clock menu more-arrow no yes mobile

Filed under:

The Fraternal Order of Police’s attack on impeachment reads like it was written by Sean Hannity

America’s largest police union doesn’t seem to understand what “due process” is.

Outrage In Missouri Town After Police Shooting Of 18-Yr-Old Man
Police advance through a cloud of tear gas toward demonstrators protesting the killing of teenager Michael Brown on August 17, 2014, in Ferguson, Missouri.
Photo by Scott Olson/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

The Fraternal Order of Police (FOP), a massive police union that claims over 330,000 members, released a letter earlier this week opposing the impeachment of President Donald Trump. The letter, which denounced vague and unspecified “due process” violations against Trump, reads more like something someone would hear during a prime time Fox News show than the work of an organization that is intimately familiar with law enforcement.

“One of the most basic rights afforded to American citizens is the right to due process,” the letter begins. It then accuses “many Members of Congress” of “undermining that trust in due process by ignoring its fair and universal application.”

“Just as local law enforcement officers are often convicted in the media,” it claims, members of Congress are also “violating due process to score political points.” Though the letter doesn’t actually go into very much detail about how lawmakers are supposedly violating due process, the last line of the letter makes clear who the FOP hopes to protect.

The FOP, the letter concludes, exists to protect due process rights “for all citizens at every level, from the indigent living on the street to the President living in the White House.”

The FOP does indeed have a history of demanding strong due process rights — for cops. Often, it does so at the expense of individuals who are not entrusted with the awesome power to carry a badge and a gun.

The FOP, for example, has tried to punish lawyers who argue in favor of the constitutional rights of the condemned. It successfully lobbied senators to block President Barack Obama’s nomination of Debo Adegbile to lead the Justice Department’s Civil Rights Division, because Adegbile signed a brief arguing that a man convicted of killing a police officer was unconstitutionally sentenced to die.

In 2008, a panel of federal judges that included two Reagan appointees unanimously held that the death sentence was invalid. The penalty was reduced to life in prison.

The FOP sued Philadelphia District Attorney Larry Krasner after Krasner’s office created a list of officers with a history of offenses, such as lying on duty or racial profiling, and discouraged prosecutors from calling these potentially unreliable officers to testify in court. The FOP claimed that this effort to keep dishonest officers off the stand violated the due process rights of those officers. A judge rejected this lawsuit in August.

After Chicago police officer Jason Van Dyke was charged with murder for the shooting death of 17-year-old Laquan McDonald, the local chapter of the FOP gave him a job to “assist the Van Dyke family.” When a jury convicted Van Dyke of second-degree murder for killing McDonald, the Illinois FOP called it a “sham trial and shameful verdict.”

When a Cleveland police officer shot and killed 12-year-old Tamir Rice while Rice was playing with a toy gun, the president of the Miami FOP tweeted that if you “act like a thug, you’ll be treated like a thug.”

Donald Trump is not being denied “due process” rights

In any event, the FOP’s claim that Trump is somehow being denied due process by the House of Representatives is unfounded.

Though the FOP’s letter supporting Trump does not itemize how Trump’s “due process” rights are allegedly being violated, White House counsel Pat Cipollone signed a letter to congressional leaders in October, claiming that Trump is entitled to “cross-examine witnesses” during the House’s impeachment inquiry. That it may “call witnesses,” “receive “transcripts of testimony,” “have access to evidence,” “have counsel present,” and that the House should not conduct “proceedings in secret.”

This complaint fundamentally misunderstands the nature of an impeachment inquiry. The Constitution gives the House of Representatives the “sole power of impeachment” and the Senate the “sole power to try all impeachments.” Most of the rights Trump seeks are rights typically associated with criminal trials. But the trial is what will take place in the Senate if the House votes to impeach Trump.

In the impeachment process, the House’s role is more akin to that of police investigators, that of prosecutors, and that of a grand jury. The House’s job is to gather evidence, to build a case against the president, and then to formally accuse the president of committing an impeachable offense if a majority of the House agrees that such charges are warranted.

For this reason, it is normal for an impeachment inquiry to begin with closed-door proceedings for the same reason that it is normal for police to interview witnesses in private when they are investigating a crime. Among other things, if this phase of the inquiry were conducted openly, witnesses could see each other’s testimony and could align their stories in order to frustrate the inquiry.

The Clinton and Nixon impeachment processes both began with a private investigation. So did the Republican-led investigation by the House Select Committee on Benghazi.

Trump, moreover, effectively has a representative in the room for the closed-door phase of the investigation — indeed, he has 48 representatives in the room. All members of the House committees on Intelligence, Oversight, and Foreign Affairs are allowed to participate in the impeachment inquiry. That includes 48 Republican members of Congress.

Finally, as a constitutional matter, the House is allowed to shape the impeachment inquiry however it chooses. A very similar issue arose in the Supreme Court’s decision in Nixon v. United States (1992), after disgraced federal Judge Walter Nixon claimed that his impeachment trial did not afford him due process because parts of the trial were conducted by a committee consisting of only a subset of the Senate.

The Supreme Court explained that the Constitution gives the House “sole” power to impeach and the Senate “sole” power to try impeachments. Thus, courts have virtually no authority at all to second-guess the process Congress uses during an impeachment.

All of which is a long way of saying that the FOP’s defense of Trump is misguided. One would think that a union representing hundreds of thousands of cops would already know that investigations into potential wrongdoing are often conducted behind closed doors. But the FOP does have a history of reading the term “due process” in an idiosyncratic way.

Read the full letter below.

Sign up for the newsletter Today, Explained

Understand the world with a daily explainer plus the most compelling stories of the day.