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.

An LDS response to the Pew Forum on Religion and Public Life

The Pew Forum on Religion and Public Life has published "A Portrait of Mormons in the U.S." After studying some of the responses, I thought a response from a Mormon perspective would be appropriate. The current study is based on interviews with more than 35,000 American adults. As the introduction states the Survey "details the religious makeup, religious beliefs and practices as well as social and political attitudes of the American public." I had previously presented some of the findings of the Survey in another blog.

Statement:
"Today, members of the Church of Jesus Christ of Latter-day Saints and other Mormon groups make up 58% of Utah's population and 1.7% of the total U.S. adult population..."

Response:
From the perspective of a member of The Church of Jesus Christ of Latter-day Saints (LDS) I feel it is confusing to refer to "other Mormon groups." The detail of the Survey shows less that .1% members of the Community of Christ (the former Reorganized Church of Jesus Christ of Latter-day Saints) and "Mormon" not further specified. There is no church called the "Mormon Church." The name comes from The Book of Mormon. One of Church's official Websites explains that the Mormon Church is "A commonly used term to describe Christ's restored church, however the official name is The Church of Jesus Christ of Latter-day Saints."

Statement:
"This report analyzes Mormons as a whole."

Response:
The Church of Jesus Christ of Latter-day Saints is in no way affiliated with or part of any other church organization. The Community of Christ is not part of or affiliated with the LDS Church at all. There are other organizations that use names similar to or derived from the LDS Church but they are not part of the LDS Church.

Statement:
"Mormons make up 1.7% of the American adult population, a proportion that is comparable in size to the U.S. Jewish population. By contrast, members of evangelical Protestant churches and Catholics each make up roughly a quarter of the adult population (26.3% and 23.9%, respectively), and 16.1% of Americans say they are unaffiliated with any particular religion."

Response:
This is an unfair and misleading comparison. The Yearbook of American & Canadian Churches lists 224 national church bodies. Members of the LDS Church belong to that specific Church. They are not members of a vague group called "evangelical Protestant churches." Many studies show the LDS Church as the fourth largest denomination in the U.S. See also Christian Church Membership. In the top 25 largest churches in the U.S. only the Catholic Church, the Southern Baptist Convention and the United Methodist Church are larger than The Church of Jesus Christ of Latter-day Saints.

To be continued.

Listening to the wind

Growing up in Arizona, especially in northeastern Arizona on the Colorado Plateau, you get a lot of opportunity to listen to the wind. The wind tells you a lot about what is happening around you and what might be coming. A wind from the south and east brings clouds and rain. A wind from the north and west comes only in the winter and brings cold and sometimes rain. Because of a huge stationary high pressure area over the Four Corners, winds blowing from the south and west seldom bring anything except hot, dry weather.

Since I was a lot younger and spending time outdoors on the Plateau, I have noticed that the wind patterns have changed. Not enough to notice from day to day, but over a year's time the clouds no longer move in the same directions and the weather is not so predictable. I used to watch the sky and could tell within a few minutes when the rain would begin, now it is not so easy. I used to watch the lightning over the White Mountains and now this is a rare event and not just because I no longer live up on the mountain.

Watching the country and our society, I see a shift in the way our country is drifting. It is just like the wind, the changes are mostly subtle and only noticeable over a long period of time, but just like the changes in the storm patterns on the Colorado Plateau, our country is fundamentally different than it used to be.

One marked change is that I notice that people have generally become entirely materialistic. They want the latest large screen TV, the latest, newest and most expensive gadget, car or phone. No one seems satisfied with what they have, they always want more, more food, more entertainment, more free time, more vacations. Almost no one lives a conservative life style, even young, newly married couples I know, want and take international cruises and trips to exotic locations. All people talk about at work, besides the latest illness or accident, is what they are going to purchase or where they are going for their next vacation. These are not wealthy people, but young married and unmarried people who are making an average or below salary.

