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Constitution Is Clear In Impeachment Process, Brettschneider Says


What does the law say about who holds the power? Corey Brettschneider is our next guest. He's a Brown University professor and author of the book "The Oath And The Office: A Guide To The Constitution For Future Presidents."

Welcome to the program, sir.

COREY BRETTSCHNEIDER: Thanks, pleasure to be here.

INSKEEP: Is there any doubt that the House gets to decide when and where and how to impeach?

BRETTSCHNEIDER: No, the Constitution is clear. And that's the source here, is the constitutional text gives the power to decide an impeachment to the House, a majority, and the trial is held in the Senate, two-thirds. And I'm - when I look at the letter, I'm not sure what their constitutional source is. The one that says that the House is going to determine this is the Constitution itself. And the courts have repeated this as well. We have a case where the courts made very clear that they're not going to get involved in the process of impeachment and that they'll defer to the Congress in that matter, so I'm not sure where it's coming from.

INSKEEP: That case - is that from Watergate times, that case you're referring to?

BRETTSCHNEIDER: There's actually an even more recent case involving a judge. It's also a Nixon case, but it's Nixon versus the U.S. And the court, Rehnquist in particular, had a very interesting point. He said, look, when the Constitution uses the word try to talk about the Senate trial, it's clearly deferring to another branch. We're not going to intervene and set the rules here.

INSKEEP: This is all an argument about the rules, and I guess we should note, we're not at the Senate trial now. This is a House investigation, a kind of House oversight before the committees that normally perform oversight.

The president's lawyer - the White House lawyer, I should be clear - has made the argument this is unfair because there's no cross-examination. The president doesn't get to call his witnesses. Is it normal that in a House of Representatives hearing the president of the United States gets to decide who the witnesses are?

BRETTSCHNEIDER: No, the House sets its own rules and its own proceedings, and it's bizarre to suggest that somehow the president is going to have a say in setting this up. The way that the process works is this isn't a trial. It's not a criminal justice process, for instance. The standard of high crimes and misdemeanors leaves it up to the House first to decide. Has the president degraded the office? It's not a question of reasonable doubt or even whether a crime has been committed but rather about a kind of abuse of power. And the way of determining that is also left to the House and to the speaker. And there doesn't need to be a formal vote either. That's a made-up idea that somehow there's some strict rule that the House has to follow. We're clearly in an impeachment inquiry now.

INSKEEP: We've been encouraged to think of the House process as kind of like an investigation, a grand jury investigation and an indictment. This is the part where maybe the defendant doesn't really have a lot of say over things. Is that a fair analogy of where we're at?

BRETTSCHNEIDER: I think it's a loose analogy, but it's misleading in the sense that there certainly are due process rights in a criminal trial from the beginning to the end. And here, there really aren't. It's a different kind of inquiry. We're asking, did the president abuse power? Did he abuse the office? And there is no criminal law of high crimes and misdemeanors. If you look in a 1L casebook in criminal law, you won't find one. And it's because it's about a different kind of inquiry. Has the office been degraded or not, and has the president taken the oath seriously, or really done things that are at odds with it?

INSKEEP: The White House has said the inquiry violates every past precedent. Now, you've already named precedents that it doesn't violate. But as you look at the law, is there some precedent somewhere for the president to have some leverage to shape this kind of inquiry?

BRETTSCHNEIDER: There really isn't. I mean, if you look back at impeachments, of course, presidents aren't happy about it. In the 19th century, Andrew Johnson was appalled that he was facing impeachment for firing his secretary of war and also for his failure to enforce the 14th Amendment - sorry - the 13th Amendment. But the fact is, the House is going to determine this matter and so is the Senate, and the president won't have any say.

INSKEEP: Mr. Brettschneider, thank you very much.


INSKEEP: Corey Brettschneider is a constitutional scholar and political science professor at Brown University, also the author of the book "The Oath And The Office." Transcript provided by NPR, Copyright NPR.