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.