Whatever we may think of Donald Trump, or the content of the indictment against him, or its impact on his future presidential prospects, we must demand he be accorded the full protections of due process, if not for his sake, then for our own.
It would not be wise to speculate too much on the indictment’s meaning, since as of this writing its content has not yet been disclosed. But former House Speaker Nancy Pelosi made a singularly stupid comment which deserves rebuttal by all who believe in civil liberties, no matter what they think of Donald Trump himself. She said, “The Grand Jury has acted upon the facts and the law. No one is above the law, and everyone has the right to a trial to prove innocence. Hopefully, the former President will peacefully respect the system, which grants him that right.”
In fact, whether the Grand Jury has actually “acted upon the facts and the law” cannot be determined until after the indictment is unsealed later this week. But neither Trump nor anyone else is under the slightest obligation to respect “the system” as Congresswoman Pelosi describes it—one in which “everyone has the right to a trial to prove innocence.” Such a system is more likely to be found in communist, fascist, and other totalitarian political systems, where accusations are considered signs of guilt and where the opportunity to “prove innocence” may exist in theory, but almost never in fact. Such a system deserves nothing but contempt in a free society, and the imposition of any such system should be vigorously resisted by whatever means may be necessary.
What Congresswoman Pelosi apparently forgot is that our state and federal legal systems, insofar as they deal with matters of criminal law, are based on the theory that one accused of a crime is nonetheless considered innocent unless and until he’s proven guilty, that the sole burden of proving anything rests with the prosecution, and that the defendant’s obligation to prove anything at all is zero. Of course, a defendant’s ability to actually prove his innocence will immeasurably help him, but he need only raise reasonable doubt about the prosecution’s case to be entitled to an acquittal.
Admittedly, there can be a wide gulf between the ideal of “innocence until proof of guilt” (as opposed to “guilt until proof of innocence”) and the degree to which it’s actually practiced. One need not be a “Progressive” to recognize one of the great shames of our criminal justice system—the pressure brought by prosecutors on indigent defendants represented by overworked public defenders to plead guilty to lesser charges to avoid risking conviction on greater charges. The concept of “innocence until proof of guilt” must become a principle applied to everyone without regard to race, sex, economic status, or any other extraneous factor. To the greatest extent possible, one’s innocence or guilt must be determined by “the facts and the law” and not by one’s inability to mount a defense because of one’s economic condition.
Of course, we need not worry about the quality of representation Trump can purchase but we must nonetheless be certain he’s treated with the fairness due process demands. As I argued on behalf of due process for Andrew Cuomo, to weaken the legal safeguards for anyone sets a precedent by which the safeguards for everyone can be endangered. Yesterday, Cuomo’s right to due process was questioned by the Me, Too movement (while the rights of his accusers were questioned by the Time’s Up movement). Today, Trump’s due process rights have been called into question. Tomorrow, one of us may face legal problems following the weakening of safeguards which should be our birthrights.
Those supporting Trump’s indictment like to preach that “Nobody’s above the law.” Fair enough. But nobody’s beneath the law either. At any given time in our criminal justice system the way we treat defendants sets precedents, for good or ill, that can someday be used for or against us as well. What happens to Trump in the weeks, months, and years ahead may help determine what may someday happen ourselves as well. We must therefore demand he accorded full due process, if not for his sake, then for ours.
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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