The Personal Website of Mark W. Dawson

Justice and The Rule of Law in Non-Judicial Proceedings

Introduction

In my article “Justice and the Rule of Law in America” I point out that without the Rule of Law, there can be no Justice. But the Rule of Law requires that several concepts and tenets be enforced for Justice to prosper. These concepts and tenets are “Etched in Stone”. The concepts are; Due Process; Speedy Trial; Presumption of Innocence; Trial by Jury; Burden of Proof on Prosecutor or Plaintiff; and No Burden on Defense, while the tenets are; An Independent Judiciary; Probable Cause; Equality Under the Law; Equal Protection of the Laws; Pursuit of Justice; Pardons and Commutations; Full Faith and Credit; and Contract Law Enforcement. All of these were necessary to preserve Human Rights, Constitutional Rights, Liberty, Freedom, and Equal Justice for All. They are not only appropriate and necessary in judicial proceedings but should be kept in mind in all our non-judicial governmental proceedings.

While these proceedings do not occur in a judicial process the concepts and tenants are applicable as these concepts and tenants are needed to protect the Human and Constitutional rights of the person(s) involved. I am primarily concerned with witnesses, experts, and Presidential appointees before Congressional committees and commissions, as well as Executive advisory boards. Without following these concepts and tenants it is all too possible for the questioner to “Attack the Messenger” with baseless, unfounded, incomplete or inaccurate accusations or allegations. It may also allow a witness or expert to make baseless, unfounded, incomplete or inaccurate accusations or allegations against others who are not involved in the process, or do not or cannot have the opportunity to defend themselves.

These types of accusations and allegations are harmful to the individual and the body politic. They harm the individual as they may have their reputation tarnished, and they stand to lose their employment, wealth, future opportunities, and even family and friends as a result of these accusations or allegations. They harm the body politic as it installs fear and intimidation in the current and future witnesses, experts, and appointees, which makes it difficult to obtain accurate, truthful, and honest information needed to form governmental laws and policy, as well as attract qualified nominees for Presidential appointments. It is also an assault on free speech rights, and the right to petition the government for a redress of grievances, as it is often done to intimidate someone or some group into silence. It is sometimes done to obtain favorable testimony rather than accurate testimony.

Rules of Order for Congressional committees and commissions, as well as Executive advisory boards, are in place, but they should be strengthened and enforced to protect witnesses, experts, and appointees. There should also be significant punishments for those that violate the Rules of Order, especially our elected officials who violate the Rules of Order as they have an affirmative Constitutional duty to protect our rights. Without a Rule of Order, and the enforcement of the Rule of Order, that protects the rights of current and future witnesses, experts, and appointees we will be going backward to despotism. Despotism in which Power, Mob Rule, and Favoritism determine Order, which is not Order but tyranny. God help us all if this becomes our standard for the Rule of Order.

Today, however, there appears to be little concern for these concepts and tenants in our political discourse and deliberations, especially by Progressives and Leftists, and most disconcerting the Democratic Party leaders. The Democrats that engaged in these tactics want to be the leaders of our country and to formulate the Laws, Rules, and Regulations that we must all live under. If they cannot understand and apply these concepts and tenants of the Rule of Order then they are unfit to become leaders of a people dedicated to Freedom, Liberty, and Equal Justice for All and, indeed, they are dangerous to the Rule of Order.

We have also seen an increase of disparagement of persons that have, or are about to, deliver a message that is unwelcome by one side or the other. Not only do these actions pervert political discourse and deliberations but they also damage the good name of the accused. So, lets us also remember the words of the Bard:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing;
’twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
- Shakespeare  ...  Othello

* * * * *

The most recent examples of this are; The nomination of Judge Brett Kavanaugh to the Supreme Court, the Russian collusion accusations against President Trump, and the Impeachment of President Trump. A few of the details of these violations of the concepts of the Rule of Law are:

In the case of the January 6th Select Committee

The January 6th Select House Committee investigating the January 6, 2021 “Insurrection” (which I have written upon in my collected Chirps on "Insurrection") was not properly authorized and constructed through normal House procedures. This committee had nine members, seven of whom were highly partisan Democrats opposed to President Trump, and two were Republicans who were opposed to President Trump, all of whom were chosen by Democrat Speaker of the House Nancy Pelosi without the approval of the Republican House Minority Leader. Indeed, Speaker Pelosi rejected the original two proposed Republican members by the Republican House Minority Leader, and when the House Republicans refused to participate after this rejection, Speaker Pelosi acted unilaterally to appoint the Republican members who would give the appearance of bipartisanship. In addition, the seven Democrats and only two Republicans are out of proportion to the party membership divide in the House of Representatives. As such, this committee was formed to reach a predetermined conclusion rather than determine the facts and truths to prevent future occurrences of this type of event. It was also formed in such a manner that the findings of the committee could be utilized in future electioneering and fundraising of Democrat candidates.

