

Fortunately, I can search all of the Federal Court cases online as well as the Supreme Court cases. There turn out to be hundreds of thousands of references to due process in all in the District Courts around the country. However, given that there are only a handful of Federal impeachment actions involving officials,  it is possible to determine if the Supreme Court (or any other Federal Court) has weighed in on the issue of application of due process.

A recent Los Angeles Times article entitled, "Opinion: Sorry, Mr. President, the House is giving you far more due process than the Constitution requires." contained the following statement:

In many ways, the House of Representatives functions likes a grand jury in a criminal case, and an impeachment often has been likened to an indictment. As with the grand jury, the House decides whether there should be a trial. But the usual requirements of due process never have been found to apply at the grand jury stage precisely because there is no deprivation at that point. In fact, grand jury proceedings in many ways are the antithesis of due process: only the prosecution is present; the defendant is not allowed to call witnesses or present evidence; everything is done in secret.

 If this analysis is correct and I do agree with the analogy and the conclusion, then talking about "due process" in the context of an impeachment action by the U.S. House of Representatives is what is commonly called in the law, a "red herring" or issue that has nothing at all to do with the action.

Over the next few days, I will spend some time looking at Supreme Court cases. Unfortunately, there is a much more common legal issue that is called "impeachment of evidence." This is an action by one party to a lawsuit to discredit the reliability of the evidence presented in a trial and has nothing at all to do with the removal of a government official. Sorting the evidence cases out from among rulings in actual impeachment cases is a challenge.

Stay tuned.

My Life and the U.S. Post Office: A Saga of Extraordinary Proportions

In December of 2017, my wife and I began serving a mission for The Church of Jesus Christ of Latter-day Saints in the Washington, D.C. North Mission. We served as Record Preservation Specialists in the Maryland State Archives in Annapolis, Maryland. In preparation for our year in Annapolis, using an address that we had been given for our apartment, we submitted "change of address" forms with the United States Post Office. This seemingly simple event was to wreak havoc with many aspects of our lives over the next year and for nearly a year after we returned to our permanent residence in Provo, Utah.

After driving across the United States from Utah to Maryland, we followed the directions given us, checked into the residence office of the apartment building, and began unloading our car to move into an apartment that was up two flights of stairs. We were unable to get the key we had been given to work and finally called the apartment maintenance for assistance. With the maintenance person's help, we quickly learned that the apartment was still occupied. After a few telephone calls, we learned that our apartment was in another building in the same complex with the same apartment number but a different building number. We then carried all of our baggage back down the stairs and began the process all over again with the other apartment.

We began our service at the Maryland State Archives, and immediately went to the main post office in Annapolis, explained the mixup with our apartment and filed the documents changing our address yet again, this time to the right apartment. Mail was coming almost immediately to the wrong apartment but since we lived in an adjoining building, we could frequently check for mail. We have several important business connections and we were concerned that the mail would get lost.

As the weeks passed, we were still getting most of our mail to the wrong apartment. In fact, mail sent to our permanent residence in Utah was being marked and forwarded to the wrong Annapolis address. People who requested a notice of change of address were being notified of the wrong Annapolis address. Some mail started to come to the right apartment, but there was always some mail going to the wrong address.

Over the next few months, we made regular trips to the post office to try and get the forwarding order removed from our residence. We talked to supervisors, we filled out additional forms online and on paper and nothing seemed to work to get the wrong address dropped from the Post Office system.

This continued for the entire year we were in Annapolis. At the end of the year, we filled out more change of address forms and left to go back to Provo, Utah. When we got to Provo, we had a huge pile of mail and to our consternation found that some of our Provo mail was still being forwarded to the old wrong apartment, not the second apartment, but the one we never lived in. We then started our trips down to the Provo Post Office to start filling out the forms and talking to the managers. As the weeks and months passed again we found that no matter what we did, the mail kept being forwarded to Annapolis.

Finally, after going back through the process yet again, we thought we had the matter resolved after nearly a year and half of telling everyone we could talk to at the Post Office that we never lived in the old apartment and did not want our mail sent there. Fortunately, we had some of the missionaries who served with us at the Archives who could tell us about any mail that showed up and either send us digital copies or forward other important letters.

As a result, we have subscribed to the Post Office Online Notification system where they send us digital copies of each day's mail. Recently, we got notification of a check that was to be delivered on the day of the notice. When the check did not appear in our mailbox, we began the process of trying to find out if it had been stolen or misdelivered. After a week of calling and going to the Post Office, no one seemed to know what happened to the missing check. After more than a week, we finally got an email from the check's sender who notified us that the check had been returned marked that the address was wrong. But the address on the envelope was not wrong, it was our residence address exactly correct. Since our friends have now also left Annapolis, I am quite certain that some mail is still going to the wrong apartment. I am also concerned that the Post Office can no longer find my home in Provo.

I am sure there is some lesson to be learned from this experience but I do not know what it is. I would simply start using UPS or FedEx but then I had a whole shipment lost by FedEx and they refused to deliver it to the right address because the wrong address was on the package.

I think our society has passed the critical mass of complexity. We are now living on borrowed time. Organizations such as the Post Office that still handle so much of their business on paper are doomed to become critically ineffective and outmoded. Even those companies that have "computered up" are challenged to keep up with the volume of communication that is increasing every day. How many important items of business are being lost because the Post Office (or FedEx or whomever, cannot possibly work without making errors? Meanwhile, we are trying to move even more of our correspondence to electronic means where we can question the recipient about the receipt and resend the information immediately.