By Daniel Strellman*
On October 8, 2019, White House Counsel Pat Cipollone, on behalf of President Trump, sent a letter to top Democratic Leaders within the U.S. House of Representatives: Nancy Pelosi, Speaker of the House; Adam Schiff, Chairman of the House Permanent Select Committee on Intelligence; Eliot Engel, Chairman of the House Foreign Affairs Committee; and the late Elijah Cummings, Chairman of the House Committee on Oversight and Reform.[i] In his letter, Cipollone built a case that ultimately rests on two seminal cases in administrative law: Goldberg v. Kelly[ii] and Mathews v. Eldridge.[iii] These cases discuss what procedural due process is required in proceedings like administrative adjudications, and Cipollone argued, essentially, that Trump deserves procedural due process akin to a party in an administrative adjudication.[iv] This article seeks to assess what due process a President would be due should the analogy hold that impeachment inquires require due process akin to administrative adjudications. Unfortunately for the President, a potential impeachment does not implicate a due process right, and even if it did, it is unlikely that the balance would weigh in favor of additional procedure.
Impeachment itself is a little defined process. The Constitution grants the power of impeachment to the House of Representatives.[v] However, it does not outline any particular procedures regarding the process by which the House must impeach.[vi] Although it is not specified in the Constitution, only a simple majority vote has been required for the House to impeach,[vii] because a simple majority vote is presumed to be the constitutional default unless otherwise specified.[viii] The only other procedural requirements for impeachment come from the House’s rules, which it promulgates for itself, akin to an agency’s internal procedural rules.[ix]
Informal adjudications, on the other hand, have a few mandatory procedures detailed in Section 555 of the Administrative Procedure Act; they may have further procedures as specified in substantive statutes that apply to a given agency, such as the Clean Air Act.[x] However, the Due Process Clause imposes what are, perhaps, the most important requirements on informal adjudication.[xi] While the Due Process Clause applies regardless of whether an adjudication is formal or informal, the procedural requirements set out by the APA for formal adjudications fully satisfy the demands of procedural due process.[xii] Thus, the Due Process Clause is responsible for providing the essential backbone of procedure in informal adjudication.
In this October 8 letter, Cipollone essentially argued that the Due Process Clause provides the procedural backbone for the process of impeachment itself, not just the Senate trial that follows impeachment. Let’s indulge in Cippolone’s assumption: What due process would be warranted if we imagine that an impeached party were a party in an administrative adjudication?
The text of the Due Process Clause, as provided in the Fifth Amendment, is the following: “No person shall be … deprived of life, liberty, or property, without due process of law[.]”[xiii] The Due Process Clause is short and relatively straightforward—at least with regard to procedural due process. Essentially, due process of law is required before anyone can be deprived of three essential things. So, we need to know what “due process of law” entails and what exactly falls into each of the three categories of relevant depravations. Furthermore, we are left with the question: Are there any exceptions to due process, or is it required if the government deprives someone of life, liberty, or property by any means?
The answer is that Due Process Clause does not protect anyone from being deprived from life, liberty, or property if that depravation comes from general lawmaking.[xiv] This is because the procedural safeguard for general lawmaking is the political process: citizens using voting for policies or representatives to defend their liberty or property interests that may be at stake. One can distinguish general lawmaking from its antithesis, adjudication, by considering two factors: (i) whether a ruling is prospective vs retroactive in nature, and (ii) whether that ruling is generally applicable to a large class of people or only applies to particular individuals.[xv] General laws will be prospective, that is, only apply in the future and not apply to past actions. Conversely, adjudications retroactively judge past action. Thus, when the government is not making a generally applicable, prospective legislation, then the Due Process Clause applies.[xvi]
Once we are certain that the challenged government depravation is in the form of an adjudication rather than legislation, we know due process may be required.[xvii] Then, as the Supreme Court held in Goldberg, a claim of insufficient procedural due process must be judged by a two-part test.[xviii] Step one asks whether there is a depravation of a life, liberty, or property interest such that due process is implicated.[xix] If there is a depravation of a life, liberty, or property interest, then the analysis proceeds to step two.[xx] Step two then inquires as to what procedure is necessary to ensure due process of law, considering the interest being deprived.[xxi]
In order to conduct step one’s analysis, we must define the three depravations. First, a depravation of life is only at stake in criminal cases of capital punishment, where conviction will mean death. Of course, life is never at stake in an administrative adjudication, and so will have no bearing on this discussion. Second, liberty has a broad meaning: freedom to contract; engage in common occupations of life; acquire useful knowledge; marry, establish a home, and raise kids; etc.[xxii] Third, a property interest is involved when a person has a legitimate claim of entitlement to an item of value.[xxiii]
Provided a life, liberty, or property interest is at stake, we must assess what procedures are necessary to ensure due process of law. The Supreme Court determined in Mathews v. Eldridge that a three-factor balancing test was appropriate for this endeavor. A court must balance (1) the private interest of the party being affected, along with (2) the risk of an erroneous depravation and the probable value of additional process, versus (3) the government’s interest in avoiding additional procedural burdens and their requisite costs.[xxiv]
In the case of the current impeachment inquiry, does Trump have a life, liberty, or property interest is at stake? Trump’s life is not at stake. Though valuable in some sense, the presidency is not a material item of value (i.e., a property interest). And although Justice Marshall penned a dissent advocating for government jobs to be considered both a property and a liberty interest, the opinion did not become a part of our common law.[xxv] So, Trump has no liberty nor property interest at stake. Thus, the inquiry should end here.
