Due Process
“…if you admit you did something wrong you get it trouble, but if you deny it, they let you keep you job!” (SNL, 12/8/17)
Al Franken and John Conyers resign. Donald Trump and Roy Moore deny. In this new age of recognizing harassment and assault, we take the side of the accusers on faith. While this is the right thing to do, how do we make sure the process is fair?
Due Process: the right of Americans to have their side of the story heard, enshrined in the Fifth and Fourteenth Amendments to the Constitution. From the Supreme Court of the United States to the Principal’ office in any high school, granting due process is a requirement in any government disciplinary or enforcement action.
Today, there is a small movement claiming that Al Franken did not get due process. They call on him to rescind his resignation announcement, and allow the Senate Ethics Committee to investigate, deliberate and reach conclusions. It’s an odd group calling for this ranging from some who clearly support Franken and his work, including the liberal Progressive Change Campaign Committee,[1] to former Republican Speaker of the House Newt Gingrich and Fox News Commentator Laura Ingraham.[2]
Each side of “Franken supporters” has their own axe to grind. The Progressive Change Campaign Committee wants Franken to use his influence in the Senate to lead the cultural change of the “rules” of sexual harassment. Gingrich and Ingraham most likely want Franken to stay so they can continue to attack him (Gingrich, who had an affair with a staffer while married and Speaker and impeaching Clinton may also be looking for personal redemption.[3])
But all of this gives rise to a greater issue. In this dawning age of changing rules, how should sexual harassers and worse be judged? Franken, who admitted to some of the actions his accusers claimed (but not all) resigned under extreme pressure from his Democratic colleagues. Congressmen John Conyers (D) and Trent Franks (R) resigned as well.
None of these legislators were given a “hearing,” nor were the charges against them investigated by some authoritative body. There was only an informal judgment by their political party, and “punishment” applied as pressure to resign. And, of course, from a purely political standpoint, all of them will be replaced by members of their own party.
Roy Moore and Donald Trump both claim “due process” through the election process. Their argument is that the public “judges” by their vote. They claim that once the scandal is out, and the “jury of the electorate” makes their decision, the problem is resolved.
The Alabama election raises a different political question: should Republicans be willing to give up a precious vote in the Senate for their moral scruples, or is their a “higher” cause of political agenda that makes “the end justify the means?” Or can they take a middle course, allowing Moore to be elected, then removing him so a Republican governor can appoint a replacement.
This is the issue that will face the US Senate should Moore win tomorrow’s Alabama election: the Constitution requires that he gets his seat in the Senate (Powell v McCormack) but then the Senate could judge Moore’s ethical standing to stay. The Republican problem is that if they determine Moore should be removed, then what does that say about President Trump with his list of accusers. If the “due process of the electorate” does not absolve Moore, then it shouldn’t absolve Trump either.
If Franken decides to return to elective politics, does his resignation serve as the penance required from him to return? Would reelection “clense” him? Or are his admitted actions a permanent bar from political office? Our new awareness of sexual harassment gives rise to the need for a new set of “rules.”
Those rules are needed soon. The “rumor mill” has the Washington Post prepared to out 20-30 members of Congress as harassers – what will happen then?[4] We are already in one Constitutional crisis with President Trump and Russia: are we ready to handle two?
[1] http://www.washingtonexaminer.com/liberal-group-al-franken-can-stay-in-the-senate-help-with-culture-shift/article/2640961
[2] http://thehill.com/homenews/media/363707-gingrich-ingraham-dems-speaking-out-against-franken-a-lynch-mob
[3] http://www.rollingstone.com/politics/news/newt-and-callista-an-affair-to-remember-20120126
[4] https://townhall.com/tipsheet/guybenson/2017/12/08/hoo-boy-wapo-cnn-preparing-to-expose-dozens-of-members-of-congress-on-sexual-harassment-and-misconduct-n2419647
