“Due process” is taking a beating in Washington these days.
At the least, the legal term for going by the book to preserve individual civil rights is being badly banged around in political discourse — its meaning almost totally depends on who’s speaking and whose ox is being gored.
From hearings involving Secretary of Education Betsy DeVos testifying about cuts to the civil rights arm of her department to President Trump’s renewed call for death penalties for drug dealers without regard either to effectiveness, legalities or whom he is intending to execute in pursuit of an opioids pandemic, the legal system is taking it on the chin.
The various aspects of bullying Atty. Gen. Jeff Sessions into dismissing Andrew McCabe, the former deputy director of the FBI, without public disclosure of the still-being-written Inspector General’s report that apparently lays out the justification show this disregard for appropriate legal review. Even the strange Stormy Daniels hush-money allegations are based essentially on a kind of what her lawyer calls “thuggishness” rather than any sense of due process or concern.
So too are the president’s summary dismissal of the Special Counsel investigation of Russian influence on the elections, and even Donald Trump’s weird fights with porn stars and other women help make a pattern of disregard for legal procedures and protections. The Trump administration is all for unannounced raids on undocumented workers, but does not pursue legal cases against employers; the Trump government does not want a vigorous consumer fraud division to challenge business abuses.
The president’s administration is viewing the legal process as arbitrary and important only if the law makes its political gains easier to achieve.
“Due process” came up directly during President Trump’s surprising meeting a few weeks ago with members of Congress about guns. The “surprise” was that until Trump started reworking his words and positions, the president was live on television, proudly proclaiming that as a nation, we should ignore individual “due process” to physically remove guns from individuals that he said the mental health system had identified as potentially dangerous shooters in schools.
Indeed, when Vice President Mike Pence attempted to smooth the words to put “due process” for the individual before government action, the president trampled on the idea, and said, no, court processes take too long, and the important thing is to protect schools, not “sickos.”
“Or, Mike,” he blurted. “Take the firearms first and then go to court . . . Because a lot of times, by the time you go to court, it takes so long to go to court, to get the due process procedures. I like taking the guns early. Take the guns first, go through due process second. They have so many checks and balances that you can be mentally ill and it takes you six months before you can prohibit it,” the president said.
For the moment, let’s set the gun question aside, and concentrate on the due process side of things.
In recent memory, the same President Trump said repeatedly that we should be not leaping to bad conclusions about people like Roy S. Moore, the then-candidate for Senate from Alabama, who was facing challenges from now-grown women who said he had forced himself on them in years past. Indeed, Trump’s argument was that Moore deserved “due process” in a court before accepting the allegations of the several women who eventually stepped forward.
The same President Trump has endorsed the findings of House Intelligence Committee chair Devin Nunes (R-Calif.), who criticized the FBI and Department of Justice for filing for a warrant to surveil Trump associate Carter Page before the secret FISC investigative court. Nunes claimed in a well-publicized memo (later countered by his Democratic counterpart, Rep. Adam Schiff, D-Calif.) that the use of an unsubstantiated dossier assembled by former British intelligence officer Christopher Steele paid for circuitously by a Democratic campaign lawyer, had abridged Page’s due process rights as a private citizen.
As a friend who has been studying the memos argues, you need probable cause of intelligence misconduct to get one of these secret FISA warrants. If the court relied solely or even mostly on information from the Steele dossier for the warrant, Page’s rights were abridged. Of course, that point is exactly what Nunes has argued, and that Democrats have countered. Unless the secret info is shared all around, we in the public will never know, unless it all comes out in the form of some eventual indictment through the special counsel’s operation.
In the recent dust-up over whether Rob Porter, the president’s secretary, should have been able to see classified documents without a security clearance — a clearance denied because Porter had been accused by two ex-wives and a girlfriend of physical domestic abuse — the president was clear in arguing that Porter should have undergone “due process” before being dismissed.
By contrast, immigrants facing deportation or the demands for a resignation by Sen. Al Franken, D-Minn, should have proceeded immediately without worry about “due process” concerns, in the president’s views.
In other words, sometimes “due process” matters to this president when he finds it politically advantageous, and it does not matter if it involves people he sees as foes.
Dahlia Lithwick, who writes about legal matters for Slate.com, argues, “Donald Trump has an interesting history with the notion of ‘due process’.”
She argues that he uses the phrase to protect “white buddies” under the legal gun, and otherwise ignores it. “When Donald Trump misuses legal language to manipulate law and misrepresent truth, it’s easy to see how the rule of law means nothing to him. Funnily, when he uses legal language precisely and correctly to assert that he wants to use state authority to impair the rights of gun owners, he’s actually revealing a much more potent and frightening disdain for the rule of law and the Constitution. And honestly, no more due process is necessary to understand.”
This on-again, off-again use or disdain for “due process” has been with Trump for a long time. This is the same Trump who pardoned convicted former sheriff Joe Arpaio even before his trial ended, the same Trump who threatened to jail Hillary Clinton, the same Trump who argued for the death penalty for New York’s Central Park Five before they had even been tried — and exonerated years later. Trump recently criticized Atty. Gen. Jeff Sessions for actually starting a new investigation of FBI handling of the Hillary Clinton matters — because he was turning to the department’s Inspector General rather than to a prosecutor. All of a sudden “due process” was not a concern, nor was fact-collection, investigation, or the rule of law, particularly.
Lithwick writes: “When it comes to ‘due process’, I don’t think those words mean what [Trump] thinks they mean . . . What due process rights actually mean is that the state can’t take away someone’s ‘life, liberty or property’ without adequate legal safeguards and protections. That’s what Trump was belittling — the silly ‘checks and balances’ that get in the way of confiscating guns without notice or an opportunity to be heard. When the president talks about using the force of the state to seize property or incarcerate someone without any legal recourse, he is attacking a core pillar of legal and constitutional law. The government can’t take your stuff away just because the president feels like it . . . ‘Due process’ to Trump, then, is mostly just something owed by newspapers, complaining women, or voters to his buddies.
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