Were the inquiry to continue to step two, Trump might be able to make a better case for additional procedures. Though as we apply the Mathews balancing test, it is important to remember that the interest at stake here is merely impeachment, not removal from office. Despite the grand nature of Pat Cipollone’s protestations, he is demanding additional procedures during the impeachment phase, not the trial phase where Trump could actually be removed from office. Thus, Trump’s private interest in avoiding the stain of impeachment may or may not be significant; the presidency is invaluable, but such reputational damage can be hard to quantify. There is some heightened risk of erroneous impeachment in the absence of Trump cross-examining witnesses or viewing the evidence against him. However, additional procedure is unlikely to help, considering the full trial that awaits in the Senate before Trump could be removed from office. Lastly, given the costly nature of Congressional proceedings (e.g., distraction of legislators from legislating) and the duplicative nature of additional due process during the impeachment phase, there is some weight behind the government interest in withholding additional procedural protections from the President. This is a closer call, but one can hardly imagine a Congress requiring that every office holder considered for impeachment and removal be allowed to mount a defense before they are even accused of doing anything wrong—especially considering the procedure-heavy trial required before conviction and removal from office.
In conclusion, impeachment alone does not merit additional procedural protections. Trump lacks a life, liberty, or property interest, and the balances might weigh against additional procedural protections even if he did have such an interest. Furthermore, the above tests feel inapposite given the battery of procedural protections in the Senate trial before a sitting president can be removed. After walking through the gauntlet of administrative case law, it is clear that Pat Cipollone’s analogy comparing an impeachment inquiry to an administrative adjudication is misplaced. It is no wonder his analogy finds little purchase in law beyond a single district court opinion.[xxvi]
*Daniel Strellman is an Associate Editor on MJEAL. They can be reached via email at email@example.com.
[i] Letter from Pat A. Cipollone, Counsel to the President, to Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019), https://assets.documentcloud.org/documents/6459967/PAC-Letter-10-08-2019.pdf.
[ii] Goldberg v. Kelly, 397 U.S. 254 (1970).
[iii] Mathews v. Eldridge, 424 U.S. 319 (1976).
[iv] Cipollone, supra note 1.
[v] U.S. Const. art. I, § 2, cl. 5 (“The House of Representatives … shall have the sole Power of Impeachment.”).
[vi] Id. The Constitution does outline further procedures subsequent to impeachment, namely a trial in the Senate. U.S. Const. art. I, § 3. However, here we are interested in the process of impeachment itself.
[vii] Impeachment, U.S. Senate, https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (last visited Nov. 10, 2019) (“In impeachment proceedings, the House of Representatives charges an official of the federal government by approving, by majority vote, articles of impeachment.”).
[viii] See generally U.S. Const.
[x] Administrative Procedure Act, 5 U.S.C. § 555 (2018).
[xi] See generally U.S. Const. amends. V, XIV.
[xii] See Craig A. Rolfe, The Requirement of Formal Adjudication under the Administrative Procedure Act: When Is Section 554(a) Triggered So as to Require Application of Section 554, 556, and 557, 11 Envtl. L. 97, 117 (1980).
[xiii] U.S. Const. amend. V.
[xiv] Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915).
[xviii] Goldberg v. Kelly, 397 U.S. 254 (1970).
[xxii] Bd. of Regents v. Roth, 408 U.S. 564 (1972).
[xxiv] Mathews v. Eldridge, 424 U.S. 319 (1976).
[xxv] Bd. of Regents v. Roth, 408 U.S. 564, 588–89 (1972) (Marshall, J., dissenting).
[xxvi] Hastings v. United States, 802 F. Supp. 490, 504 (D.D.C. 1992), vacated on other grounds by Hastings v.United States, 988 F.2d 1280 (D.C. Cir. 1993).