Democrats say that Republicans focus on the process of the Trump impeachment because they are unable to defend him on the merits. Maybe. But neither major party seems to care about the fact that the procedural weaknesses of the impeachment process are the same challenges faced by blacks, Latinos, and Muslims every day by the grand jury system.
The impeachment process is the equivalent of a grand jury hearing.Â The poor people who are indicted by grand juries also get to call no witnesses and their attorneys are denied access to the grand jury room. An article in the Cornell Law Review describes the grand jury process this way:
“By traditional trial standards, a grand jury is allowed to consider a surprising, even shocking, mix of evidence. The prosecutor is not required to inform the grand jury of evidence that favors the suspect, even if that evidence is exculpatory. Jurors are allowed to consider hearsay, illegally obtained evidence, tips, rumors, or their own knowledge of the alleged crime. The Rules of Evidence do not apply, so the prosecutor can ask leading questions and pursue matters that would be considered irrelevant if presented at trial. The decision of which evidence to present is also in the prosecutor’s hands: the suspect has no right to testify in his own defense, and if he does testify, is not allowed to bring counsel with him into the grand jury room. The suspect may not put on contrary evidence, is not given access to the testimony of his accusers until the trial begins, and indeed, may not even be told he is being investigated.Â The result of these lax evidentiary standards, when combined with the prosecutor’s discretion over the presentation of the evidence, is that grand jurors hear only what the prosecution wants them to hear — the most inculpatory version of the facts possible, regardless of whether that version is based on evidence that will be considered at trial.”–Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused , 80 Cornell L. Rev. 260 (1995). http://scholarship.law.cornell.edu/clr/vol80/iss2/10.
The process is even harsher than impeachment. Whereas some of the committee hearings were criticized by Republicans for being “secret” in that not all Republican representatives were invited to the hearings, the entire grand jury process is secret, whereas the deliberations and votes of the House were broadcast on live television.
To be fair, both the impeachment and grand jury processes are meant to be preliminary screenings and not trials. They are only meant to require that some shred of a case can be made against a defendant before an actual trial begins. I here take no side on whether they serve that job well or poorly.Â I only ask where were the critics of the process used against Trump when the harsher version was used against Sami Al-Arian? Where are they as it is used right now against countless other Muslims, Latinos, Afro-Americans, and other disadvantaged groups?
Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute