By Jonathan
Turley
March 02, 2021 "Information
Clearing House" -
In 2012, Attorney
General Eric Holder appeared before at Northwestern
University Law School to announce President Obama’s
“kill list” policy, under which he reserved the
right to unilaterally order the death of any
American deemed an imminent threat. After all,
Holder explained, “the Constitution guarantees due
process, not judicial process.” The response was as
chilling as the message: The audienc e of judges,
lawyers and law students applauded an attorney
general who just told them that any of them could be
killed tomorrow on the president’s order.
Some of us
denounced the "kill
list" policy,
which foreshadowed what has become a campaign
against due process. In our hair-triggered culture
of Twitter attacks and “canceling” opponents, due
process is treated as hopelessly arcane and
inconvenient. Our political discourse must now be
tweet-worthy — less than 280 words — and delivered
in a news cycle measured in minutes.
Due process, like
free speech, is rarely valued until its loss becomes
personal. Take Gov.
Andrew Cuomo (D-N.Y.). Cuomo advanced his
political career by positioning himself at the front
of every mob pursuing political rivals, as during
Brett Kavanaugh’s confirmation hearing. Before
hearing the defense of now-Justice Kavanaugh, Cuomo
described the allegations against him by Christine
Blasey Ford as presumptively true. He not only
effectively called Kavanaugh a rapist, without any
due process, but demanded that Kavanaugh take a
polygraph as a condition to be believed.
Cuomo was not
alone. Many
Democratic leaders
insisted that “women must be believed”
when raising sexual harassment allegations and
declared Kavanaugh guilty before hearing any
testimony. Rep. Alexandria Ocasio-Cortez (D-N.Y.)
dismissed due process concerns for Kavanaugh,
adding: “When we talk about … due process and
justice, it must focus on the victim.” Sen. Mazie
Hirono (D-Hawaii)
said Kavanaugh
was not entitled to a presumption of innocence and
that men should
“just shut up”
and accept the allegations.
Last year, when
Lindsey Boylan’s
allegations
went public, I
wrote a column
asking if Cuomo would presume himself guilty, absent
a polygraph. Now, after Boylan
added details
of Cuomo’s alleged kissing and propositioning her,
many are struggling with his (and their) prior
positions against due process. While CNN, MSNBC and
other networks blacked-out the story or barely
covered it, others — including many on the right —
have declared Cuomo to be guilty and dangerous.
Cuomo deserves due
process, despite loudly denying it for others.
Simply because Boylan made the allegations is not
proof of guilt. Both sides have a right to be heard
— not a right to be believed solely on their word.
Due process allows us to determine who is a victim —
not, as AOC suggested, to vindicate one party as the
declared victim.
The Biden
administration, however, is expected to build on
President Obama’s
anti-due process
policies.
During the Obama administration, universities were
pressured, on threat of losing federal funding, to
strip students of due process protections in cases
of alleged sexual assault or harassment. Schools
like Harvard initially resisted in court but quickly
caved. On many campuses today, due process is often
dismissed as a virtual claim of privilege or a
tactic to delay racial justice.
Take the
recent controversy
at Smith College in Massachusetts. In 2018, Smith
College and its president,
Kathleen McCartney,
spun into a frenzy after a student, Oumou Kanoute,
accused the school of racism in an incident with a
security officer and a lunch worker. Kanoute tweeted
how a security guard was called to interrogate her
for simply having lunch: “All I did was be black.
It’s outrageous that some people questioned my being
at Smith College and my existence overall as a woman
of color.” Some media outlets ran the allegation
without seriously questioning the underlying facts.
As discussed in a
recent New York Times
piece, an
intensive investigation disproved Kanoute’s
allegations.
However, McCartney
did not wait for an investigation; she suspended the
janitor who called campus security, and ordered
campus-wide training to deal with systemic racism.
Kanoute reportedly published the names of the
employees and one of their images, including one who
was not even involved in the incident. All of the
workers left Smith and were hounded as presumptive
racists. After the investigation cleared them and
found no racial bias, McCartney did not apologize
and declared: “I suspect many of you will conclude,
as did I, it is impossible to rule out the potential
role of implicit racial bias..
Even the ACLU
lawyer representing Kanoute dismissed any cost to
these workers from being publicly humiliated without
due process. Rahsaan Hall, racial justice director
for the ACLU of Massachusetts, said: “It’s troubling
that people are more offended by being called racist
than by the actual racism in our society.
Allegations of being racist … is not on par with the
consequences of actual racism.” In other words, the
Smith employees were not entitled to due process
because they weren’t victims. The person who made
the false allegation was the victim.
The Smith case is
not unique. Lack of due process has long been a
scourge on campuses, leading to a long list of real
victims. In 2006, Duke University lacrosse players
were accused of gang-rape; the university and the
media treated them as guilty and dangerous, despite
glaring problems with the account of the accuser
(who was
later convicted of
second-degree murder).
In the 1968 movie
“Green Berets,” John Wayne’s character, Col. Mike
Kirby, says that “out here, due process is a
bullet.” In today’s politics, due process has been
reduced more to a bullet point. For too many pundits
and politicians, the question of guilt is reduced to
how the conclusion reinforces their own identity or
agenda. Every accused, every victim, is a vehicle to
amplify a message.
Of course, as Gov.
Cuomo has learned, one can lead a mob one day only
to be pursued by the mob on the next. It would be
easy to leave him to the mob and call it poetic
justice, but that is not justice of any kind. Cuomo
should receive all of the due process he denied to
others — not because he deserves it, but because he
embodies the costs of ignoring it.
Jonathan
Turley is the Shapiro Professor of Public Interest
Law at George Washington University. You can find
his updates online
@JonathanTurley.
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