In Need of Due Process

Conservative activists are questioning the legitimacy of legal processes in at least two high-profile state cases.  A better course of action is to carefully monitor the processes for fairness and especially for the promotion of due process.  Protection future wrongdoing and due process for all will be strengthened.

On Tuesday, 9/5, the trial of impeached and suspended Attorney General Ken Paxton begins in the Texas State Senate.  At issue are whether the charges for which he was impeached earlier this year can be proven, and, if so, whether he should be convicted and thereby removed from office.  

To date, conservative GOP activists, as well as many state and local party officials, have maintained that the charges are bogus and that Paxton’s real crimes are being too conservative and making the GOP more conservative than desired by establishment/country club Republicans and RINOs (Republicans in Name Only).  Moreover, Paxton has been an outspoken supporter of former President Donald Trump and Trump’s claims that the 2020 election was stolen.  He cemented his Trumpian bona fides by going to the U.S. Supreme Court to prevent the counting of votes in states carried by President-elect Joe Biden.  He lost his case but won the admiration of pro-Trump GOP activists across the country.

The Republicans who support Paxton’s impeachment maintain that there is evidence he committed real offenses justifying his removal from office.  They demand that the process proceed to whatever verdict the Senate determines.

In Georgia, GOP activists are attempting to short-circuit the judicial process initiated by Democratic prosecutor Fani Willis, who has secured the indictment of Trump and 18 associates for allegedly unlawfully interfering with the counting of Georgia’s votes in the 2020 presidential election. They seek to have Georgia’s GOP Governor, Brian Kemp, defund Willis’s office and thereby end her prosecution of her case.  Kemp has refused, saying maintenance of the rule of law requires that Willis’s cases be completed to whatever final verdicts are rendered.

In both cases, those advocating the completion of the respective processes—an impeachment trial for Paxton, a criminal trial for Trump and his associates—are pursuing the better course of action.  This does not mean that the outcome of each process need be passively accepted by all concerned or the general public.  To the contrary, both advocates and opponents of impeachment and/or criminal prosecution, as well as the general public, have both the right and the responsibility to ensure that each process is conducted in accordance with the following principles designed to promote due process:

• The accused are presumed innocent until proven guilty;
• The accusers must bear the full burden of proving guilt;
• The public must get to learn of all evidence, whether it supports the accusers or the accused;
• The accused must be publicly exonerated if acquitted;
• The accused must have full rights of appeal if convicted;
• The accusers must be held fully accountable should they commit any acts of misconduct in their zeal to prove their cases;
• All procedures must be conducted in full view of the public. 

Of the reasons for supporting respect for judicial processes, three stand out:

First, conservative Republicans in Congress are preparing to launch impeachment proceedings against President Biden for alleged crimes related to the alleged misdeeds of his son, Hunter.  Those who undermine the legitimacy of the proceedings against Paxton and/or Trump thereby undermine their own credibility as they seek to use proceedings they’ve previously rejected.

Second, precedents set in the rejection of impeachment or criminal justice proceedings may come back to haunt them later on.  Whether Paxton should be convicted and removed from office is unclear at this time.  But to abandon the proceedings entirely and give him a free pass creates a precedent by which future Democratic and Republican officeholders may escape judgment and penalties for alleged misconduct even if otherwise deserved.  In the Paxton case, it’s better to use the trial outcome, whatever it may be, as a benchmark by which to judge and acquit (or convict) future Democrats and Republicans.  

Likewise, to arbitrarily remove the prosecutor and end her case before it’s properly adjudicated would set a bad precedent for future cases as well.  One must wonder whether those who want the prosecutor sandbagged and Trump freed from having his case adjudicated would also approve of a Democratic governor sabotaging a Republican prosecutor’s case against a Democrat.  One can also wonder whether those who approve of the tactics Trump is accused of using in Georgia would welcome a Democratic presidential candidate employing the same tactics to overturn election results favorable to Republicans.

Third—and perhaps most importantly—whenever due process is weakened anywhere, under any circumstances, each of us is put in jeopardy if we face problems with the law, since the weakening of due process, in any case, sets a precedent by which each of us may find our rights to due process are diminished as well.  As a Republican who thinks Biden must go—and take Kamala with him—I nonetheless will advocate for complete due process for him and Hunter should they be subjected to impeachment and/or criminal proceedings—NOT because I think they’re innocent (although, as a point of law neither has been convicted of anything), but because granting them due process increases the chances that I’ll receive due process if ever I should need it.

Respecting the processes by which we judge others, provided these processes promote due process, protects us all.

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Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton from 1987 until 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.