Tuesday 13 February 2018

The White House cries crocodile tears over 'due process'

In a fascinating 180-degree turn, Donald Trump is suddenly concerned with due process and the presumption of innocence.
“Peoples lives are being shattered and destroyed by a mere allegation,” the president tweeted on Saturday. “Some are true and some are false. Some are old and some are new. There is no recovery for someone falsely accused - life and career are gone. Is there no such thing any longer as Due Process?”
This distress over lives impeded by allegations of wrongdoing is particularly fascinating coming from a man who campaigned on the promise of imprisoning his political opponent and chants of “lock her up,” despite multiple investigations of Hillary Clinton yielding no criminal offenses; Trump is also notorious for taking out full-page ads in New York newspapers demanding the death penalty for five young men accused of raping a woman in Central Park.
The ads were published before a jury of the boys’ peers had found them guilty, and Trump has refused to apologize even years after they were acquitted following their wrongful conviction. Those men’s lives were actually ruined by a failure of due process and a bloodthirsty public, and Trump had a hand in it, but they have merited nary a tweet. 
The Fifth Amendment to the United States Constitution promises that “No person shall be deprived of life, liberty or property without due process of law.” This, and the presumption of innocence, are crucial norms in the American criminal justice system.
But they don’t mean that women can’t speak about their experiences outside of a court of law, or that employers can’t make their own findings of wrongdoing and levy appropriate consequences. And indeed, no prominent publicly accused men have been killed, imprisoned or had their property confiscated by the state without civil or criminal trials.
This is crucial: “Due process” does not mean freedom from consequences absent a criminal conviction. It is a limit on state action, not private employers or the press, and it means that an accused person has a right to a fair process, and a right to defend themselves in a court of law.
None of that was compromised when Rob Porter’s ex wives spoke to the FBI about his alleged abuse, the allegations of which Porter has denied. Nor was due process compromised when journalists reported their well-documented accusations; nor is due process compromised when an employer launches their own investigation and determines that an employee’s bad behavior warrants dismissal. 
In fact, employees who are terminated can themselves bring civil actions against their employer if they believe the termination was wrongful. Doing so, though, would open them up to discovery related to the underlying claim – lawyers would be able to dig into the veracity and the details surrounding the cause for their firing.
The same is true for making false accusations; in some cases that’s a crime, and in others, the falsely accused can sue for damages. But those suits, too, involve digging into the claim itself, and lots of airing of dirty laundry.
Men like Porter (who, for the record, resigned) seem to not want to open themselves up to that kind of full investigation. Certainly that’s their right, and we shouldn’t impute guilt from an individual’s hesitance to bring a lawsuit, but it is a count against the claim that, as Trump put it, “There is no recovery for someone falsely accused.” There are very clear channels for recovery for someone who is falsely accused.
Nor is it the case that men’s lives are being ruined by accusations of sexual harassment, assault, or domestic violence. Donald Trump should know: he is sitting in the White House despite being accused of all three.
Two dozen women have accused him of assault. In their divorce proceedings, his ex wife Ivana detailed a brutal attack wherein Trump allegedly tore our clumps of her hair because his own scalp surgery left him in pain and then raped her (she has since walked back the rape claim). 
Trump isn’t the only high-profile man whose career has thrived despite accusations of harming women. Steve Bannon was hired into the Trump administration despite being charged with domestic violence (the charges were later dropped due to witness unavailability), and his departure had nothing to do with those claims.
Rob Porter, whose resignation seemed to spur Trump’s tweet, was also hired into the Trump White House despite the allegations of abuse and his difficultly in getting a permanent security clearance. That he’s only paying a professional penalty now, in the face of multiple women leveling accusations (one armed with a photo of her blackened eye, the other with a protective order), hardly suggests that his career and life was been ruined by unfounded allegations. To the contrary, leaders in the Mormon Church discouraged Porter’s wives from coming forward, lest they hurt his career prospects.
What these stories tell us is the degree to which men can hurt women and suffer virtually no penalties, and certainly not criminal ones. Look at the long list of men recently accused not just of harassment, but of assault and intimate partner violence, from Rob Porter to Harvey Weinstein: how many spent a day in jail? How many were instead actively protected by their friends, colleagues, lawyers and churches? 
That doesn’t mean that we should compromise legal due process norms, or that due process shouldn’t also be a social concept – that is, any media outlet reporting on accusations of harassment, assault or violence should of course do their best to verify and substantiate those claims; employers have an obligation to thoroughly investigate before taking action against an accused employee.
It’s fascinating, though, too observe that the concept of “innocent until proven guilty” only matters to men like Trump when the accused are his white male friends alleged to have abused women; and that to men like Trump, due process is less a legal concept than a promise that he and men like him should be fully insulated from criticism and professional consequences. 
To be fair, for Trump’s entire life, he has been largely insulated from consequences, and has been free to behave as badly as he pleases and still improbably fail up to the highest office in the land. If he’s concerned about rank injustice in the United States, he could probably start there. 

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