This Lack of Fairness in This Impeachment is Horrifying

Frank Mulhall

I have been a trial lawyer for three decades. Candidly, the due process concerns attendant to the current impeachment fiasco make it difficult to breathe as a lawyer and as an American.  It is incomprehensible that so many lawyers on both sides of the aisle can be getting it so wrong.  We’ve heard a lot about whether impeachment is a legal or political process.  Inarguably, it is a legal process with political implications.  But, it is a legal process first, foremost and always.  Understand, impeachment is a Constitutional remedy for the removal of federal officers.  Our Constitution is the legal document that is the very foundation of American law.  It is the source of all statutory law and American jurisprudential precedent.  The preamble of the Constitution recognizes that all men are endowed with certain inalienable rights.  The document painstakingly identifies those rights.  In fact … there is a section of the document actually called “The Bill of Rights.”

Among those rights is due process and the guarantee of equal protection under the law. It is due process that most concerns me … and should most concern you … “here”. We know that generally, due process concerns the right to notice and fair opportunity to be heard.  The renegade impeachment process employed by the House is riddled with due process violations and notwithstanding the argument of the President’s defense regarding this malfeasance … each day the Senate and the defense allow the most significant among them to continue unchecked.  At the outset of the transfer of the Articles of Impeachment to the Senate, it was incumbent upon Mitch McConnell to acknowledge, declare and move the body of the Senate to vote on a resolution invoking the application of the Federal Rules of Evidence and Procedure. Understand, these rules were promulgated to inform and guide the conduct of a trial proceeding to ensure that it is fundamentally fair.

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They identify privileges and immunities, define hearsay and its exceptions, provide for cross-examination of witnesses (believed to be the greatest tool in the pursuit of justice), and the qualification, use, and admissibility of ‘expert’ testimony, etc.  These rules have not been invoked or applied at any stage of this proceeding. This has served to fatally compromise the conduct of the initial impeachment inquiry (conducted without the proper antecedent House vote), this ‘trial’, and its ultimate result.  I watch in disbelief and wonder … what “trial” are we talking about?

Some argue that these other ‘extraneous’ Constitutional principles are not applicable in this context.  That ‘this’ is a political proceeding.  I think that it is disingenuous (at best) to suggest that the scriveners of a document which identifies and professes to guarantee these fundamental rights, while at the same time identifying ‘impeachment’ as a legal removal remedy upon a Senate ‘conviction’, would ‘agree’ or could be construed as meant to have excluded the assurance of the very same rights in the context of an impeachment proceeding.  The argument is nothing more than a disingenuous nonsensically partisan blather.  The right to fundamental fairness is a natural right that guaranteed each man at all times.  This is the underlying foundational principle articulated in and by our Constitution. With all due respect, when Gerald Ford is your go-to Constitutional reference … you’re at the bottom of the legal argumentation chum bucket.

Understand, Justice John Roberts isn’t constitutionally called upon to merely decorate the bench, announce roll call votes and lunch breaks.  Anyone can perform those ministerial duties.  Chief Justice Roberts is there to adjudicate objections to the forms of the question and determine whether the parties have veered outside the scope of the evidence and/or argumentation during the trial portion of the proceedings.  There is nothing fair about what’s going on in the House and Senate … and nothing that even in the smallest measure resembles due process or a trial.

I’m horrified.  You should be, too.

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