Paul Savoy: An impeachment trial without witnesses would be unconstitutional

For this reason, impeachment explicitly involves fewer rights than a criminal trial does. Blackstone notes, for example, that impeachments, unlike criminal convictions, cannot be undone by pardons. The Constitution similarly says an official can be both impeached and criminally prosecuted for the same act—indicating that impeachment is no substitute for a criminal trial.

A federal court did once hold, as the lawyers’ response notes, that due process applied to an impeachment.* But the only process at stake in that case—concerning the impeachment of former federal Judge Alcee Hastings, now a representative of Florida—was his entitlement to a trial by the full Senate rather than a committee of it. The asserted violation in the Hastings case was of an explicit constitutional requirement that the full Senate try impeachments—which it is quite clearly doing in Trump’s trial.

Trump’s lawyers’ filing goes on to say that the Framers “surely” did not mean to divorce impeachment from rights like due process. But “Federalist No. 65,” arguing for the Senate rather than the judiciary to try impeachments, observes that impeached officials do not enjoy the same rights as private citizens on trial before the courts.

A Senate trial “can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.” Impeached officials do not hazard their personal security. All they risk is their power—a temporary and public trust allocated by the citizenry.

Mario Loyola: Abuse of power is a dangerous standard for Democrats to play with

As the president and his lawyers often argue, the public did allocate that trust in the 2016 election, which Trump won according to constitutional rules. But the people register their wills in multiple ways. Trump’s 2016 Electoral College majority was one way. But Democrats have also won major victories since then, and “Federalist No. 65” says House members act as “the representatives of the people” in impeachments.

Trump’s insistence on using the language of criminal defense also undermines his own case. His attorneys protest, for example, that they were not allowed to cross-examine witnesses in the House investigation. But if impeachment is a judicial instrument, the House’s authority is comparable to indictment, a process in which the rights of the accused are notoriously meager. Will the Trump Justice Department now allow attorneys for those accused of federal offenses to cross-examine grand-jury witnesses?

The more dangerous flaw in this thinking is the implicit assumption that the presidential office is the personal property of its occupant. When Trump declared last July, “I have an Article II, where I have the right to do whatever I want as president,” the most disconcerting locution was not his claim of limitless authority but rather the implication that he personally possessed it. Certain authorities accrue to the office; they are not the private rights of the person who occupies it.