I was extremely disappointed today to see Zephyr Teachout’s opinion piece in the New York Times defending Al Franken and arguing that Franken should not resign and was denied due process. I watched Ms. Teachout’s rise in the New York congressional race last year, which she lost to a Republican challenger by nine percentage points. She has written extensively, and well, on corruption in the American financial system. But I was confused by her interpretation of due process and what it means for those accused ― and those who have confessed ― to sexual harassment and assault.
I think few people would disagree with Ms. Teachout that due process is a key component of the judicial process. There are, and should be, protections for those accused of any crime. I also agree with her position that the mechanisms for reporting sexual misconduct in Congress are severely flawed, and add unnecessary obstacles to those trying to file reports. These procedures should be changed, not for the benefit of the accused, who already has access to mandatory “cooling off periods”, as if enough time will lessen the devastating impacts of sexual harassment, but for the accusers. We are both in agreement that there are fairer, more conscientious ways of tackling these pervasive issues.
I do not agree, however, with her assertion that Franken’s decision to resign was a failure of that process. Moreover, I believe it is a gross mischaracterization to state that the current standard is “off with the head of the accused, regardless of the accusation.” Does Ms. Teachout not remember the nineteen women who came forward to say the president of the United States sexually harassed them? Does the consequence of the release of the infamous Access Hollywood tape in which then-candidate Trump admitted to groping and violating women ― that consequence being his election to the highest office in our country ― seem like an instance of “off with the head of the accused”? Perhaps Roy Moore, whose penchant for preying on young girls got him banned from a shopping mall would add some nuance to Teachout’s assertion, given that he was endorsed by Republican leaders even after numerous women came forward.
As for Teachout’s comparison of her experience defending those on death row to the case against Franken? It is a comparison that is ill-suited at best and downright reprehensible at worst. Senator Franken is not being paraded to the executioner’s chair. He is a wealthy, powerful white man who will receive a sizable pension once he leaves the Senate. He admitted of his own volition that he behaved inappropriately, a statement that was not coerced out of him by an aggressive police chief or an unreliable lie detector test. If, as Teachout suggests, the rush to judgement against Franken was so hasty, why would he resign? Why would a man who had done absolutely nothing wrong, who had never acted inappropriately, quit his job after a few colleagues said he should do so? After all, Mitch McConnell and Paul Ryan asked Roy Moore to drop out of his Senate race and he didn’t take their advice. There is no massive, uncontrollable smear campaign, as Teachout insinuates, only a powerful man who was caught on film groping a woman and who likely would not have come out of his ethics investigation any cleaner.
“But we don’t know that for sure,” Teachout would argue. And she’s right. We don’t know that for sure. But what we do know for sure is that Senator Franken made a decision to resign his Senate seat, not because he took a bribe ― something Teachout probably would not have seen as such an undue rush to judgment given her feelings on the involvement of dark money in politics ― but because he groped a woman. It was a decision he made knowing full well that he would have the chance to clear his name if he decided to take it, and he chose not to.
What is deeply frustrating about Teachout’s article, and those by so many other legal scholars of late, is that it pretends the law is an unblemished, unbiased paragon of virtue. Justice is blind, except when you consider who put the blindfold on her in the first place. At worst, I believe her reading of the law as a neutral object to be one of willful ignorance; at best, it is genuine belief in its good intent. But as powerful men begin to learn that they are not immune from accountability for their misdeeds ― however slight or insignificant they might seem to the general public ― it is worth remembering who wrote those laws, who enforces them, and who rules on them. There is nothing truly due about due process when we take the blindfold off of Justice and place it over our own eyes in an attempt to believe that the law is well-intentioned. I would encourage Ms. Teachout to consider the less obvious ways that the law fails the most vulnerable citizens ― women, people of color, LGBT people, the poor ― and our willful ignorance to that painful reality.