Enough of The “Yeah, But” Exception To An Accused’s Constitutional Rights

“Yeah, but he’s a….” Insert Republican, Democrat, slimeball, and any other pejorative that society conveniently labels the criminally accused as a justification for conducting a public lynching of the unfortunate.

I call it the “Yeah, but” exception to the Constitution. I also call shame on anyone who uses it to justify a bloodthirsty cry for an “ends justifies the means” approach to dealing with publicized accusations of criminal conduct.

With multiple media outlets breaking the story that Tara Reade filed a criminal complaint alleging sexual assault against the presumptive Democratic presidential nominee, Joe Biden, the “Yea, but” exception is already on full display. The nomination process of Justice Brett Kavanaugh – punctuated by Dr. Christine Blasey Ford’s accusation of sexual assault and rape – remains fresh in the minds of many Americans. Joe Biden did himself no favors during Justice Kavanaugh’s nomination with the following comments:

For a woman to come forward in the glaring lights of focus, nationally, you’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts, whether or not it’s been made worse or better over time.

What should happen is the woman should be given the benefit of the doubt and not be, you know, abused again by the system. I hope that they understand what courage it takes for someone to come forward and relive what they believe happened to them and let them state it, but treat her with respect.

Many of my friends – staunch Republicans – openly rejoice that a Democrat will have to face the same music that Justice Kavanaugh did.  They openly argue that the same logic that applied during Justice Kavanaugh’s ordeal should apply to Joe Biden – an argument not entirely unsupported by Joe Biden’s own words. None of their arguments stand on any principled foundation, and a careful analysis reveals their total reliance on the “Yeah, but” exception to the Constitution.

I get that a candidate or a nominee for public office places themselves in a uniquely different situation than a criminal defendant. Because of the nature of the public trust, a different standard of proof may be applicable, and an affirmative burden of proof may lie with the candidate or the nominee. That different burden of proof, however, does not take the form of proving innocence from accusations of criminal behavior, but rather of proving fitness for public office based on whatever so-called standards that voters or their representatives choose to fashion. Carrying that affirmative burden of proof may require the affirmative rebuttal of the accusation to prove adequate fitness for office, but it certainly does not require the accused to prove his actual innocence of a crime.

Put differently, a candidate or a nominee for public office may very well bear the burden of proving their fitness for office beyond a reasonable doubt. Accusers such as Dr. Ford or Tara Reade may only need to cast reasonable doubt on the candidate’s or the nominee’s fitness for office to merit the electorate’s disapprobation.

The lines blur when the reasonable doubt cast comes in the form of an accusation of criminal conduct. An allegation of sexual assault is, indeed, a serious one, appealing to every residual piece of morality that our society still possesses. As I suspect that it does for many Americans, the mere allegation certainly makes me think twice about voting for someone for public office, and it often stirs my curiosity for more information. However, my moral sympathies end when the allegation is credited as gospel and hailed as the only verdict necessary to lock someone up and throw away the key.

Every person subject to this nation’s laws is entitled to due process under the Fifth and Fourteenth Amendments, and a fundamental principle of due process is the presumption of innocence that every criminal defendant enjoys. An allegation is just an accusation, and, until a jury determines that it has been proven beyond a reasonable doubt, the Constitution instructs that the accused remains innocent.

That right protects everyone without exception in every circumstance. Republican. Democrat. Slimeballs. Evil people.

The perceived or actual denial of that right to one person based on political ideology, or any other factor, does not justify the denial of that right to another person to get even. Yes, America. You still believe in lynch mob, old-fashioned retribution – Archie Bunker style – and I do not deny the natural human urge to seek retribution. I do, however, reject retribution at the cost of constitutional rights.

Most folks can recognize the rights guaranteed by the Fifth and Fourteenth Amendments’ Due Process Clauses. Those rights become inconvenient obstacles to retribution. Hence, the “yeah” aspect of the “Yeah, but…” exception – a tacit acknowledgment that these rights have some vague controlling force, but a refusal to carefully consider their application because the “but” element creates such “exceptional circumstances” as to justify their suspension.

These rights endure the heinous, the evil, and ideology. You may be the next one in need of them when you are publicly tried, convicted, and condemned before you ever confront the accusations against you.

In closing, candor requires me to disclose that, until about three weeks ago, I was a registered Republican voter for primary voting purposes even though I adamantly declined to self-identify as being affiliated with a political party since I turned eighteen. Now totally repulsed by being affiliated with a political party, I am a registered independent. Joe Biden certainly is not getting my vote for president, but I absolutely oppose the railroading that he will receive just as I did for Justice Kavanaugh. I need  a lot more than the “yeah, but” exception and a bare allegation of criminal conduct unchallenged in criminal court to call for him to be punished. In my eyes, he is an innocent man and will remain so until a jury fairly convicts him.

Cameron L. Atkinson

Cameron Atkinson is a Christian, a published constitutional scholar, a trial and appellate lawyer, and a general hell-raiser. He has received national recognition for his victories in civil rights cases, especially in First Amendment cases. Attorney Atkinson stands out for his written advocacy, and he has taken the lead role in briefing cases to the United States Supreme Court, the United States Court of Appeals for the Second Circuit, the Connecticut Supreme Court, the Connecticut Appellate Court, and multiple New York appellate courts. Attorney Atkinson has successfully represented clients facing criminal charges, including successfully arguing for the reversal of a sexual assault conviction before the Connecticut Supreme Court. He will accept requests for public speaking engagements on a case-by-case basis.

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1 Response

  1. December 5, 2020

    […] awhile ago, I penned a piece calling out our nation’s reliance on the “yeah, but” exception. I now watch President Trump and his lawyers fiercely contesting the outcome of the 2020 […]

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