Recently, I saw an announcement for a business expansion. The Chief Executive Officer extolled the virtues of their newly enlarged business with a "host of guest amenities, including flat-screen televisions" and "free valet drivers to park your car." The public was invited with their families for a free tour and light refreshments "so they can get acquainted with the new space first hand." You might imagine that this was a hotel or restaurant, no, this new expansion was a hospital emergency room! Just think about it, you are in the middle of having a heart attack and you think, I have to go to the new hospital because they have flat-screen televisions.

The fact that a hospital would even think it was necessary to have such advertisements is a clear indication of the change in our society. Who would have thought that I would choose my emergency room based on valet parking and light refreshments.

This attitude towards life is so materialistic as to be offensive. Nothing in the article says anything about the degree of care you might receive or the competency of the doctors, all that seems important to the hospital and probably to the general public, are the amenities. With all the current controversy over the rising cost of health care, maybe we need to see if emergency room patients really need flat-screen televisions.

We often look to a change in the wind as being beneficial. In this case the changes that are coming into our society are destructive and like the wind when it gets too strong, may end up destroying our society entirely.

What is the "kiss-in" protesting?

Recent local news articles in the Salt Lake City Deseret News tell about a series of protests held by pro-homosexuals at or near The Church of Jesus Christ of Latter-day Saints headquarters and Temple. The incidents have occurred, as reported, on private not public property.

These incidents could be viewed a highly local disturbance were it not for the overtones of religious persecution involved. Accounts of the incident leading up to the protests do not appear to differ much in the facts, but the characterization of the facts by the gay activists is passing into the propaganda stage.

The supposed treatment of the two gay men cited for trespassing on July 9th, is obviously not the issue. To give some perspective to the incident it is important to know that Temple Square in Salt Lake City attracts some 3 million to 5 million visitors a year, Temple Square is the most popular tourist attraction in Utah. By comparison, Utah's five National Parks —Zion, Bryce Canyon, Capitol Reef, Canyonlands, and Arches— had a combined total of 5.3 million visitors in 2005. The tourist traffic on Temple Square is also more than that of the Grand Canyon or Yellowstone National Park. Wikipedia.

With all these people every year, you can imagine that the behavior of the two men must have been out of the ordinary because over the years I have seen some pretty strange people and incidents in downtown Salt Lake City. But, having been to Temple Square many, many times, I can say that the security is almost invisible.

So why the protests? It goes without saying that if these same people were protesting almost any other establishment their actions would not be tolerated. It is only because they know that in Salt Lake and with the LDS Church, they will not be publicly excoriated that they will protest at all. It is "OK" to blatantly attack the LDS Church's sacred belief's at the center of the religion because, after all, they are just "Mormons" and it is alright to turn the arrest of two drunks into a national incident because the Mormons do not accept the Gay Rights lifestyle or agenda. At its heart, the protests are anti-religious. Their ire is directed at the Church's beliefs. What happens to freedom of religion if Gay Rights activists can attack a Church for its beliefs?

Perhaps it is a time to reflect

Think about the words to this familiar song:

Mine eyes have seen the glory of the coming of the Lord:

He is trampling out the vintage where the grapes of wrath are stored;

He hath loosed the fateful lightning of His terrible swift sword:

His truth is marching on.

(Chorus)

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Glory, glory, hallelujah!

His truth is marching on.

I have seen Him in the watch-fires of a hundred circling camps,

They have builded Him an altar in the evening dews and damps;

I can read His righteous sentence by the dim and flaring lamps:

His day is marching on.

(Chorus)

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Glory, glory, hallelujah!

His day is marching on.

I have read a fiery gospel writ in burnished rows of steel:

"As ye deal with my contemners, so with you my grace shall deal;

Let the Hero, born of woman, crush the serpent with his heel,

Since God is marching on."

(Chorus)

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Since God is marching on.

He has sounded forth the trumpet that shall never call retreat;

He is sifting out the hearts of men before His judgment-seat:

Oh, be swift, my soul, to answer Him! be jubilant, my feet!

Our God is marching on.

(Chorus)

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Our God is marching on.

In the beauty of the lilies Christ was born across the sea,

With a glory in His bosom that transfigures you and me:

As He died to make men holy, let us die to make men free,

While God is marching on.

