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Herbert London: Due Process Circa 2018

In defending an aide accused of wife beating, President Trump asked, “Is there no such thing any longer as Due Process?” Alas, without defending all such claims, the president has a point that allegation often translates into culpability without an adherence to due process.

It is fair to say that without due process, arbitrary judgment would prevail.  The presumption behind this legal provision is that the state must respect the legal rights of the individual and guarantee that no accused is punished without an orderly and adequate procedure that is applicable uniformly in all cases.

With an epidemic of sexual harassment cases, due process is very often honored only in the breach. What this means, of course, is that the legal justification for punishment is dubious, even when warranted. British legal precedent passed this provision on to the New World, where it has been refined and ensconced. However, for many who have been victimized, legal machinery works too slowly and cumbersomely to generate the justice being sought.

Yet it would be a monumental mistake to assume due process can be eliminated or down graded. Kangaroo Courts relied on admission of guilt after punishment was meted out. In fact, the system of law this nation has enjoyed would be imperiled by any diminution in due process procedures.

As horrible as it is to leave crimes unpunished, it is equally harmful to destroy a person’s reputation without a hearing or a procedure of self defense. There are many recorded examples of secrecy and indirection that led to the modification of records and, the consequent reputational damage, within the FBI. Due Process is the armor against arbitrary charges and stands as the bulwark for righteous legal deliberations.

The shrill, the impatient, the angry may feel the process does not work for them, but in the long term it does work for the betterment of the nation. Totalitarian states never embrace Due Process. If they did, the power of centralized government would dissipate. The Siberian camps are a testimony against the rule of law.

Recently two jurists with very different political orientations spoke as one voice when it came to Due Process. Without it, they noted, America would be a very different place. Despite the chicanery in our history and in the present, Due Process continues to exert a powerful force for rationally conceived judgment. No one accused of a crime should remain defenseless.

Many women have soured on the president for his seemingly insensitive remarks about sexual harassment. In reality, the president is engaged in a willful defense of Due Process. After all, it is axiomatic to note that the Fifth Amendment states unequivocally that life, liberty and property cannot be denied without due process of law. Curiously one might make the argument that the president himself has been subject to real and unsubstantiated claims without an appropriate mechanism for his defense. Of course, he is in a special category in which almost any charge is permitted.

Nonetheless, we are at a crossroads on a matter fundamental to fair play and legal conformity. To diminish Due Process would be to diminish America. It’s time to set the record straight by stating the obvious.

Herbert London is President of the London Center for Policy Research, a senior fellow at the Manhattan Institute and author of the book The Transformational Decade (University Press of America). You can read all of Herb London’s commentaries at www.londoncenter.org

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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