[DENVER, CO – January 10: State Representative Steve Lebsock during the opening day of the second session of the 71st General Assembly at the Colorado State Capitol. January 10, 2018 in Denver, Colorado. (Photo by Joe Amon/The Denver Post)]
Americans love to toss around the phrase “due process” whenever they believe an injustice or wrong has occurred in the public sphere. It has become a shorthand for an affront to basic fairness. But fairness itself is a loaded term tinged by the subjective lens through which each individual sees the world. Consequently, the vernacular version of due process has diverged dangerously from the actual legal meaning. That divergence threatens to undercut faith and trust in the entire legal system.
Just a few weeks ago, after the resignation of two White House staffers over abuse claims and allegations against a GOP mega-donor, President Donald Trump tweeted, “Peoples [sic] lives are being shattered and destroyed by a mere allegation. Some are true and some are false … There is no recovery for someone falsely accused — life and career are gone. Is there no such thing any longer as Due Process?”
Uttered by a prominent man facing multiple abuse allegations of his own, Trump’s appeal to due process echoes the rallying cry of many (mostly) men in the same circumstance. It is the safety net they hope will break their fall.
Here in Colorado, Democratic state Rep. Steve Lebsock made multiple appeals for due process following another legislator’s accusation of sexual impropriety by Lebsock. He begged for the Colorado speaker of the house to “grant me the due process all Americans deserve in situations like mine,” asserted that “respecting due process is imperative,” and claimed “All I am asking for is due process.”
The problem for Trump, Lebsock, and others rallying behind the same banner is that the legal construct of due process was never designed to be a shield against public opinion or private action. Instead, it is a protection for individuals against direct government action. Dating back to the English Magna Carta, due process buttresses ordinary citizens from the crushing weight their government may bear in a legal proceeding, not the public square. That is an inconvenient detail they hope to change.
Fundamentally, due process begins with “procedural due process” — the formal procedures and acts to which the government must abide. Usually spelled out in statute or regulation, these processes help to ensure an unbiased and fair opportunity for defense. For example, these requirements include notice of charges and their grounds, right to present evidence, and an opportunity to present counter-arguments. Each provides its own protection against unjust government action and taken together create a counter-balance to government abuse.
In the United States, our judiciary has also evolved to employ “substantive due process.” Recognizing that the legislative and executive branches of government could re-write procedural due process to ensure outcomes, courts have asserted an authority to strike down laws or agency action that threaten the fundamental rights of individuals. Much more nebulous and arguably a thumb on the scale of systematic checks and balances, substantive due process is a source of regular controversy. It effectively shifts the idea of fairness from processes and procedures to outcomes.
It is from that platform that people like Trump and Lebsock make the leap to their interpretation. Because they view outcomes as pre-determined in the public’s perception, they claim a violation of due process. Never mind the precept that trials aren’t conducted in the media, the position of Trump and Lebsock is that trials are only conducted in the media.
