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With the House impeachment hearings in full swing, my colleague Dean Erwin Chemerinsky of U.C. Berkeley law school has noted several myths circulating about impeachment I think are worth sharing.

The Constitution does not require the president to have committed a crime to be impeached. Impeachment is authorized when the president has committed “treason, bribery or other high crimes and misdemeanors.” According to Alexander Hamilton, this means misconduct of a public official abusing or violating the public trust.

No “quid pro quo” needs to be found for the president to have committed a serious abuse of power. However you interpret the president’s phone call with the Ukrainian president, the question is whether the president using the powers of his office for political gain amounts to a serious abuse of that official power.

The president has no right to confront the whistleblower. The confrontation clause of the Sixth Amendment applies only in criminal proceedings. The Constitution makes clear impeachment is different from a criminal proceeding. Moreover, the federal whistleblower law would be rendered meaningless if the identity of any whistleblower were revealed. The purpose of the law is to encourage federal employees to report potential misconduct without fear of retaliation. The whistleblower merely alerted the Congress and others that a possible abuse of power had occurred.

The president has no “due process” rights in the impeachment inquiry. The due-process clause of the Fourteenth Amendment applies if a person is threatened with deprivation of “life, liberty, or property.” The House impeachment process does none of these things. Rather, the House acts like a grand jury considering a criminal indictment – is there probable cause to believe constitutional grounds to remove the president exist? Articles of impeachment are accusations. Before the president is removed, any such accusations have to be established to the satisfaction of two-thirds of the Senate in a trial presided over by the chief justice. Whether that can be done turns on the proof presented in the Senate, not on what the House might consider first.

A lot of confusing and misleading information about impeachment in general and about the current proceedings exists. But the procedures to be followed are not spelled out in the Constitution. The procedures are left to the House and the Senate. Dean Chemerinsky is a renown constitutional scholar and authority on the Supreme Court. His observations, with which I agree, should be kept in mind when considering what others may say the Constitution requires in these proceedings.

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Chuck Dell’Ario is a Napa lawyer specializing in appellate practice. He was foreperson of the 2017-2018 Napa County Grand Jury.

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