Now that the United States Senate has disgraced itself by ignoring the rule of Anglo American law and procedure and that body’s constitutional role to actually “try all articles of impeachment,” we must ask ourselves how the civil and criminal proceedings in our nation’s federal and state courts may be affected.
Based on the Senate’s and the president’s conduct, we now know that:
• Facts grounded in actual evidence don’t matter. If the facts don’t fit a side’s chosen narrative, then that side is free to create its own “alternative” facts from whole cloth — no supporting evidence required.
• Truth doesn’t matter, either. One infamous Trumpublican summed it up best: “Truth isn’t truth.” Nowadays it’s all in the eye of the beholder.
• In a trial, the arguments of lawyers now stand as proof of what they say despite that the arguments of lawyers have never been considered evidence in American courts. But now, if a lawyer states his version of the truth based on his alternate facts, then the fact finder (the jury) can find that his statements are proof of the alternate truth and facts — again, no supporting evidence required.
• A person or official with power, money or privilege is free to bully and intimidate fact-finders in advance of their determination of that person’s guilt or liability.
• Partisan politics is free to influence legal proceedings and, in fact, determine the outcome of those.
• Oaths of jurors to conscientiously try charges and decide them according to the evidence and to not disclose anything about their deliberations other than as required by law, are meaningless — just words to be conveniently ignored without consequence.
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• Oaths of office to follow the law and support, protect and defend the Constitution are, likewise, meaningless.
• The rule of law has been abrogated in favor of the rule of expediency. A person’s unlawful or unconstitutional conduct will be excused if he or she believes the conduct is in interest of some concocted higher value or partisan ideology.
• The outcome of legal proceedings can be rigged by those with money, power and privilege, without consequence.
Since the founding of our nation, and before from the common law, we have come to rely on the rule of law, on legal proceedings grounded in truth, facts, evidence and the oaths of jurors, judges and elected officials to uphold those fundamental principles.
The United States Senate and the president have now unequivocally demonstrated that those principles don’t matter — especially where money, power and privilege are involved.
And, by their example, if those seminal principles of law don’t matter to the highest elected officials in our government, why, then, should they control the conduct of ordinary citizens? If the highest can ignore the law and Constitution without consequence, why not the rest of us? When it serves their purposes, why should not our jurors and elected officials simply follow the example of the Senate and the president?
Think about that when you read about some local miscarriage of justice or when you or your loved one is the victim of a legal proceeding run amok. Take comfort in knowing that it’s just us following their example, that this is the new normal.
Indeed, understand that from now on the goal of our legal system is not truth and justice. Rather, it’s who gets to take the victory lap.
James C. Nelson of Helena is a retired Montana Supreme Court justice.