Preface. We’ve all got our indelible quirks. Mine is that (once in awhile) I’m that guy who throws the turd in the punch bowl. When the group is moving south I’m sometimes inclined to move north, especially when the group is starting to look like lemmings, and south is the direction of an ethical cliff. That’s how I’m beginning to feel today, after this week’s events – so, this blog is me…moving north.
- due process (n)
1 : a course of formal proceedings (as judicial proceedings) carried out regularly, fairly, and in accordance with established rules and principles called also procedural due process
2 : a requirement that laws and regulations must be related to a legitimate government interest (as crime prevention) and may not contain provisions that result in the unfair or arbitrary treatment of an individual called also substantive due process
3 : the right to due process [acts that violated due process ]
When you present a plan to any commander in the Army, she’s gonna want your BLUF (Bottom Line Up Front), so here’s mine. I disagree with my fellow DFLers who’ve made demands of immediate resignation for accused sexual harassers Senator Dan Schoen and Representative Tony Cornish. My objections are based primarily on two principles:
1. Our nation is founded on due process principles. And we remain free on due process principles. You cannot pick and choose when and where those rights apply based on your preference for the accused’s party affiliation. This latter practice has been a growing and odious habit.
2. Out-right demands for resignation, or summary punishment, without examination or vetting, allows those in charge of institutions to dodge accountability. And when that occurs. Nothing Changes. Let me say that again if you missed it: nothing changes.
I. Due Process In Principle – Why Should I Care?
Let’s start with the first point, due process in principle. The innocent-until-proven-guilty objection (made by those accused of sexual harassment) is trending, of course, much to the eye rolls of women who have silently endured sexual harassment for years without obvious recourse. Any one of them could easily object to these due process appeals with the following response, “NOW, you’re hanging your hat on ‘innocent until proven guilty?’ NOW, after you’ve ignored others’ pleas for the same respect for years, and when you get caught with your hand in the pudding, you’ve spontaneously grown a deep and abiding respect for an individual’s right to due process of law?”
Other than recognizing the fact that this is a completely understandable response, I have two rebuttals. First, I’ll reference Mitt Romney’s tweet about Roy Moore – the Alabama Republican Candidate for US Senate who was accused of sexual acts toward underage women (including one 14 year old). Mitt Tweeted, in part, “Innocent until proven guilty is for criminal convictions, not elections.” Mitt is right in this case because, after all, this is an election – a seat Moore is looking to gain – and these accusations against Roy Moore are pertinent to voters in whom that decision is constitutionally vested. Unproven rumors always have been, and always will be, fair game in elections – just as they are in Alabama this week. On the other hand, Bill O’Reilly’s echoing lamentations (see tweet, below) that “In America, we now have trial by media. There is no going back to innocent until proven guilty. All allegations will be treated as facts. And the country will pay a huge price for that.” We already are paying a huge price for that, of course. That’s because that practice been Bill O’Reilly’s playbook for 8 years under President Obama. It worked great for him then. His corkscrew hypocrisy is enough to make me nauseous. Bill’s objections relate to his getting sacked by Fox after he paid $50 Million to settle sexual harassment claims – to which I’d only speculate that Bill’s lawyers forgot to tell him he could always challenge the accusations at trial if they were false.
But Bill’s people love it when he whines like that! And our people love our leaders’ similar tone when it benefits our people. This is why yesterday’s brazen hypocrisy from Minnesota Republicans got me thinking about the direction all of this is going. Minnesota Republican Party Chairwoman Jennifer Carnihan could hardly contain her excitement when she demanded, only minutes after accusations against him were leveled, the resignation of DFL Senator Dan Schoen. Then, less than twenty four hours later, when the same or worse allegations were leveled against Republican State Representative Tony Cornish, you could have heard a pin drop from ol’ Jenny. This is the kind of thing people hate in general about politics and politicians. But it’s also the kind of thing they love specifically, if the response benefits their party of choice. It’s also why people only watch new stations that push content which reinforces their existing worldview.
Part of my annoying due process obsession comes from the fact that I’m a Philosophy major trained by Jesuits and, accordingly, subscribe to realism in the Platonic tradition which posits that there are certain, immutable truths which transcend situational circumstance. This means that might does not make right, and truths, in the words of Thomas Jefferson, are self-evident, and unalienable. These principles were passed down by the founders who enshrined them in our constitution for very good reasons. The founding fathers broke from a European world molded on the principle of the divine right of kings – a world where might absolutely made right. There was no other real existing model to curtail the absolute power of sovereigns who commanded absolute loyalty – save, perhaps, one model. That model was the Magna Carta. This was the first organic modern document in the west (which was not peddled by Rome) to assert that even an absolute monarch must obey the law, because things like justice, truth, and honor were in fact real things and were not merely the product of whatever mood the king was in on that particular day. It is the magna carta from which we derive modern jurisprudence on due process, namely (in formal due process) the right to (1) notice, (2) the right to be heard, (3) the right to confront an accuser, and (4) the right to review (appeal) to a higher body. Hundreds of years of hearings have gone into developing recognition of these rights and, if they’re going to be summarily dismissed I’ll be so bold as to say the case for dismissal needs to be more substantive than “Down with the Patriarchy.” Of course, these laws were not designed to be gender specific, but gender neutral. The world of the founders had many ways of subjugating women, or Africans, or Irishmen, or, well, everyone not like them. But when it came to crafting laws which recognized due process rights, they were very careful to write them allowing for universal applicability and objective standards. I humbly submit that if due process is good enough for Hermann Goering, then it’s good enough for a creepy guy at the capitol.
