What an Example

United States Capitol dome with dramatic clouds
The dome of the United States capitol with an American flag and dramatic clouds behind

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.
  • 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 the 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.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.

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About the author

James C. Nelson

James C. Nelson (Ret) was an associate justice of the Montana Supreme Court. He took office in May of 1993, following an appointment by then-governor Marc Racicot, and he retired on December 31, 2012.

9 Comments

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  • I am still waiting to see anyone produce a material fact that a crime was committed, nonetheless one that rises to impeachment. This was effectively a successful motion for summary judgement. The dems case was baseless.

        • Then I guess then you can say the same for the three Democrats voted against the impeachment of President Trump in the House of Representatives and one voted “present.”

          One of the Democrats who voted no has already said he would leave the party.

          The three voting (at least partially) against impeachment: Rep. Jeff Van Drew of New Jersey, who has already said he will switch parties to become a Republican, longtime Minnesota Rep. Collin Peterson, and Rep. Jared Golden of Maine, who voted in favor of the first article of impeachment (abuse of power) but not the second (obstruction of Congress).Rep. Tulsi Gabbard, also did not vote in favor of impeachment: She voted “present.”

          • What Nelson wrote is applicable to both parties. Especially to whichever has the majority rule. The “mob” rules by it’s selected “rules”. Hence, their, the govt’s, “democracy”. Had the Democrats “ruled” both houses, Trump would have been gone a week after taking office and probably sitting in prison instead of the WH.

  • Fresh off the Senate impeachment trial that resulted in President Trump’s acquittal, Sen. Rick Scott, R-Fla., is calling for an amendment to the Constitution that would make it more difficult for presidents to be impeached.

    Scott’s amendment would require a super-majority of three-fifths of the House of Representatives in order to approve articles of impeachment, instead of the current standard which is a simple majority

  • It should scare the hell out of us all that republicans don’t envision ever being burned by the precedent they have set; that cheating in an election (with the help of a foriegn government) is not impeachable. Clearly they do not think that a democrat will ever be elected again. Do they know something we don’t know?

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