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OPINION

About GOP’s ‘due process’ arguments …

By RANDALL D. ELIASON | Special to The Washington Post | Published: October 25, 2019

As mounting evidence demonstrates that President Donald Trump’s withholding of aid to Ukraine did in fact involve an improper quid pro quo, Trump and his Republican allies have pivoted to step up their attacks on the impeachment inquiry itself. On Wednesday morning, more than two dozen Republican House members, reportedly with Trump’s approval, stormed a secure House hearing room to disrupt the testimony and protest what they claim is an unfair, secret investigation. Sen. Lindsey Graham, R-S.C., has attacked the non-public impeachment inquiry as a sham and a violation of due process. But these objections are baseless: At this stage, there are sound reasons for the House to proceed behind closed doors.

Impeachment is a two-step process. The House investigates and votes on articles of impeachment. If those articles are passed, the Senate holds a trial. In this context, the House is analogous to a criminal grand jury, the body that investigates and returns charges in the form of an indictment. The Senate proceeding is analogous to the public criminal trial that results from an indictment.

In the federal criminal system, grand jury proceedings are secret, closed not only to the public but also to those under investigation. Prosecutors question witnesses before the grand jury but defense counsel are not allowed to be in the room, much less to participate and cross-examine witnesses. With Republican committee members present and able to ask questions at the closed House hearings, the president already has far more representation at the investigative stage than a target of a grand jury investigation.

Many of the reasons for grand jury secrecy apply equally to the impeachment inquiry. One is to protect the integrity of the investigation. Secrecy prevents witnesses from reviewing the testimony of others and tailoring their own testimony to be consistent or “get their stories straight.” It also prevents targets of the investigation from engaging in obstructive acts in response to the testimony, such as witness intimidation or destruction of evidence. Volume Two of the report by special counsel Robert Mueller provides ample reason for Congress to be concerned about this president’s potential willingness to attempt to obstruct an ongoing investigation.

Grand jury secrecy also can provide some comfort to reluctant witnesses who may fear retaliation by powerful people against whom they testify. Secrecy assures them that the targets of the investigation will not know exactly what they said. In the context of the impeachment inquiry, witnesses reasonably may fear becoming the subject of a Twitter tirade by the president or vitriolic attacks by his most devoted followers. Taking depositions behind closed doors may allow witnesses to feel more comfortable and be more forthcoming.

In a congressional investigation, secrecy serves another important function. Open congressional hearings are a notoriously ineffective method of investigation. They frequently degenerate into squabbles involving members of Congress primarily concerned with scoring political points and generating cable TV sound bites. The typical five-minute rounds of questioning do not allow even a skilled examiner to make much headway with a witness. Closed-door hearings, with questioning by trained staff attorneys and no television cameras, provide a much better opportunity to discover the truth.

Republican protests about the process seem to suggest that the president might be removed from office entirely through a secret proceeding — albeit one in which Republican committee members are participating. But there will be public presentations in due course. Before a final vote on any articles of impeachment, the House committees will need to present publicly the evidence that supports those articles. And at any trial in the Senate, the president will have the full array of rights to be represented by counsel and to confront the witnesses and the evidence against him.

Claims about a lack of due process are frivolous. It’s understandable that Republicans would rather manufacture procedural objections than confront the reality of the president’s misconduct. But the president already has far more representation and ability to monitor and participate in the investigation than any criminal defendant would enjoy. And in the end, this is a political proceeding, not a criminal one. It’s not about whether Trump should go to prison — it’s about whether he is fulfilling his constitutional obligations and should remain in his job. Whatever process is “due” in such a proceeding, there’s no doubt the president is receiving and will continue to receive it.

Randall D. Eliason teaches white-collar criminal law at George Washington University Law School.

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