(Chorus)

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Glory, glory, hallelujah!

While God is marching on.

He is coming like the glory of the morning on the wave,

He is Wisdom to the mighty, He is Succour to the brave,

So the world shall be His footstool, and the soul of Time His slave,

Our God is marching on.

(Chorus)

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Glory, glory, hallelujah!

Our God is marching on.

How much of what Mrs. Howe wrote would be politically acceptable today?

A Failure of Morality

In a descriptive sense, morality derives from either a written or unwritten code of conduct which is held by the society to be authoritative as to what is "right" or acceptable or "wrong" and therefore unacceptable. Descriptive morality is usually based on some ideal code of conduct, one which would be espoused in preference to alternatives by all rational people. Wikipedia.

No society can exist without morality. Because we live together and interact, we must have some predictive norm in our interactions. The Book of Mormon describes, in graphic detail, the collapse of a society that abandoned its moral structure. Quoting Third Nephi, Chapter 7:

2 And the people were divided one against another; and they did separate one from another into tribes, every man according to his family and his kindred and friends; and thus they did destroy the government of the land. 3 And every tribe did appoint a chief or a leader over them; and thus they became tribes and leaders of tribes. 4 Now behold, there was no man among them save he had much family and many kindreds and friends; therefore their tribes became exceedingly great. 5 Now all this was done, and there were no wars as yet among them; and all this iniquity had come upon the people because they did yield themselves unto the power of Satan. 6 And the regulations of the government were destroyed, because of the secret combination of the friends and kindreds of those who murdered the prophets. 7 And they did cause a great contention in the land, insomuch that the more righteous part of the people had nearly all become wicked; yea, there were but few righteous men among them.

This passage describes a society where "secret societies" that is, individuals who had combined to circumvent the laws and morals of the society, had succeeded in abrogating both the law of the land and norms by which the society was able to operate. Today, in the United States, we have the same challenge and perhaps, with the same results. We have specific organizations whose goals both publicly expressed and private or secret, are to destroy the social and moral fabric of our society. The most vocal of these organizations and individuals claim the protection of their rights as the basis for the destruction of the family, community and the government of the entire country. They would remake society in their own selfish, self absorbed goal of power over the rest of the country.

Again, to the Book of Mormon, at one point, the entire society of the people, the Nephites, was threatened by bands of robbers. It is noteworthy that the head or chief robber Giddianhi wrote a letter to the head of the established government, Lachoneus. Giddianhi first claimed that the existing government was not legitimate:

3 Nephi 3:2 Lachoneus, most noble and chief governor of the land, behold, I write this epistle unto you, and do give unto you exceedingly great praise because of your firmness, and also the firmness of your people, in maintaining that which ye suppose to be your right and liberty; yea, ye do stand well, as if ye were supported by the hand of a god, in the defence of your liberty, and your property, and your country, or that which ye do call so.

Noteworthy is how Giddianhi ended his claim to take over the government

3 Nephi 3:10 And I write this epistle unto you, Lachoneus, and I hope that ye will deliver up your lands and your possessions, without the shedding of blood, that this my people may recover their rights and government, who have dissented away from you because of your wickedness in retaining from them their rights of government, and except ye do this, I will avenge their wrongs. I am Giddianhi.

There is a striking parallel between the attitude of these robbers and those who would challenge our own government today. The key claim was for "rights" and the accusation against the established government was that in denying the robbers their "rights" the established government, not the robbers themselves, was "wicked." Presently there are those who would claim that personal rights as determined by the individual are superior to any other consideration. In taking this position they would ignore the very foundation of our nation, our liberty and ultimately our freedom. As it says in the Constitution of the United States of America:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Our founding fathers did not forge a nation of individuals asserting their individual rights above the common good, but they established a Union in order to establish justice and insure domestic tranquility. Let us remember that we are one nation, under God, indivisible, with liberty and justice for all and that justice mandates that we serve the common good, not to be replaced with the selfish desires of individuals who would destroy the common good for their own selfish and self serving ends.