Trump must sue the Democrats to enforce his Brady rights

Why must President Trump file a lawsuit to extricate all the possible exculpatory documents immediately, including emails and texts?

Mark Langfan, | updated: 09:55

OpEds Mark Langfan
Mark Langfan
Mark Langfan
On June 14, 1946, Donald J. Trump was born and on that date, Donald J. Trump was irrevocably endowed with the most precious personal right in the history of the world: The inalienable panoply of Federal Due Process Rights under the United States Constitution, especially the due process rights under the 5th Amendment. 

The 5th Amendment states in its pertinent part:  “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Donald Trump has always possessed and continues to possess every protection of the 5th Amendment and all the derivative rights as expounded and decided by the Supreme Court of the United States.  President Trump possessed these rights before he ran for President, during his run for President, and now as President of the United States.  As I described in my earlier October 7, 2019 opinion piece, the Brady Rule can force the House to disgorge impeachment documents,

President Trump is endowed with Brady rights which require the government to disgorge any exculpatory evidence favorable to the President which would tend to show he is innocent or could relate to the credibility of any witnesses. President Trump’s Brady rights against the Democrats are independent of any actual Impeachment vote.  Hence, President Trump must immediately file a proactive lawsuit against the Democrat House and Senate individual members and committees to disgorge all evidence and documents (texts and emails) relating to any and all claims against him.
Why must President Trump file a lawsuit to extricate all the possible exculpatory documents immediately, including emails and texts?  It has been reported that House Speaker Nancy Pelosi is not going to go to court to enforce the House Democrats subpoenas. This means that the House Democrats are going to bypass any Impeachment “Inquiry” and rocket straight to authorizing articles of Impeachment before passing the issue over to the Senate for an impeachment trial. 

If the President does not file a lawsuit now, the Democrats' Impeachment train could leave the station without the President having secured any exculpatory evidence or any evidence at all.  Filing a Brady lawsuit after a House impeachment vote may be too late.  Filing a Brady lawsuit now before the House gets much further towards an actual articles of impeachment vote could very well freeze any House Impeachment vote.  Also, by the time the case filters through the system, a positive result could derail the entire Impeachment train.  Such a legal result would expose all of the Democrats' emails and texts that might show the American public that the Democrats are engaging in an attempted coup, and not a valid Impeachment.

As I wrote in my October 7th Brady article, the White House Counsel explicitly claimed the President is entitled to full 5th Amendment due process rights including “favorable/witness credibility” evidence Brady rights.  The White House Counsel letter dated October 8, 2019 stated:

“To comply with the Constitution's demands, appropriate procedures would include-at a minimum-the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry. The Committees' current procedures provide none of these basic constitutional rights.”

The President’s constitutional right to access to the “favorable/witness credibility” Brady evidence is explicitly referenced above where the White House Counsel stated: “Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry.”

Critically, earlier in the letter, the White House Counsel stated that: “These due process rights are not a matter of discretion for the Committees to dispense with at will. To the contrary, they are constitutional requirements. The Supreme Court has recognized that due process protections apply to all congressional investigations. 8 [Watkins v. United States, 354m U.S. 178, 188(1957);Quinn v. United States, 349 U.S. 155, 161 (1955) Indeed, it has been recognized that the Due Process Clause applies to impeachment proceedings. (footnote omitted)”

These two legal propositions, namely that

1. Pres. Trump has Brady rights, and

2.  That those Brady rights attach in any Congressional investigation,

mean President Trump is entitled to all “favorable/witness credibility” Brady evidence that exists from any of the previous House and Senate Congressional investigations including all the possible exculpatory Brady evidence from the Russian collusion hoax.  Exculpatory evidence includes evidence that the House and Senate Democrats were trying to frame President Trump on the Russia collusion hoax.  This Democrat member evidence is exculpatory to the immediate Ukraine impeachment attempt because it shows the entire process is a witch-hunt, and not the result of a “high crime or misdemeanor.”

The White Counsel stated that regarding all the documents relating to the whistleblower and Chairman Schiff that “At the very least, Chairman Schiff must immediately make available all documents relating to” the whistleblower’s contacts with the House Democrats on the Intelligence Committee. The only way Chairman Schiff is going to disgorge those documents is if the White House files an emergency petition in Federal Court demanding disgorgement of all Brady documents including the the whistleblower’s House Intelligence documents.  There is no downside because the President isn’t claiming or admitting that he is entitled to the evidence because of an impeachment inquiry, but because he is entitled to them to begin with.

However, unless President Trump acts quickly to legally enforce his Brady rights against the Congressional Democrats he will lose vital time necessary to successfully litigate the issue before a Senate trial, and those rights will lose their practical value.




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