Anil Anand

Since judges exist for the essential goal of delivering justice to fellow citizens, a vigorous ethical commitment should be a key part of their professional code.

Spanish moral philosopher Adela Cortina notes that corruption is encouraged by the weakening of the internal good.

The world had front-row seats to the judicial proceedings in the second impeachment of former United States President Donald Trump recently. There will be countless assessments of the trial, and there may be just as many opinions on the efficacy and effectiveness of the proceedings.

The importance of the post-trial deliberations shouldn’t be underestimated, not only for the political consequences but also for the impact on the average observer’s perception of the legitimacy of the social contract between them and the institutions of justice.

It would be easy for those of us outside the U.S. to dismiss the trial as just another voyeuristic pastime during COVID-19.

That would be a mistake.

These proceedings impacted the integrity of democracy, the legitimacy of governance, and institutions of human rights and justice. They draw parallels, provide examples, and set precedents that will impact faith in the systems of civil society and justice. Or, as Cortina puts it, the belief that the internal good justifies the existence of such institutions and professions.

The Canadian Judicial Council’s Ethical Principles for Judges states that: “Judges should also recognize that not everyone is familiar with these concepts and their impact on judicial responsibilities. Public education with respect to the judiciary and judicial independence thus becomes an important function, for misunderstanding can undermine public confidence in the judiciary.”

Ethical Principles for Judges is a reflection of our expectations of judges and our judicial system. But most people will have observed corruption and adulteration of the essential goal of delivering justice during the impeachment trial.

The trial represented a mockery of the internal good expected by an ordinary observer. The rules were vague, negotiable and inconsistent. And observers of these proceedings, reflected through the broad spectrum of the media, will have found them speculative and lacking clarity.

The chair of the trial was a Democratic senator who voted to move forward with it. He’s not the chief justice of the U.S. Supreme Court. But he has been an outspoken critic of Trump.

The case the House managers (prosecutors) presented was based in large part on the experiences (evidence) of the jurors, Democrats and Republicans. This would be like choosing a jury where the accused’s fate is to be determined by 12 jurors who witnessed the incident for which the accused is brought before the bench, and the adjudicator has already told the jurors, the accused and the public that the accused is guilty before commencing the proceedings.

Even this may somehow be accepted and explained if we were to believe that the adjudicator and the jurors are capable of distancing themselves from their preferences, biases and previous opinions to dispassionately execute their duties as impartial jurists under oath.

Instead, we witnessed jurors who have made the sanctity of the oath worthless. They showed that their minds were made up even after taking the oath declaring otherwise. Many didn’t even pay attention to the evidence presented or simply left the trial chamber. Some senators, despite being jurists, even met with defence counsel to collaborate in the trial process.

The case presented was, if nothing else, prima facie. This was confirmed by the previous Senate minority leader, who voted against impeachment and then later confirmed Trump’s guilt.

None of these absurdities fits any legitimate expectation of a legal proceeding, let alone a trial of the most powerful person on the planet.

Canadians,  like people in any legitimate democracy, expect that a judge must be, and be seen to be, free to decide honestly and impartially, on the basis of the law and the evidence. That must happen without external pressure, influence or interference.

Canadians expect that a judge’s first qualification is the ability to make independent and impartial decisions.

Canadians also expect that a judge’s duty is to apply the law as they understand it, without fear or favour, and without regard to whether the decision is popular. It’s a cornerstone of the rule of law. They expect that judges reject any improper attempts by litigants, politicians, officials or others to influence their decisions, and that judges take care not to raise concerns about their independence.

The impeachment trial met none of these expectations.

The failure here was not of the participants, but rather in the American system. That system makes it impossible to effect an impartial and independent trial of the highest office in that nation.

The impeachment proceedings laid bare the limitations of a system incapable of upholding and ensuring the independence, shared responsibility, and accountability of the executive, legislative and judiciary branches. By failing to do so, the proceedings made a mockery of the impeachment, the legitimacy of the judicial system, and of the role and scope of the three pillars of democratic governance in the United States.

The rule of law and the judiciary’s independence rely primarily on public confidence. Lapses and questionable conduct by judges tend to erode that confidence. Whether the observer was a Trump sympathizer or wanted to see him impeached, this process handed everyone a loss.

The process has laid bare the system’s limitations and the inherent partisanship. The administration of the oath has been diminished. Public acceptance of, and support for, court decisions depends upon public confidence in the system’s integrity; this integrity has been damaged.

Canadians, just like people in any legitimate democracy, expect judges to make every effort to ensure that their conduct is above reproach in the view of reasonable, fair-minded and informed persons. They also expect judges to encourage and support the same efforts by their colleagues. Otherwise, the judiciary loses public confidence.

What we observed in the impeachment hearings, sadly, was more theatrical reality show than a solemn proceeding of justice. It was a performance for the court of public opinion rather than the pursuit of justice in law.

In the end, the people are the victims. But the fact that this charade was played out before the court of public opinion may provide hope. It helped demonstrate that the social reform movement in the U.S. has much more work to do, from the grassroots right up to the Senate.

And in Canada and other democracies, the trial provided a warning: we can’t be complacent about the administration of justice.

Anil Anand is a research associate with the Frontier Centre for Public Policy.

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