‘Tis the Season for Due Process

Dr. Malcolm Cross

‘Tis the season to investigate.  Major investigations of Donald Trump and the Bidens are in the works.  But no matter who’s investigating whom, or what outcomes we desire, we should all demand that each investigation be carried out with the most rigorous application of due process.  We must do so not only for the sake of Trump and the Bidens, but for our own sakes as well.

Attorney General Merrick Garland has appointed a special prosecutor to determine whether former President Trump broke the law in his handling of classified documents and/or by his conduct on January 6, 2021:  Did the former President Trump take from the White House documents he had no right to take?  Did he make illegal use of them?  And what role, if any, did he play in the 1/6 riot?  Did he and/or his aids help plan it?  Were his pre-riot remarks to his assembled supports protected by the First Amendment, or were they too incendiary to be so protected?  And why was the violence allowed to proceed for three hours before the forces of law and order finally suppressed it?

The Republicans who’ll take control of the U. S. House of Representatives next January are already planning various and sundry investigations into the business affairs of Hunter Biden:  Did he illegally profit from his name and connections?  What did President Biden know and when did he know it?  Did he actually help facilitate his son’s transactions?  Did he actually profit from them?  Should he be impeached?

No conceivable investigation of either Trump or the Bidens will turn out well.  Any investigation of Trump which concludes he was criminally culpable will only strengthen, if possible, his supporters’ conviction that he’s being persecuted for fighting the Deep State—the Mueller investigation and two impeachments having failed, the Deep State is at it again.  And should he be exonerated, as he was by the Mueller investigation, which concluded that there was no collusion between the 2016 Trump campaign and the Russian government, his enemies will seek yet another way to discredit him.

And any investigation of the Bidens will be seen by their supporters as a vindictive witch hunt, conducted by Republicans eager to avenge the Mueller investigation and the Trump impeachments.  Whatever evidence (if any) is produced of the Bidens’ venality or criminality will be written off as a Republican-concocted fantasy.  And any exoneration of the Bidens will be seen as a whitewash produced by RINOs (Republicans in Name Only).

Which is one of the reasons why due process is essential:  If the public can see that the targets of the investigations, whether of Trump or the Bidens, were afforded competent legal representation, the opportunities to challenge evidence against them while producing exculpatory evidence themselves, and the presumption of innocence unless guilt is proven, then some members of the public may be more accepting of the investigations’ outcomes than otherwise.  In other words, if the investigations are seen as having been conducted fairly, then their conclusions, however distasteful, may not be as widely rejected than if they’re seen as witch hunts or whitewashes.

But the application of due process for Trump and the Bidens strengthens legal protections for ourselves.  To accord anyone rights is to strengthen the precedent by which we ourselves can demand and benefit from the same rights.  But to deprive others of rights creates precedents by which we ourselves may be deprived of those rights as well.

The investigations are not merely acts of political theater designed to educate us on the alleged criminality of Washington bigwigs.  Rather, how they’re conducted will strengthen—or weaken—precedents by which We the People are granted due process should we need it.  And who does, in fact, need due process?  Anyone and everyone who ever was, or ever will be, accused of some sort of wrongdoing, whether that wrongdoing be alleged criminal behavior, or alleged workplace misbehavior, or any other type of wrongdoing, real or imagined, in any forum, public or private.  Were you a new kid accused of stealing the lunch money?  Have you ever been accused of domestic violence, or workplace harassment, or making an illegal U-turn or running a red light?  If you’ve ever been accused of anything at all, due process is necessary to get to the truth.

But it would be wrong to assume that simply because you’re entitled to due process, you’re going to get it.  For those who work in large organizations, the law weakens the due process rights of employees accused of wrong doing.  Impoverished criminal defendants may be pressured into plea agreements which further the cause of administrative efficiency in the dispensing of justice, but not necessarily the cause of justice itself. Nobody, whatever his status or circumstances, can assume he’ll automatically receive due process if accused of wrongdoing.  Those who want due process must always proactively demand and, if necessary, fight for it.

So no matter what we think of Trump and the Bidens, we must remember that they’re neither above nor beneath the law.  We must demand that whatever their partisan affiliations, whatever they may be accused of, and whatever the outcomes of their cases, they be accorded due process.  To accord them due process strengthens the precedent by which we ourselves will receive it.  By demanding due process for Trump and the Bidens, we are demanding it for ourselves, and increasing the probability that we’ll get it.

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.

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