In addition, it did not properly operate with the rules of process that a normal House committee implements to ensure that the concepts and tenets of justice were implemented. There was no Congressperson on the committee who would challenge the witnesses and/or defend President Trump, no witnesses in President Trump’s favor were called, no testimony of or for the ‘insurgents’ was allowed, and no critiques of Speaker Pelosi’s and the Washington D.C. mayor actions (or inactions) prior to and on the day of the “insurrection” were allowed. All of which I have Chirped on, "06/12/22 A Kangaroo Congressional Committee Hearing".

Given that we now know that the January 6th Select Committee engaged in disinformation, misinformation, malinformation, and a cover-up of information that exonerated President Trump, as well as selective leaks to tarnish President Trump and that the committee itself had been constructed contrary to House rules, this committee had all the appearance of a Kangaroo Court befitting a Banana Republic. A Kangaroo Court that is antithetic to our "American Ideals and Ideas".

In the case of Judge Brett Kavanaugh:

• Due Process
  The Senate has a process for vetting all nominees for Judicial and Executive office positions. This process collects all relevant information, as well as any reports, stories, and allegations against a nominee. It then uses its investigative powers in a confidential manner to determine the accuracy and veracity of what it has collected. This is done to protect both the nominee and the accusers from a public spectacle. If there are any questions or concerns the nominee gets to respond in a confidential manner. Any outstanding issues after this process is concluded are then aired at the hearings for the nominee. It is then up to the Senators to determine the fitness of the nominee for the office they were nominated for. In the case of Judge Brett Kavanaugh, this process was ignored for the sexual harassment allegation, and the allegation was leaked and aired at the last moment thereby rendering due process inoperable for this allegation.
  
• Speedy Trial
  A speedy trial is necessary to assure that all parties memories are fresh and that all supporting evidence can be gathered before it may be lost. For allegations that are years or decades old, this cannot happen. That is why we have statutes of limitations in the law. For allegations against a nominee that that are old, there must be contemporaneous and credible, verifiable, and substantiated evidence of wrongdoing. If there is no such evidence that the allegations must be filed and not revealed as they only serve to damage the reputation of the nominee without the ability for the nominee to refute the allegation.
  
• Presumption of Innocence
  All people are presumed innocent until evidence is produced that is beyond a reasonable doubt or by the preponderance of the evidence. In the case of Judge Brett Kavanaugh, many Senators presumed his guilt and acted accordingly. To not keep an open mind and the presumption of innocence is to preordain an outcome, an outcome not based on evidence.
  
• Trial by Jury
  The defendant in a trial has the right to be represented by an attorney whose only interest is the client’s welfare. They also have the right to cross-examine the witnesses against them. This is done to assure that all relevant information is presented before a verdict is reached. In the case of a nominee, the people defending them are Senators that have other concerns besides the nominee’s welfare. There is no right of a nominee to have representation or cross-examination and therefore it is quite possible that not all relevant information is presented in their defense. If Due Process has been followed then this could have occurred within Due Process, but as Due Process was not observed for Judge Brett Kavanaugh, he did not have the ability to defend himself or cross-examine the witness against him.
  
• Burden of Proof on the Prosecutor or Plaintiff
  If you raise an allegation against a nominee it is your responsibility to prove the allegation is true beyond a reasonable doubt or by the preponderance of the evidence. To not do so is to ask the nominee to prove a negative. As anyone who has studied jurisprudence, philosophy, theology, or science knows that it is impossible to prove a negative. An example of this from our Colonial history is the Salem Witch Trials. Several adolescent girls accused many men and women of bewitching them. These people were then brought to trial, a trial in which they were required to prove that they were not witches. More than 200 people were accused, 19 of whom were found guilty and executed by hanging (14 women and 5 men). As it was not possible for them to prove a negative they suffered terrible consequences as a result of not being able to prove a negative of their not being witches. If you cannot prove an allegation, then as Christopher Hitchens once said: "What can be asserted without evidence can be dismissed without evidence".
  
• No Burden on Defense
  The nominee has no burden to prove or disprove anything, and that cannot be held against them. If you place a burden on the nominee, then you are asking them to prove a negative or to possibly testify against themselves. All burden of proof is upon those asserting the allegation and not the nominee. The nominees only obligation is to explain their directives or rulings from their government service, their past actions within government service, their public policy positions, and their fitness, capabilities, and capacities to serve.

