Sunday, February 11, 2018

OMG Please Let Me Explain Due Process 101 to President Trump!

I can’t tell you how glad I am that President Trump asked a question that sparked one of my all-time favorite topics of convo: 

Constitutional law! YAASSSS QUEEEEEN.


In defending dudes accused of domestic violence and sexual assault, the President asked: “is there no such thing any longer as due process?” It’s actually a good question, so let’s discuss.

First we need to understand the constitutional origins of “due process.” I’ll do what Trump didn’t do, and go to Wikipedia:




Here’s the basic difference between traditional “procedural” due process and the more complicated "substantive" due process:



Procedural due process comes directly from the text of the constitution, whereas substantive due process has developed and evolved through Supreme Court case law over the years.

A good example of substantive due process at work is Roe v. Wade. Another is Lawrence v. Texas, a 2003 case in which SCOTUS held that the government may not criminalize intimate homosexual conduct among consenting adults. In basic terms, the Court's decisions here were grounded in a substantive due process personal autonomy/liberty theory.

But I don't think Trump was talking about substantive due process, because here is what he tweeted:





Here we can assume that Trump is referring to procedural due process, which is what most people mean when they throw around the term "due process."

In simplest terms, and as you can conclude from the above, procedural due process requires three things: (1) state action; (2) notice; and (3) an opportunity to be heard prior to the government depriving someone of life, liberty, or property.

For the people whose lives are being "shattered and destroyed by a mere allegation," we first need to ask ourselves a threshold question: was there even state action? 

The answer is likely no. 

It's hard to say for sure without knowing who exactly Trump is referring to, but given the timing of his tweet, we can assume it was White House staff secretary Rob Porter, who resigned when it was revealed that he beat up two of his wives and cold-cocked one of them in the eyeball (ALLEGEDLY). 

He wasn't fired, he resigned. So the government didn't deprive him of his job, to the extent he had a constitutional property interest in a high-level executive branch job like the one he held. He certainly was not deprived of life or liberty by law enforcement or the court system. 

So that pretty much ends the due process inquiry. But let's ask the "notice" and "opportunity to be heard" questions anyway. 

You can say Rob had "notice" of his little "problem" because his DV rap sheet was holding up his security clearance and everyone knew it, most of all him. It was not a surprise. As far as an "opportunity to be heard," there were no charges brought and certainly no trial, so, um, we don't really even get to that point, either.

As far as all of these Hollywood guys and other media executives who have fallen from grace since the Harvey Weinstein scandal broke, guess who doesn't have to comply with the due process clause of the constitution? 

MOVIE STUDIOS AND PRIVATE PUBLICATIONS, Y'ALL! 

Yes, it's true. Private companies can hire and fire whoever they want and they don't need to worry about the constitution! 

To be sure, there are usually other laws like statutes and contracts at issue that must be reviewed and adhered to in such situations. But there is no constitutional "due process" problem when a private company decides to hand the pink slip to someone accused of sexual assault. 

As far as I know, there is still such a thing as due process, so the answer to the President's question is yes, for now. 

But it’s all a bit academic, isn’t it, since none of the people Trump cares about were ever actually subject to state action such that they need to ask that question at all, much less worry about infringement of their due process rights.

The Constitution does a lot of things, but it does not protect men's reputations. There is no "DUE REPUTATION" clause in the constitution.

Full stop.



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