While President Donald Trump and Republicans increasingly advance the argument that the House’s hesitancy in sending the articles of impeachment to the Senate is a tacit admission that there is no case, Speaker of the House Nancy Pelosi (D-Calif.) has made clear that she wants assurances a trial in the Senate will be a fair one. According to one cable news legal analyst, the longer this holding pattern continues the more obvious it becomes that the president’s next defense will be that he’s been denied his constitutional right to a speedy trial.
CNN legal analyst and former New York City prosecutor Paul Callan predicted that the president, who has repeatedly claimed he’s been denied his Fifth Amendment right to due process, will argue his Sixth Amendment rights have been violated if Pelosi stays the current course much longer.
“The one thing we haven’t heard yet is about the concept of a speedy trial. And I’m betting that if Nancy Pelosi doesn’t get those articles of impeachment over to the Senate chamber very, very soon the president is going to be saying that he’s been denied a speedy trial, that you’re entitled to under the U.S. Constitution, and that a motion to dismiss the impeachment lies now,” Callan said. “This has never happened before in American history, but I’m betting you’re going to hear those words spoken if those articles aren’t delivered very soon.”
It’s not far-fetched that President Trump or his allies would make this argument (some have), and they’ve already made a Sixth Amendment-related argument while calling for the identification of the Ukraine whistleblower.
The Sixth Amendment [ensuing emphases ours] says that “In all criminal prosecutions“–impeachment isn’t a criminal prosecution–“the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
The House of Representatives passed articles of impeachment against the president alleging abuse of power and obstruction of Congress.
Callan’s CNN legal analyst colleague, attorney and impeachment expert Ross Garber, told Law&Crime that Congress is in recess and that there “hasn’t really been a substantial delay. At least not yet.” He also noted that this isn’t the first impeachment to have a delay between a successful vote on articles of impeachment and the ensuing trial.
“In the past there have been significant gaps in time between the passage of articles of impeachment and the beginning of a Senate trial,” the Real Impeachment podcast host said. “This is all theater at this point. And I think it will continue to be theater. I expect the Speaker will transmit the articles shortly after Congress returns in early January.”
“By not immediately transmitting the articles, the Speaker has left herself vulnerable to a PR campaign by the President.
But it would be a mistake to take this political show at face value,” Garber continued. “Delaying delivery of the articles much past early January would hurt the Democrats, who will want to be talking about bread-and-butter election issues — not impeachment — as their primaries and caucuses begin in February. Sen. McConnell no doubt recognizes this, and has said he doesn’t particularly care when the House transmits the articles.”
[Image via J. Scott Applewhite – Pool/Getty Images]
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