This is not to say that we cannot end up with farcical results under systems which employ due process, or, rather, less developed versions of it. Even the founding fathers, as students of the classics and of Roman history, were well aware of the political show trials that dotted the landscape of Roman society, and of how they impacted access to justice by people of lesser means, or slaves, or foreigners. Mob rule controlled the outcomes of these “trials,” and victory was a product of how many boorish hecklers you could buy, of your debating skill, or of something as unpredictable as the weather (no one shows up to accuse you in a rainstorm). The Latin phrase mobile vulgus means “the fickle crowd” and for hundreds of years high ranking Romans feared offending the irascible and petulant mass of humanity who had nothing left to lose, who had a lot of spare time on their hands, and who loved drama. But this did not mean Roman society was free – or that leaders were held accountable for transgressions unless they proceeded to piss off everybody (i.e. Nero).
Even the famously despised Pontius Pilate (Governor under a Roman system) made a great show of symbolically washing his hands of the disposition of Jesus of Nazareth before handing him over to the whims of a rowdy mob, and a politically charged Sanhedrin who tried him, without due process, under flimsy political rhetoric.
II. Summary Punishment Sidesteps a Full Accounting of Fault, and Sacrifices Systemic Changes Necessary to End Sexual Harassment
This leads me to my second reason, as listed at the beginning of this blog. Without formal due process, leaders may play upon popular opinions in groups, and use them to issue immediate proclamations, thereby sating mob demands. People, mobs included, love immediate resolution. They always have. After all, who wouldn’t? The problem with summary punishments is that they’re not always right, for obvious reasons. But they remain a viable tool because they have one extremely handy benefit for leaders who issue them – they obviate the tendency of a mob to demand answers of anyone higher up in the political food chain. And we all know who I’m talking about – I’m talking about the leader who issued the edict/proclamation/bull/press release/etc. I’m not talking about anyone specifically, here, but I am talking about human nature, and of how every political group in the history of written civilization has operated. Insofar as it is specific, we all know that a whole host of Minnesota DFLers have issued immediate demands for Senator Schoen’s resignation. I do not question the integrity of a single one of them. Nor do I suggest that the timing or motives of their statements have anything to do with the fact that (1) some of them are being accused of inaction as caucus or party leaders vis-à-vis then Representative Schoen’s accused actions, (2) some of them are running for statewide office and precinct caucuses are 3 months away. Let me be clear, these are people I like and respect and I have no questions as to their motives – but this is the very essence of due process! It should not matter if I personally trust them or not. I even like most of the DFL Senators who immediately called for Senator Schoen’s resignation – but I can guarantee you this much: if they had any question about retaining Senator Schoen’s seat in a special election, there is no way they would have acted so swiftly and decisively. You can take that one to the bank.
This is why due process of the accused is so important. And this is also why so many women have held off for so long without reporting sexual harassment. Should a young capitol staffer be forced to bear the burden of declaring, to the blame of fellow partisans for public shame assigned to a high ranking party member (or even for his subsequent electoral loss), not to mention to the detriment of her career, that he sexually harassed her? Under the current system, she does bear this burden, because it all comes down to a subjective standard, "Do you believe her?" Due process rejects subjective standards in favor of objective measures. This substanitally mitigates the tendency of placing the entire buden upon the victm of coming forward, because the accused is also questioned, and other evidence is weighed. It prevents the whole spectacle from devolving into an embarrasing show trial, tried in the press, which reduces credibility of the final result.
We need accountability to go up the political food chain. And in doing so we must fully vet who knew what and when did they know it. This is an uncomfortable process. It forces us to confront our friends, and it forces us to confront ourselves – which is why no one wants to have to do it, because things quickly grow ugly. An immediate and unequivocal summary disposition from a person in power obviates this ugly process and everyone breathes a sigh of relief. But nothing changes – because we’ve pinned the whole problem on the bad actor. And we all can walk away justified, shaking our heads saying, “Yeah I don’t know what that guy was thinking,” when we all secretly know that it’s bullshit. He was not THE problem. He was one guy who did some stupid things and needed to be called out on it. But by collectively turning our backs on him, forcing his resignation, and moving on we get to act like there’s nothing else we have to do to stop sexual harassment because we did it already – I mean, he’s gone, right? A couple of days after the initial reports, one accuser made clear that Senator Schoen was not the only one who acted inappropriately toward her. It's only by a full vetting that we may fairly weigh the evidence - including of others who may have crossed the line, or strayed toward it.
