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Due Process: The Thing Democrats Decided To Forget

The opinions expressed by columnists are their own and do not necessarily represent the views of
Senate Television via AP


In this season of a political maelstrom, Trump’s impeachment offers Americans a splendid window on our legal system. Frankly, the old common law standard Due Process is the best way to properly view impeachment as it presumes fairness – common sense, transparent process, and just standards, outside any emotion and bias. One can argue Due Process as the crown jewel of the common law. 



Impeachment is not abstruse, but resembles a trial, synonymous for “accusation,” or “charge.” The US House of Representatives has sole discretion in assembling the charges.

The House, upon a credible accusation of crimes, assembles a fact-finding council, typically the Judicial Committee. If after examination, the committee concludes the president committed “Treason, Bribery, or other high Crimes or Misdemeanor,” the findings are crafted into Articles of Impeachment. The entire House votes based on a simple majority. If by plurality, the president is voted guilty, managers are appointed and impeachment is brought to the US Senate.

The US Senate acts as the jury. House managers deploy as prosecutors while the president is defended by his team. Articles and supporting evidence are presented, the case is argued. Eventually, votes are cast. The president is convicted only by two-thirds super-majority. If so, the president is removed.  


During our current period of journalistic abdication, lost in a wilderness of fevered opinion bleated by manic pundits, many contrary statements are offered. How can average Americans know the truth? Viewing impeachment through Due Process, these claims are fairly assessed. But what is Due Process? 


Derived in AD 1215 from Chapter 39 of King John’s Magna Carta, Due Process originally provided no freeman would be incarcerated, deprived of property, or harmed except “by the law of the land.” Developed against arbitrary, abusive royal power.


One example of early Due Process comes from Dr. Bonham’s case, AD 1610. A London medical school gained the power to imprison those practicing medicine without a license. Famously, Lord Coke argued this law was... “against common right and reasons.” In declaring laws against common sense illegal, he echoed Thomas Aquinas’ claim, “an unjust law is no law at all,” which Martin Luther King Jr. later quoted in his Letter from Birmingham Jail. 

Due Process demands universal fairness, in the procedure and substantive matters, by a scrupulous adherence to established rules by all government authorities, and private parties at law.  For example, all parties must receive proper notice of legal hearings, afforded to both paupers and kings. This notion, ‘Rule of Law’, essential to the Founders, was championed in Rev. Samuel Rutherford’s “Lex, Rex, or the Law and the Prince.” Law revealed as a sovereign.


Lord Coke’s analysis reveals the genius of the UK common law via Natural Law analysis. Judges adapted timeless principles to a changing society. Centuries before, King Alfred the Great started by studying Levitical law, extracting core principles for English laws. Thus evolved Anglo common law. 


Natural Law melded ancient Greek legal theory with biblical principles and common sense. By its power and utility, it became the basis for Western law. Now rejected, its principles founded the US Declaration, Constitution and Bill of Rights – masterpieces of Natural Law statecraft, and by universal acclaim, the most influential government documents for 300 years.


But how to apply Due Process to impeachment? Substitute for this phrase the word “Fairness.” By demanding both sides use transparently fair rules and procedures, in established law, common sense, constitutional rights, and relevant legal and historical precedent. As Americans, 5th & 14th Amendments to the Constitution guarantee no person “be deprived of life, liberty, or property, without due process of law. The powerful echo of Magna Carta. 

Regarding Trump’s impeachment, why should we countenance setting aside our Bill of Rights? Conviction by slander, hearsay, vague charges, or dubious proof is un-American. Due Process asserts preserving constitutional, legal and criminal rights of all citizens as our greatest goal, even for anti-Trumpers.

Due Process can be understood as a powerful natural law magnifying glass to examine any detail of the case to make sure basic fairness is applied. Yet, as President Trump’s attorney Jay Sekulow stated, “Believe me, what has taken place in these proceedings is not to be confused with due process, because due process demands and the Constitution requires that fundamental fairness and due process...” 


When it’s proclaimed all accused are innocent until proved guilty the heart swells at this magnificent standard. We are most protected by our Constitution. So, when defending these fundamental laws, and deeply established principles, we defend ourselves, celebrate the past and help protect all future Americans from judicial tyranny. 

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