The Bipartisan Threat to Due Process

Congressional and Administration Democrats are preparing new assaults on civil liberties of
those accused of sexual harassment. Republicans may try to block Democratic initiatives, but they lack
the moral stature to refute justifiable Democratic accusations of hypocrisy. Since neither our
Democratic nor our Republican “leaders” can be trusted to protect our civil liberties, We the People
must be more vigilant and demanding of our constitutionally-guaranteed protections.
Recently Senate Democrats announced their determination to once again open the Brett
Kavanaugh case. You’ll recall that in the course of his hearing before the Senate Judiciary Committee to
determine his fitness for service on the United States Supreme Court, Kavanaugh was accused of rape,
attempted rape, participating in 10 gang rapes, and indecent exposure. Senate Democrats said that
since the hearing was a “job interview” and not a criminal proceeding, Kavanaugh was not entitled to
the civil liberties which protect criminal suspects in a judicial proceeding. His accusers did not have to
prove they were right. He had to prove they were wrong.
Fortunately for Kavanaugh, the cases against him more or less imploded. A woman who
accused Kavanaugh of rape subsequently admitted she lied. The woman who claimed she witnessed
Kavanaugh organizing 10 gang rapes subsequently claimed she no longer remembered his participation
in them. A man who said a female friend had told him Kavanaugh raped her subsequently said he was
mistaken. A woman who said Kavanaugh exposed his genitalia to her also said she was so drunk she
couldn’t be certain whether Kavanaugh or anyone else actually did so. Witnesses named by a woman
claiming Kavanaugh attempted to rape her denied any knowledge of the alleged incident. Indeed, no
witness to any of the rapes or attempted rapes or anything else of which Kavanaugh was accused has
yet been found.
Nor could another incident, first alleged in 2019, be substantiated. One of the attorneys
defending Bill Clinton when he was impeached (and whom Kavanaugh helped prosecute) claimed that
when he and Kavanaugh were in college, he witnessed 2 other men grab Kavanaugh’s genitalia and rub
them in the face of another woman. This prompted Senate Democrats, including Kamala Harris, to
demand Kavanaugh’s impeachment, not withstanding the fact that the woman identified as
Kavanaugh’s alleged victim claims no recollection of the alleged incident. Again, no other witnesses
have been found to corroborate the story.
And that seems to be the problem. Democratic Senator Sheldon Whitehouse of Rhode Island,
one of Kavanaugh’s fiercest critics, is now demanding that the FBI be investigated for its failure to find
evidence to corroborate the accusations made against Kavanaugh. Whether any investigation will be
held remains to be seen. But the relentless ferocity with which Democrats, including Whitehouse and
Harris, continue to pursue Kavanaugh show their utter contempt for due process when Republicans are
accused of sex-related crimes.
The Biden Administration may also take a new initiative—or revive an old initiative—to deprive
due process to college students accused of sexual harassment. During the Obama Administration,
colleges and universities which take any form of federal aid—which includes almost all colleges and
universities in the United States—were “encouraged,” on pain of losing federal aid, to adopt rules for
adjudicating sexual harassment disputes which gave too little protection to the accused. Under Obama
era rules, for example, the same official charged with investigating complaints could also determine the
veracity of the evidence he collected. And the accused could not cross-examine his accuser since to do
so would cause the accuser too much emotional trauma. Obama’s Education Department justified these

rules, claiming that campus investigations were not criminal investigations and therefore the accused
did not need the protections afforded—or which should be afforded—to criminal suspects. The
emotional well-being of the accuser was more important than the rights of the accused.
Betsy DeVos, President Trump’s Secretary of Education until she resigned to protest the rioting
of 1/6, developed new rules intended to accord the accused in these cases more rights. Under the
DeVos rules, whoever is accused of rape or other forms of harassment has the right to confront and
cross-examine his accuser, just has defendants in criminal trials have. Moreover, he has the right to
have the case adjudicated before an independent panel. Just as the police and prosecutors in a criminal
case cannot also be judge and jury as well, investigators in campus sexual harassment cases can no
longer also judge the accused.
But President Biden has announced his determination to reverse Devos’s rules and restore those
of the Obama Administration. To that end, he has decided to reappoint to the position of Assistant
Secretary of Education for Civil Rights the woman who held the same position in the Obama
Administration and who helped develop and enforce the rules Secretary DeVos repealed and replaced.
This is by no means unexpected. After all, Joe Biden has said all female accusers should be
believed (unless of course, the woman in question is Tara Reade, the Senate staffer who said Biden once
trapped her and inserted his fingers under her dress and up her vagina).
But it should be frightening to every male on a college campus, as well as to every female who
has a male friend or relative in college whose reputation could conceivably be destroyed by accusations
against which he is not permitted to adequately defend himself. And it should at least be of interest to
every taxpayer. After all, almost all colleges and universities get some form of public aid, whether
they’re “public” or “private” schools. Tax payers should care about the uses to which their taxes are
put.
Unfortunately, while Republican policymakers are not as relentless as Democrats in trying to
dismantle basic civil liberties, they’ve heretofore shown themselves to be pathetically weak in defending
them. Few Republicans other than Betsy DeVos herself showed any recognition of the threat to civil
liberties on our college and university campuses. And while most Senate Republicans voted to confirm
Kavanaugh despite the filthy charges brought against him, few have pressed for the prosecution of those
among Kavanaugh’s accusers who either deliberately lied or conveniently suffered memory lapses when
their accusations were questioned.
Beyond that, there’s a pattern which I’ve described before but which may bear repeating.
Democrats only care about women claiming to be sexual harassment victims if Republicans are accused.
Evidence that Bill Clinton and Joe Biden harassed women may not be strong enough to find them guilty
in a court of law, but the evidence is at least as strong as the evidence produced against Brett
Kavanaugh. Yet Democrats have consistently ignored the accusations and supporting evidence against
Clinton and Biden, presumably because Clinton and Biden are Democrats. And while Republicans have
been more than willing to charge Democrats with sexual harassment, they’ve also turned a blind eye to
former President Trump’s alleged antics, and a deaf ear to his female accusers.
Ideally, both accusers and accused should be treated equally. Both accusers and accused should
be heard. The evidence presented by each side should be fairly and impartially presented and

evaluated. It’s a pity that neither our Democratic nor our Republican “leaders” can grasp this.
Therefore, since we can’t trust our “leaders,” we must be ever vigilant lest our own civil liberties be
threatened. After all, whenever one person’s rights to due process are threatened, a precedent is set by
which more threats to the rights of due process and other civil liberties of more people become more
probable.

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Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.