Berman & Simmons attorney Daniel Kagan authored this op-ed discussing how the impeachment of President Donald Trump is highlighting fundamental questions about due process and the right to a fair trial. This opinion piece was published in the Portland Press Herald.
What Impeachment Means for Fair Trials In America, and Why You Should Care
Special interests want us to pursue claims in a private forum, but we must hold on to our due process rights.
By the time you read this, the impeachment trial of President Donald J. Trump will have begun. It may even be over. But the opportunity for lessons about what it means for a democracy to provide its 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 by 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 brought to the forefront 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 the jury trial right in both Article VII of the Bill of Rights and Article I of the Maine Constitution.
The drama playing out in Congress involving Donald Trump’s impeachment 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.
When our nation and our state were founded, the framers of our respective constitutions understood that no fewer than three elements are essential to any fair trial. Impartial jurors must listen to witnesses and review evidence with an open and 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 pre-determined outcome. And judges must oversee the trial and apply the trial’s rules in an even-handed way.
These ideals are easily said and just as easily lost. Chief Justice John Roberts, who is at this moment presiding over the Senate trial of America’s forty-fifth president, warned of exactly this. In his recently released 2019 Year-End Report on the Federal Judiciary, he told his fellow judges that “[w]e 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.”
These 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 of this impeachment process is the reminder of how fragile are the due process protections our consititutions guarantee to each of us. Outside the public eye of cable news and mainstream social media, powerful special interests are working to gut our rights to have a fair trial. These special interests use their immense lobbying dollars to get laws passed that take away access to fair justice. For one example, slipped into nearly every consumer contract in America is a clause signing away your due process rights to a trial if the product or service harms you, steals from you, or prevents you from getting the care you need. These clauses force you into secret arbitration proceedings organized by the industry. In those secret arbitration proceedings, there is no due process and no juries. The accused industry insiders decide what rules will apply and who the “judges” will be. Unsurprisingly, the industry wrongdoers win almost every case. And thanks to their powerful lobbyists, it‘s all legal.
We are a divided nation, as the Senate impeachment trial of President Donald J. Trump shows. But hope rests in the Constitutions that provide the framework under which it proceeds. These Constitutions grant to each of us the precious gift of due process under the law. Fight for that gift. Fair trials, with impartial jurors, a level playing field and even-handed judges, make America great. We should demand nothing less.