This all begs the question of punishment fitting the crime. I do not know if what Dan Schoen or Tony Cornish did warrants resignation. Maybe it does, but that, too, is a decision properly disposed of in a due process setting, when all of the relevant facts are put to him and he gets to respond. If resignation is the default answer for every accusation out there, we effectively abridge our ability to punish greater crimes proportionately. This is just one more reason why due process is warranted for these accusations.
Every once in awhile we begin to forget our constitutional roots – sometimes for seemingly very good reasons (e.g. the immediacy of war, the pain of a famine, the demands of a mob, or for even long-unaddressed plagues of sexual harassment). And when we dismiss these traditions for immediate need we may well solve a problem with greater efficiency and political dexterity, but we do so by sacrificing a little bit of our grandchildren’s birthright – the right to due process guaranteed by a constitution fought for and bled for by millions of our forebears.
Therefore, I am not calling for the outright resignations of Dan Schoen or Tony Cornish, or any other legislator accused of sexual harassment until they, just like any other citizen of America, is put through their due process.
And here’s tidbit folks may not be telling you. You cannot fire a legislator! It’s in the constitution. If you want a legislator to be able to be fired then you need to have a constitutional amendment to allow for it. This is why it’s such a difficult process to get elected in the first place. If you’ve never run for office then you’ve never been put through a 12 month job interview like that. That said, both the House and the Senate are the final constitutional arbiters of their membership – meaning that if the whole body wants to kick someone out, we can. But they’ll not have my vote for expulsion until I see due process principles honored and followed.
I think I acknowledge something for folks who'll jump to conclusions about what I am proposing. I am NOT proposing we use the current system to resolve these disputes. "Due process," per se, is not a system. It is a rubric on how matters are resolved. It does operate within the current system - a system which has been known to universally bar certain groups from its benefits. For example, a lynch mob is not due process. It is a method by which a mob summarily denies a person due process. So before you think I am suggesting business as usual, I hope you'll dig a little deeper on the demands of a system the truly offers due process. It's not just a good idea, it's the law of the land.
The House and Senate Ethics committees have long been lampooned as places where ethics complaints go to die. That’s because they are always evenly balanced Republican-Democrat and may only take action when someone defects to the other side. But they haven’t always been impotent. Some major action has come out of them on members whom everyone agrees are bad apples – however, these were usually individuals who were universally disliked. Members who enjoy high popularity will always be protected by their caucuses, meaning the Ethics committee will deadlock along party lines. There is long established precedent for this. Which is why for Sexual Harassment Accusations I propose a fast track due process for Ethics Committee Consideration. First, all accusations lodged (and may initially be lodged anonymously) automatically go to the House Ethics Committee and that the Majority Leader and the Minority Leader be designated as the Two House members who sign off on the complaint. Second, that a probable cause hearing be scheduled no later than 30 days from the filing of the complaint. Third, that a hearing on the merits be conducted no later than 60 days from probable cause hearing. Fourth, that a disposition and ruling be concluded no later than 14 weeks from the conclusion of a hearing on the merits. Fifth, that all proceedings be nonpublic. And sixth, that the accuser and the accused be provided with state funded counsel. This was just me spit-balling, and I am sure a better considered process can be formulated with more brains put together, but the important thing is that a process be established more formal than the loosie goosey situationalism of past Ethics Complaints.
So, here’s my bottom line. Minnesota Republican Chair Jennifer Carnahan is a brazen hypocrite. But so are all the Alabama dittoheads voting for Roy Moore, and so too can be plenty of Democrats who practice the same double standard, only hoping timing between incidents will be that holy grail that saves them from looking as bad as Jennifer Carnhan. And, since I hold nothing but contempt for brazen hypocrites, I’m gonna buck my party leadership, my friends, my colleagues whom I respect, and everyone else who are calling for Schoen and Cornish’s immediate resignation based on accusations. Let’s be clear, these allegations are serious. They deserve to be addressed immediately, they deserve a legitimate setting to be vetted, and they deserve an objective process with a rubric that makes clear a commensurate punishment for the degree of the offense. But a rush to assign a summary punishment of resignation without objective standards, and all the elements of due process as guaranteed by the founders, is not faithful to the constitution we swore an oath to uphold, and it sidesteps the important public vetting which is necessary to change our culture of sexual harassment.
John Lesch, 11-11-17