The 49ers are in a thorny situation with starting DE Ray McDonald, who has played the first two games despite an ongoing investigation into accusations he assaulted his pregnant fiancée. But McDonald has not been charged, and to Jim Harbaugh, that's enough. "We're not going to flinch based on public speculation," the Niners coach said yesterday.

There have been increasing calls for the 49ers to bench McDonald, with the highest-profile coming on Sunday: former San Francisco mayor and current Lt. Gov. Gavin Newsom and his wife, filmmaker Jennifer Siebel Newsom, released a statement that allowing McDonald to play "sends a troubling message to our community and especially our children that 'zero tolerance' are empty words, not real actions."

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And few have given more lip service to zero tolerance than Harbaugh. In his first statement after McDonald's arrest on suspicion of felony domestic abuse, Harbaugh said quite clearly that there is no place on his team for abusers. "If someone physically abuses a woman and/or physically or mentally abuses or hurts a child," Harbaugh said, "then there's no understanding." He reiterated those remarks last week.

But Harbaugh has given equal time to discussing due process, repeatedly stating that he won't sit McDonald while the legal process plays out. At his press conference yesterday, Harbaugh was adamant.

“You’ve seen there’s been a lot of public speculation and people weighing in with their opinion whether it’s a public figure or people through social media,” Harbaugh said. “Our response would be: We have two principles at play here. One is respect for due process. And we’re not going to flinch, based on public speculation.”

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Harbaugh's respect for the legal process and his unwillingness to abandon a player to score PR points are probably admirable in the abstract. The problem is that there is more than just "public speculation" involved here.

Police were called to McDonald's home—not for the first time—on Aug. 31, when he was celebrating his birthday at a party attended by teammates. Police observed bruises on the neck and arms of McDonald's 10-weeks-pregnant fiancĂ©e, and, citing those "visible injuries," they arrested and booked McDonald for "inflicting injury on a spouse or cohabitant," a felony. McDonald made bail that morning. San Jose PD has not yet presented its case to the DA's office, which will make the decision whether to bring charges.

A court hearing scheduled for yesterday was postponed, but all indications are that SJPD will turn over the case to prosecutors soon, possibly by the end of the week.

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McDonald's case is different from all the others tearing the NFL apart these days, the most important difference being the stage of the legal process it's reached.

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Harbaugh says McDonald deserves due process, a legal term that has no application in a private setting like an NFL team other than as a guideline management can choose to invoke when it suits them. (The Vikings have cut three players in the past two years after they were arrested, but before they were charged. Those players were nowhere near as talented as Adrian Peterson.)

The cost-benefit analysis for the 49ers is pretty simple. By keeping McDonald active, the 49ers afford a valued employee the benefit of the doubt, and make their team better. But in doing so, they risk having information subsequently come out that portrays them as sheltering or covering for potentially odious crimes. Ask the Ravens how initially standing behind Ray Rice paid off for them, and come back in a few weeks to check on the Vikings.

The story here is how badly the NFL has mismanaged its self-appointed brand as moral arbiter over these last few years, starting with suspending Ben Roethlisberger a week after it was announced no charges would be brought against him. That threw any deference to "due process" and any chance at consistent leaguewide policy straight out the window. Harbaugh's merely saying "let the legal process play out," but the NFL has botched things so badly that he comes across looking like the asshole.