Because none of these tenants were applied with what was done to Judge Brett Kavanaugh this was a violation of the concepts of The Rule of Order.

In the case of President Trump on the Russian Collusion Allegations:

• Due Process
  The origins of the allegation of collusion with the Russian government to affect the outcome of the 2016 Presidential election are still, somewhat, shrouded in mystery. What little we know it appears that the rules and regulations for initiating an FBI and Justice Department inquiry may have been broken, if not outright criminal actions may have been taken, by the FBI and Justice Department. If this occurred than Due Process was not followed, and the investigation was illegal. Therefore, by the doctrine of “The Fruits of the Poisonous Vine” any subsequent actions were illegal, including the appointment of a Special Prosecutor and prosecutions that resulted from the fruits of their labors.
  
• Speedy Trial
  The initial investigation and Special Prosecutor activities took almost two and a half years and employed 19 lawyers who were assisted by a team of approximately 40 FBI agents, intelligence analysts, forensic accountants, and other professional staff. The Special Counsel issued more than 2,800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communication records, issued almost 50 orders authorizing the use of pen registers, made 13 requests to foreign governments for evidence, and interviewed approximately 500 witnesses. During this time a cloud of suspicion and tarnishing of the reputation was upon President Trump. No one should have to endure this cloud for this amount of time, and that is one of the reasons that we have a right to a speedy trial. An example would be if someone was accused of child pornography and they had to wait for an extended period for the investigation to proceed, charges to be filed, and the start of their trial. During this wait time, they may experience the breakup of their marriage and loss of their children, the loss of their relatives and friends, the loss of employment, and the tarnishing of their reputation, not to mentions the negative financial impacts. Imagine that this occurred and that before the trial began the prosecutor decided to not file or to drop the charges. This would be a total travesty of justice and an affront to the Human and Constitutional rights of the defendant. Speed is a necessity to protect the rights of the defendant and for The Rule of Law, and this speed was not afforded President Trump.
  
• Presumption of Innocence
  From the beginning Progressives and Leftists, Democratic Party leaders, and the mass media made little pretense of the Presumption of Innocence of President Trump. Statements by these parties and the pervasive news coverage were practically all based on rumors and innuendo that presumed guilt. To not keep an open mind and the presumption of innocence is to preordain an outcome, an outcome not based on evidence. It also led these parties to make many outrageous statements that were proved by the Special Prosecutor to be false.
  
• Trial by Jury
  A trial by jury gives the defendant and prosecutor the ability to present their evidence for a jury to determine a guilty or not-guilty verdict, thus allowing the defendant to clear their name and reputation or face the consequences for their illegal activities. In the case of President Trump, there was no trial by jury as no criminal indictments were filed. There was, however, a report that was issued to Congress and the public what contained many salacious details that could not be clarified nor refuted as may have happened in a trial. In addition, the report was from the perspective of the Special Prosecutor which did not contain any rebuttal from President Trump. Therefore, President Trump did not have an opportunity to defend himself and clear his name as he would have had in a trial.
  
• Burden of Proof on the Prosecutor or Plaintiff
  Many allegations of criminal or nefarious actions were made against President Trump by Progressives and Leftists, Democratic Party leaders, and the mass media. None of these allegations or nefarious actions were supported by credible, verifiable, and substantiated evidence of wrongdoing. If you cannot support an allegation, then as Christopher Hitchens once said: "What can be asserted without evidence can be dismissed without evidence".
  
• No Burden on Defense
  It was not necessary for President Trump to defend himself. President Trump had no burden to prove or disprove anything, and that cannot be held against him. All burden of proof is upon those asserting the allegation and not upon President Trump. Many of those making allegations against President Trump was asking him to prove a negative. As anyone who has studied jurisprudence, philosophy, theology, or science knows that it is impossible to prove a negative. President Trump did defend himself in asserting the there was no collusion and no obstruction of justice which proved to be true statements. He, of course, expressed his frustrations in being falsely accused, but any defendant has the right to assert their innocence and frustrations with being falsely accused. The unprecedented waving of Executive Privilege for all his communications, and supplying all documentation that the Special Prosecutor requested, is proof of no intent to obstruct justice.

As can be seen by the above remarks President Trump was afforded no protections of the concepts of The Rule of Order. The Impeachment proceedings that have started in The House or Representatives  are another example of this improper conduct in non-Judicial proceedings.

In the case of the Impeachment of President Trump:

The Impeachment of President Trump brings to the forefront the issues of Justice and The Rule of Law in Non-Judicial Proceedings, as well as other Constitutional  issues. As a result I have written more extensively on these issues in a series of articles on "Impeachment".