By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host
The impeachment of Donald J. Trump, when it comes to evidence and due process, reminds me of a scene from the Old West. “Yes, Sir, there is no evidence that you stole any horses, but we intend to prosecute you for resisting being hung for it.”
Our country’s founding was based on the idea of judicial fairness, and the self-evident truth that everyone is innocent until proven guilty.
In order to ensure that we have a fair justice system, in the early courts, and the 6th Amendment of the U.S. Constitution, the concept of due process was instilled. From the Framers’ point of view, the essential elements of due process of law are
notice, an opportunity to be heard, the right to defend in an orderly proceed,
and an impartial judge. It is founded
upon the basic principle that every man shall have his day in court, and the
benefit of the general law which proceeds only upon notice and which hears and
considers before judgment is rendered.
In short, due process means fundamental fairness and substantial
justice.
As the centuries have passed, through judicial experience, the elements have evolved into five essential elements recognized as the sine qua non of “due process.”
Equality. The system must not discriminate procedurally between parties. In the 6th Amendment, for example, it states that the accused has a right to have the assistance of counsel for defense. This means that if one party is entitled to counsel, then all are entitled. The call for Equality means that there must be a “level playing field” for all who are involved, including the disputants. Discrimination in appearance or fact is objectionable to the Equality required to satisfy due process.
Economy. The cost of access to justice must not be a barrier, either in use, or operation, within the system. Having one’s day in court must not be difficult to obtain by any of the parties.
Expedition. “Justice delayed is frequently justice denied.” The obligation of the system is to ensure that the proceedings are expeditious. This does not mean that shortcuts should be made, impairing the opportunity for an orderly procedure with adequate time to ensure notice, time to prepare, opportunity to identify and gather witnesses, and otherwise develop facts and arguments. It does, however, discourage dilatory tactics, unreasonable extension of time, and protraction of hearings.
Evidence. The system must be designed to elicit evidence, not assumptions; proof, not presumptions. While strict rules of evidence in the judicial sense may not apply to an impeachment hearing, the evidence admitted still needs to be relevant, and there must be an understanding that mere speculation and hearsay designed to prejudice rather than inform should not be acceptable.
Equity. The system must produce decisions that reflect a sense and substance of “rightness” and “reasonableness.”
In the end, however, with the Republican Senate now at the helm, I do believe we will reach Equity. Constitutionally, the House has no influence regarding the Senatorial proceedings. They can object all they want, but ultimately, now the rules and procedures are the call of GOP leaders in the Senate, and there’s nothing more the Democrats can do to poison the procedures.
