Impeachment Trial 2020: Elements of Due Process

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.”

This whole impeachment has been anything but a shining case of what judicial fairness, and due process, is all about.

During the House of Representatives impeachment inquiry, the Trump team was denied the opportunity to be heard, shut out of each session and meeting, and disallowed to present its own witnesses.  Therefore, there was no orderly proceed, and with liar Adam Schiff at the helm, the proceed did not enjoy the right to an impartial judge.

There has been no equality in the case.  The impeachment has been tilted heavily in the favor of the Democrats so that they may discriminate procedurally against the President, disallowing the President, during the House of Representatives phase of the process, the right to any counsel for defense.  The Democrats have not provided a “level playing field".

In the 6th Amendment it indicates the right to a speedy trial.  “Justice delayed is frequently justice denied.”  The Democrats drew out the procedure in the House, and regarding the transmission of the Articles of Impeachment to the Senate specifically for the purpose of allowing them the time to manipulate and carefully play the system with their dilatory tactics, unreasonable extension of time, and protraction of hearings.

There is no evidence.  Instead, what the Democrats have offered has been presumptions based on a twisting of circumstantial evidence.  The whole impeachment proceeding has been based on speculation and hearsay based on presumptuous conversations in the dark corner of bars and conference rooms, designed to prejudice rather than inform.

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.

The timeline set forth by Senator McConnell is quick, and calls for a vote before the start of the Primary Season.  In short, the whole thing is about to blow up in the face of the Democrats, and they know it, which is why they keep complaining about how the Senate is handling the hearing.

The Democrats still remain smug, however.  The polls, after all, are showing that most Americans favor the impeachment of President Donald J. Trump.  You know, polls by the same pollsters who predicted Hillary Clinton would win in 2016 by a landslide.

-- Political Pistachio Conservative News and Commentary