Process questions (and fake "process questions") around impeachment

We're hearing a lot from the Republicans about how unfair they think the impeachment process is to poor Donald Trump, the more highbrow versions invoking the Sixth Amendment requires for fair criminal trials.

Steven Lubet provides a legal reality-check on those claims in The Conservative Legal Community Is Grasping at Straws to Defend Donald Trump The American Prospect 11/11/2019, in which he replies to claims by Steven Calabresi of the Federalist Society. Lubet writes:

The opening words of the Sixth Amendment—“In all criminal prosecutions”—make it unmistakable that its provisions do not apply to impeachments, which are clearly noncriminal in nature. Impeachment by the House and conviction by the Senate cannot result in imprisonment, fine, or any other criminal penalty. Rather, the only allowable consequences are removal from office and disqualification from future office-holding.

The arguments we hear treating Senators as jurors in impeachment trials are also misleading: "Impeachments, of course, are tried by the Senate, per Article I, Section 3, with no requirement of impartiality. There is nothing to keep senators from expressing their opinions in advance of the trial, as Lindsey Graham has done by branding the house investigation B.S."Joan Biskupic, This point of Lubet's is also relevant to the current Republican polemics:

Impeachment is only a charge of misconduct, the equivalent to a grand jury indictment. There is no Sixth Amendment right either to witness confrontation or a public hearing at the grand jury stage, where the proceedings are secret according to statute. In fact, Trump’s Department of Justice has argued that the records of Special Counsel Robert Mueller’s grand jury proceedings must remain sealed and non-public, even though they have been subpoenaed by the House Judiciary Committee.

One ruling that Chief Justice William Rehnquist made during the Clinton impeachment trial I've always found interesting is this one: "Rehnquist upheld an objection of Democratic Iowa Sen. Tom Harkin to the House managers' referring to senators as 'jurors.' Declared Rehnquist, 'The Senate is not simply a jury. It is a court in this case'." (Joan Biskupic, The Rehnquist files: How the last chief justice handled an impeachment trial CNN 09/29/2019)

Lizette Alvarez reported on that ruling, which has wide implications for how the Senate approaches the decision-making process (Harkin Wins Endorsement of Wider Role Than Jury New York Times 01/16/1999):

In a calculated fashion, Senator Harkin was underscoring a fundamental Democratic argument: Senators are not there simply to digest the facts of the impeachment case, but also to consider the national interest. The more appropriate word to describe the 100 Senators is "judges," Mr. Harkin said. And judges make all sorts of decisions, some of them touching on witnesses, for example, or on the public good.

"Regular jurors are not supposed to know each other," Mr. Harkin said on the floor. "Not so here. Regular jurors do not decide what evidence should be heard or the standards of evidence, nor do they decide on witnesses or what witnesses shall be called. Not so here. Regular jurors do not decide when a trial is to be ended. Not so here."

Chief Justice William H. Rehnquist, ruling on first objection in the trial of President Clinton, sustained the point, saying: "The chair is of the view that the Senator from Iowa's objection is well taken, that the Senate is not simply a jury. It is a court in this case. And therefore counsel should refrain from referring to senators as jurors." [my emphasis]

William Saletan, to whom left-leaning bloggers refer sarcastically as Lord Saletan, disputed that Rehnquist had meant what seemed to be the plain meaning of accepting Harkin's objection (Harkin’s Objection Slate 01/20/1999):

Harkin proudly explained [on ABC's This Week program] that he wasn’t surprised when Rehnquist ruled in his favor, because he had read Rehnquist’s book on impeachment and knew that Rehnquist believed senators in an impeachment trial were “more than just jurors.” He asserted that Rehnquist’s ruling “undermines their case for bringing any witnesses, because obviously we are not jurors.” Above all, said Harkin, Rehnquist was affirming that the Senate “can take into account not just the facts and the law, but the public good … [T]he chief justice really means that we can be expansive, that we can decide on a much broader set of findings than just the findings of fact or law.”

What Rehnquist actually said, however, was narrower. “The Senate is not simply a jury. It is a court in this case,” he ruled. The word “court,” consisting of judges and jurors, is crucial. Rehnquist was agreeing that senators could decide questions such as “what evidence should be heard” and “when a trial is to be ended,” which are the province of judges, not jurors. But judges, like jurors, are bound by facts and law. Harkin was distorting Rehnquist’s ruling into an affirmation that senators could reach beyond the facts and the law to consider “the public good.”

Interestingly, Joshua Zeitz seems to have missed that ruling altogether when he writes (Looking Back on the Clinton Impeachment American Heritage 64:1, Winter 2019), "Rehnquist became only the second chief justice in American history to impanel the Senate as a jury in a presidential impeachment trial." (my emphasis)

Steven Lubet also cites the Supreme Court decision in Walter L. Nixon v. United States (1993) which rejected the claim that Senate impeachments are subject to judicial review as well as the notion that impeachments are judicial proceedings. Trump has expressed the view that impeachment of him is unconstitutional, although it's a safe bet that he has no idea what the Nixon v. US decision was. Rehnquist delivered the Court's decision, which included the following:

We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps years, of chaos." ... This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated. Equally uncertain is the question of what relief a court may give other than simply setting aside the judgment of conviction. Could it order the reinstatement of a convicted federal judge, or order Congress to create an additional judgeship if the seat had been filled in the interim? [my emphasis]

This is also an important part:

There are two additional reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments. First, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses - the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. See Art. I, § 3, cl. 7. The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments ...

Second, judicial review would be inconsistent with the Framers' insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature.[my emphasis in bold]