The Abandonment of the Rule of Law: Guilty Until Proven Innocent

Only if you have been living under a rock, well maybe not even then, would you not know of the Senate hearings regarding Judge Brett Kavanaugh. The Supreme Court nomination of Judge Kavanaugh has been a sad spectacle of failure of our entire society’s concept of fairness. We as a nation have prided ourselves on our ethics, virtues, and morals of justice and fair play. At least in everything except politics. That is where things go off the rails.

A couple of years ago when I ran for county office in Texas, I was amazed and so disappointed in the actions and antics of my opponent and her supporters. I naively thought people were better than that.

I remember a gentleman that I respect very much tell me that during election season, people lose their minds, say things they know are false, hurtful, and frankly crazy. This is all in the effort to support their candidate or position. After it is all over, they think nothing about it and can’t understand why the person they did their best to destroy would be in the slightest way upset.

What I experienced was nothing like the hearings Kavanaugh was subjected to recently, but it was bad enough. No truths, no evidence…only rumor, accusations, and character assassinations. It was the age-old adage in the realm of the “When did you stop beating your wife?” type questions. No matter what the answer is, it is wrong. There was, in my case, never any discussion of policy from the other side.

What we saw in the Kavanaugh hearings is exactly why I will never again enter the political field. Been there, done that. It is clear as day why good people do not run for office even when they are the absolute best for the job. Why on earth would any self-respecting person subject themselves and their family to the vitriol and attacks we all witnessed.

And is there anyone that has not been accused of doing something they didn’t commit? Proving a negative is impossible. A person can yell from the rooftops all day long that they did not do something. Our legal system recognizes this and makes the state prove that a person did do something, not the opposite because proving a negative, proving you did not do or say something, is almost always impossible. But when it comes to politics, these rules and logic are thrown out the window. Preconceived notions and positions are all that matters.

A Legal Perspective

I am in law school in Texas. Yes, it is a little strange at my age, but still, that is where I am. We learn law, procedures, the constitution, and professional ethics to name just a few subjects. I also have several decades of experience as a criminal investigator in several different agencies. Taking that background into account, you can probably see why the events of the past few weeks with this “hearing” have been alarming and sickening.

Something worth mentioning is that damn near every senator is, or was, a lawyer. They know better. Many of the actions taken by the senators would put their law licenses at risk. The rules of professional responsibility are very comprehensive. Dr. Ford’s lawyers, in my opinion, are in professional ethics trouble. Not giving your client all offers is a strict violation of the rules and typically results in disciplinary action. They did not let their client know about the offer to interview her in California.

Making knowingly false statements about a member of the judiciary, which Judge Kavanaugh is, opens the lawyer up to discipline, sanctions, fines, suspension, or worse. All of the lawyers on the accuser’s side have an issue with this. It is an ethical violation to bring an accusation forward in bad faith. It is very clear several of the accusations were just that and nothing more.

Then we have the attorney for Ms. Swetnick, Michael Avenatti. He should be sanctioned, perhaps even disbarred. His actions were not ethical or in the best interest of his client. He violated the rules of professional responsibility in so many ways it is hard to keep track.

Even senators’ comments that were hurled at each other would cause an issue. Republican Sen. John Cornyn said his Democratic colleagues’ behavior at the start of Brett Kavanaugh’s Supreme Court confirmation hearing would render them held “in contempt of court” in a regular court proceeding. I agree with that statement.

These “lawyers-senators-upholders of our constitution” all know the dangers of a kangaroo court which is what they tried to hold. The basic tenant of innocent before proven guilty was lost, disregarded and torn to shreds. It was a sad day for our nation, and it is not getting any better.

An Investigator’s Perspective

From an investigator’s point of view, there was never anything in the accusations to allow a real investigation to go forward much less bring any charge. If I took the type of information that was presented here to a prosecutor, I would be laughed out of the office, and a phone call would most likely be made to my boss advising them not to allow me near investigations again. There was nothing to work with, at all. No evidence, no corroboration. Couple that with no first-hand witnesses and it does not make for a criminal charge or any charge for that matter. The witnesses were less than helpful if you were trying to make a case against Kavanaugh.

The witnesses either did not know of anything, did not remember the alleged events, or flatly denied the incident ever happened. How as an investigator do you move forward? Add to those gigantic red flags, that you don’t even have a date, time, or place where the event was supposed to have happenedthe investigation is dead on arrival.

Almost all the “evidence” was something someone heard from someone whom they can’t remember. Or something they think they heard about. It was worse than the telephone game we used to play when we were kids, but this telephone game had colossal repercussions. Everything was hearsay or hearsay within hearsay. None of this would have ever come into court as evidence in any form of hearing.

What you did have was a compelling witness that sounded sincere and probably wholeheartedly believed what they are saying. On the other side, you have another compelling witness that denies anything of the sort and actively and forcefully professed innocence. The witnesses seem to weigh in favor of the event not happening the way it was portrayed, if at all. So where is an investigator to go now?

Where you go is to the law and to everything we all know, whether an investigator, a lawyer, or just a living breathing human being. You know that we in the U.S. do not convict people on rumor. We do not destroy people’s lives on accusations. That is unless you are a politician only interested in your position and not the truth or ethics or what is right.

It’s All About Power

Never forget these hearings are about power and control. The appointment of Brett Kavanaugh shifts the leanings of the Supreme Court to the conservative side for decades. With Brett Kavanaugh on the bench, the Justices line up as four liberals and five conservatives. And never forget this was also about the next appointment. A second Trump term means another Supreme Court appointment. Justice Ginsberg, the very liberal Justice, will be the next to go. Can you imagine that? Three appointments by President Trump and a 6-3 court. That is really what these hearings are about when you cut through all the rhetoric.

A Personal Challenge

I have one last statement to make. Actually, call it a challenge. Put yourself in the place of someone accused of heinous crimes, terrible things that destroy decades of good work and rips your reputation to pieces. Put yourself in that place and then ask yourself: Was this fair? If you were one of those cheering the way things went and were carrying the proverbial pitchfork ready to convict Brett Kavanaugh, how would you feel if you were on the other end, and the accusations against you were not true? Would you still think it was correct?

These hearings are worse than the Red Scare hearings back in the Joe McCarthy days. This is guilty by political party. Guilty by gender. Guilty because of a president winning an election and the other party using these hearings to fight against him, destroying everyone involved in their wake, accuser and accused alike.

Ask yourself: Was it fair? Take off your elephant or donkey clothes and answer the question like a nonpartisan American. The answer should be obvious, and you are lying to yourself if you can’t see it.

Wait, you are lying to yourself? Can you prove you have never lied to yourself?

Let’s put you on trial for that.

I remember a general who was the best of the best, say: “Are we doing things right and are we doing the right thing.”  Looking at what has happened we have failed in that regard, miserably.

The opinions expressed here by contributors are their own and are not the view of OpsLens which seeks to provide a platform for experience-driven commentary on today's trending headlines in the U.S. and around the world. Have a different opinion or something more to add on this topic? Contact us for guidelines on submitting your own experience-driven commentary.
Jon Harris

Jon Harris is a former Army NCO, Sergeant Morales Club member, civilian law enforcement officer, and defense contractor with over 30 years in the law enforcement community. He is published in Army Trainer Magazine, authored regular columns in several newspapers, and is the author of the Cold War novel Breakpoint. His adventures as a security contractor in Afghanistan and Iraq can be found on www.dispatchfromdownrange.com. He holds a B.S. in Government and Politics and an M.S. in Criminal Justice and is currently completing his Juris Doctor degree.

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