Sexual harassment allegations and mob justice: Senator Al Franken and Garrison Keillor

For a critique of the violation of due process norms and the rule of law in the current hysteria over alleged sexual harassment of women by men, with particular reference to Senator Al Franken and Garrison Keillor, see

Absurdo, “Sexual harrassment hysteria and mob justice: Garrison Keillor and Al Franken denied due process,” ABSURADARAMA! Tales of the Absurd in this Mad, Mad World, December 7, 2017.

Excerpts follow:

Now, the raging hysteria over sexual harrassment of women by men has engulfed Democratic senators who are calling upon Franken to resign. He may do so on Thursday, December 7.

 

Yet he should not, for he is uniquely situated to act to bring the current wave of hysteria to a halt. He has a unique opportunity to give a civics lesson to Democrats, Republicans, and the nation as a whole. To do so will require great courage, a new profile in courage, to stand against the winds of outrage that threaten to blow him down.

If we believe in due process, Franken should have the right to know the acts of which he is accused, and the identity of his accuser. He should have the right to confront his accuser, and to cross-examine his accuser in order to allow an impartial decision-maker to arrive at the truth.

Moreover, we must ask whether any proposed punishment fits the offense, or crime if there was one. A fundamental tenet of our legal system is that no one shall be punished for actions that did not constitute a crime prior to their occurrence (nulla poena sine legge–“No penalty without a law”).

The Constitution provides for the election of a U.S. senator to a six-year term of office. It does not provide that he may be hounded from office by other senators caught up in a wave of hysteria without the benefit of a fair hearing and due process of law. Indeed, the Constitution confers the right on the citizens of Minnesota to elect their Senator, and no extra-constitutional procedure not based on due process should be allowed to replace their opinions expressed at the ballot box.

The author asks who is orchestrating the hysteria over these allegations, and stresses the importance of observing fairness, impartiality and due process in assessing and dealing with any accusations of sexual harassment or inappropriate behavior. He or she writes,

What should happen is that Franken should not resign because of the these unproven allegations. Rather, they should be investigated instead of being taken as true and at face value. Memories are colored by emotion and time. Both sides and the context in which alleged behavior took place should be taken into account. Serious consideration must be given to the nature of the alleged behavior, and if Franken is found to be responsible, with inadmissible intent, then he should definitely be held accountable. That can happen through an investigation and recommendation by the Senate Ethics Committee, or a special committee can be established for that purpose.

Franken should stand his ground pending an investigation in order to break the fury of the hysteria that is whipping through the country. Why the rush to judgment, if not to maintain the hysteria of the mob?

Why have the Democrats formed a circular firing squad over this issue?

Donald Trump and Steve Bannon will be laughing all the way to the polls. Trump brags of kissing women without their permission and grabbing their p____y, but suffers no consequences. Roy Moore is running neck and neck with the Democrat in the Senate race in Alabama, and may indeed win. Meanwhile, Democratic leaders fall by the wayside. No one asks who might be orchestrating the hysteria, which seems to weaken trust in the media while taking down leading critics of Trump. Could the Russians be whipping up emotions on the two sides? Who is orchestrating these campaigns? What role is social media playing?

The pay-off for Trump and Bannon is twofold. Not only do they see the media and the Democrats weakened, but by opposing the hysteria of the Democrats they play to their base in opposing what they characterize as extreme political correctness on the other side.

The arguments set forth above represent a simple call to reason. Men who are found, after a fair process of inquiry, to be guilty of alleged behavior which is illegal or offensive, should be held to account. But the “crimes” or offensive behavior they have committed must be articulated, and if they are punished the punishment should fit the crime or the offense.

That is, after all, why we have a legal system and norms requiring a fair process of inquiry, and judgment by an impartial decision-maker. This is simply due process and the rule of law. We would be fooling ourselves if we thought the legal system can be bypassed on this single issue, and could not be bypassed by Trump and his supporters on another.

See A Man for All Seasons (1966):

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
–Attributed to Sir Thomas Moore, in the film A Man for All Seasons (1966)

Let’s take time to sort all of this out. To do so, let us stop the mob at the jailhouse door, and avoid the excesses of mob justice such as those that were committed in the French Revolution, during the Red Scare in 1919-1920, by the Klu Klux Klan in the South, and during the McCarthy period in the early 1950’s.

Absurdo

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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