By the time you read this, the impeachment trial of President Donald Trump will have begun. It may even be over. But the opportunity for lessons about what it means to provide a democracy’s citizens with a fair trial will long outlast its outcome.
In the weeks leading up to the impeachment trial it was hard not to feel overwhelmed by the debates over “due process,” a term that may be unfamiliar to some. Distilled to its essence, due process means a fair trial, and in a properly functioning democracy, everyone has the right to one — whether you are an individual accused of a crime, a billion-dollar corporation liable for harming the public or the president of the United States facing removal from office.
This impeachment has exposed fundamental questions about due process. Fair trials are a cornerstone of our democracy. For proof, you need look no further than the express preservation of due process and the right to a jury trial right in both the Bill of Rights and the Maine Constitution.
The impeachment drama playing out in Congress tests our democracy’s commitment to providing fair trials to all. Can a trial be fair if no witnesses are called? Is due process observed if a juror declares he has already decided its outcome before a trial begins?
This op-ed provides no answers to these ultra-divisive questions. Rather, it illuminates the opportunity for renewed appreciation of due process and the right to a fair trial.
The framers of our national and state constitutions both understood that at least three elements are common to any fair trial. Impartial jurors must listen to witnesses and review evidence with an open mind before deciding a case’s outcome. The trial’s rules must be decided in advance, be open and transparent, be fair to all sides and must not dictate a predetermined outcome. And judges must oversee the trial and apply the trial’s rules in an even-handed way.
As easily as said, these ideals are just as easily abandoned. Chief Justice John Roberts, who is at this moment presiding over the Senate trial of America’s 45th president, warned of exactly this. In his recently released 2019 Year-End Report on the Federal Judiciary, he told his fellow judges that “we should … remember that justice is not inevitable. We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity, and dispatch.”
The principles of fairness in trials articulated by Chief Justice Roberts long predate our great American democracy. The Bible commands in Deuteronomy 16:19: “You shall not pervert justice; you shall not show partiality, nor take a bribe, for a bribe blinds the eyes of the wise and twists the words of the righteous.”
Whatever its outcome, the gift this impeachment process provides is the reminder of how fragile are the due process protections constitutionally guaranteed to each of us. Outside the public eye of cable news and social media, powerful special interests are working to gut our due process rights to a fair trial. For one example, slipped into nearly every consumer contract in America is a clause signing away your due process rights to a fair trial if a product or service you purchase harms you, steals from you, defrauds you or prevents you from getting the care you need. You’ll find these fine-print clauses everywhere — with your credit cards, consumer products, medical products, nursing homes — but they all have one thing in common: They force you into secret arbitration proceedings, organized by the industry, in which there is no judge, no due process and no jury. The industry decides what rules will apply, who the “judges” are and, ultimately, what the outcome will be. And thanks to their powerful lobbyists, it‘s all legal.
While the impeachment trial reveals the extent to which we are a divided nation, we still have our constitutions to unite us. These grant the precious gift of due process under the law. It is up to us to act to hold on to that gift. A valuable lesson of this impeachment is that we must demand nothing less.
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