Innocent until proven guilty. Confronting and questioning your accuser. Knowing the evidence against you. Defending yourself, including raising objections and calling witnesses to speak for you. Represented by counsel. Speedy, full, and fair trial. These fundamental ideas of fairness and due process are enshrined in our legal system.
While an impeachment proceeding is not a court of law, these fundamental concepts of due process and fairness need to be respected for Americans to have any confidence in the integrity of the proceeding.
In their rush to impeach President Trump, House Democrats turned back the clock and embraced the non-existent due process protections of medieval courts.
Our Founders lived in a world where many judicial proceedings were terrifyingly unfair and they drafted the Constitution to avoid the practices common at the time: Defendants deemed guilty unless they could affirmatively prove their innocence. Unclear accusations from unknown, unquestioned accusers. Prosecution hiding or misrepresenting its evidence. The defendant not being allowed to respond to the charges, object to the process, or call witnesses. A years-long wait or a rush to pre-determined judgment without full and fair consideration.
House Democrats also departed from the due process protections afforded prior presidents in impeachment proceedings. The Clinton impeachment was during an era of partisan tension like today, but Democrats praised the fairness of the procedures established by Republicans. How the times have changed.
House Speaker Nancy Pelosi called upon President Trump to prove his innocence. Yet it was her duty to prove his guilt, not his responsibility to prove his innocence.
Perversely, House Democrats claimed that by defending himself and not complying with the Democrats’ dubious “investigation,” President Trump proved his guilt. That was even the basis for one of the articles of impeachment.
All Republican witnesses and subpoenas had to be approved by the Democrats, the Democrats could unilaterally issue subpoenas, and Democrats refused to call witnesses requested by Republicans. In the Clinton and Nixon impeachments, the majority and minority jointly issued subpoenas, though the majority retained some veto rights in the case of a disagreement.
After allowing the threat of impeachment to hang over President Trump’s head for years, the Democrats rushed the process through in a matter of months. The investigation that formed the basis for the Clinton impeachment process took four years, while the Watergate investigation, criminal trial, and congressional inquiry lasted well over one year.
Democrats refused to let President Trump to be represented by counsel in the proceedings and to let him question any witnesses, effectively preventing him from defending himself, though the House Republicans ably stepped into the breach. In both the Clinton and Nixon impeachments, the president’s counsel was able to respond to the evidence presented.
Democrats presented fabricated evidence and the evidence they did have has been shown to be nothing more than their anti-Trump interpretation of what we would call “hearsay” in court. Yet they presented it as proven, unquestionable fact. In both the Clinton and Nixon impeachments, facts were established by independent evidence and by eyewitnesses who gave statements to independent investigators.
The Democrats started with closed-door hearings and selected what so-called evidence would be disclosed from them, only conducting open hearings in response to public pressure. By contrast, most of the Starr Report that was the basis for the Clinton impeachment was available to the public and the Nixon impeachment proceeded only after the public Watergate hearings. While executive sessions were used in the Clinton and Nixon inquiries, they were not the basis of the impeachment proceedings.
To be clear, the House is not a court and these due process protections are not required. But they are both customary and fair, what Americans rightly expect from an adjudicative proceeding.
By not affording President Trump basic due process rights, the Democrats undermined their credibility. The American people noticed, and as the House passed the impeachment articles this week, impeachment continued to lose popularity.
As Senate Majority Leader Mitch McConnell said, “Overturning the results of an American election requires the highest level of fairness and due process.” House Democrats did not even attempt to meet this standard, abandoning traditional notions of fairness and due process in their thirst for partisan blood.
Disregarding our shared norms and traditional practices harms our country and tears us farther apart. If Americans cannot trust the process, they surely cannot trust that the Democrats’ desired outcome — the removal of President Trump — is right.
Audrey Perry Martin is the Republican National Lawyer Association’s vice president for communications.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.