John Donald O'Shea

John Donald O'Shea is a retried circuit court judge and a columnist for The Dispatch-Argus.

President Donald Trump argues that he is being denied due process by Rep. Adam Schiff's secret impeachment inquiry:

The rules followed in the Richard Nixon and Bill Clinton inquiries are being trashed by Schiff, Nixon and Clinton had their attorneys present, members of their political party were allowed to question and cross-examine witnesses, and hearings were done in full view of press and public.

The Democrats respond that the president is making a dilatory process argument: We control the House, Since impeachment is not a criminal proceeding, we get to make up the rules and to ignore precedents.

Imagine that you live somewhere other than the United States. One day you are arrested. You ask the arresting officer, why? He answers, "Eventually, you'll find out."

You spend three years in jail awaiting trial. Then, an officer takes you out of your cell, and into the bowels of the building to what appears to be a courtroom. A judge requires you to take an oath to tell nothing but the truth. The judge begins to examine you.

You: Is this some sort of trial?

Judge: Yes.

You: Am I facing imprisonment?

Judge. Yes. You can be burned at the stake. If you recant, life imprisonment.

You: What am I accused of?

Judge: Heresy.

You: I want an attorney.

Judge: Innocent men don't need an attorney.

You: If you're going to burn me at the stake, I need an attorney.

Judge: This court has taken depositions of witnesses. This court has determined there is cause to believe the witnesses accusing you of heresy are credible.

You: What witnesses?

Judge: You are not entitled to that information. It is for the safety of the witnesses.

You: Don't I get a written charge? An indictment?

Judge: No.

You: Will I be allowed to see these witnesses in this court? Hear their testimony against me? Cross-examine them?

Judge: No.

You: How can I defend myself, if I don't know what my accusers have said?

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Judge: It is not necessary for you to know what they said against you. You defend yourself by answering my questions truthfully.

You: Wait! Are you the prosecutor or the judge?

Judge: Both.

You: Where is the jury?

Judge: I am your jury.

You: But you say you have already determined there is cause to believe my accusers are credible. You have admitted you are predisposed to find me guilty. I want an impartial jury.

Judge: In the court of Inquisition, there are no juries. Based on my preliminary examination of the witnesses, I have merely come to presume you guilty. If you can prove your innocence beyond a reasonable doubt, I will acquit you.

You: Can I call my own witnesses to prove my innocence?

Judge: No. They'd probably lie.

You: Can I testify for myself?

Judge: Yes, but as you are presumed guilty of heresy, your testimony is suspect.

You: What if I refuse to testify?

Judge: I will return you to your cell. You will have 30 days to reconsider your contempt of this court.

You: And if I again refuse to participate?

Judge: You will be adjudged a contumacious heretic and burned at the stake.

Whether presidential impeachment is a criminal proceeding or not, misses the point. The Spanish Inquisition was not a criminal proceeding. Yet, upon a finding of heresy, the heretic was remanded to the civil authorities to be burned at the stake.

Impeachment carries ruinous penalties. Our Bill of Right — the Sixth Amendment in particular — was designed by the Founders to ensure there would be no Spanish Inquisition — or its like — in America.

Our Bill of Rights creates procedures designed to fairly balance the governments need to convict against the right of the innocent man not to be convicted. Those procedures have come to be know as due process.

The Sixth Amendment procedures require "fundamental fairness," aka due process, in criminal cases: speedy trial, public trial, impartial jury, specification of the nature and cause of the accusation, right to confront and cross-examine witnesses, compulsory process for obtaining favorable witnesses, and assistance of counsel.

Many are generally required even in civil and administrative cases. The chief justice presides at an impeachment trial to insure that the president is accorded due process consistent with the nature of the proceeding. And to ensure the proceedings appear fair.

His rulings, however, can be overruled by a majority of the Senate, from which there is seemingly no appeal to the courts. But without due process, we would have the appearance and reality of a new Spanish Inquisition.

John Donald O'Shea of Moline is a retired circuit court judge


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