Let’s be clear: There is no due process right to not have people make jokes about you. There is no due process right to have strangers think you aren’t a rapist until you’ve been convicted. (Based on the reporting I’ve read, I believe Weinstein is a rapist. Sue me, Harvey.) Rather, due process is a constitutional guarantee that requires the government to provide certain procedures when it deprives a person of liberty or property. And the terms of that guarantee depend on what the government seeks to take away. As a general matter, when stakes are high — as in a criminal trial in which a prison sentence is one possible outcome — procedural protections are at their most robust. When the stakes are lower — involving a fine, say, or the demotion of a public employee — the process might be less rigorous. But generally speaking, the accused should get notice of the accusation and the opportunity to tell his or her side of the story, sometimes before the deprivation occurs, sometimes after.
Weinstein is not alone in thinking due process means no one can be mad at you unless a judge has donned robes. The White House has refused to comply with subpoenas for records and testimony necessary for the impeachment inquiry. Its reasoning, laid out in a memo by Pat A. Cipollone, counsel to the president, is that the impeachment investigation fails to provide the procedural protections of a criminal trial, including the opportunity for President Trump to question witnesses and review evidence. Last week, a group of Republicans stormed a closed congressional hearing to protest the House’s impeachment inquiry on the same grounds.
Never mind that the due process rights demanded by Trump never apply to investigations. A criminal defendant doesn’t have the right, for example, to have his attorney attend all police interviews of witnesses and possible witnesses. Never mind that the procedure for impeachment is laid out in the same Constitution that promises due process: First the House investigates, and then, if it impeaches, the Senate holds a trial in which the president can tell his side of the story.
Never mind that, even if we put legal standards aside and think about due process as many laypeople mean it — basic fairness — neither Weinstein nor Trump has been treated unjustly. Considerable evidence suggests both men abused their power. Both have the opportunity to present their defenses to the public on platforms far larger than that of the comedian who compared Weinstein to the horror film killer Freddy Krueger, and later, in both cases, before a tribunal. That’s fair.
It is startling, if perhaps inevitable — given what we know about the egos of these men — that Weinstein and Trump present an argument that might be boiled down to: Due process means I should not face any repercussions.
This argument is old news for me. I’m a sexual harassment attorney, and I’ve seen this same “defense” often over the past five years, first in response to the movement against campus sexual assault and then regarding #MeToo generally. There are, of course, plenty of real and hard questions to ask about how institutions such as schools and workplaces treat people accused of sexual harms. Concerns about fair procedures don’t make someone a men’s rights activist; I share those commitments.
But reactionaries (usually white and male) have learned that due process arguments with no grounding in law or reality are a great way to obscure abuses and fend off accountability. They function like a supposed magic shield. Accused of sexual abuse? Call it a witch hunt! Upset that some rapists are being fired or suspended? Follow the lead of one right-wing Georgia representative: Propose a rule essentially banning schools from punishing students for sexual assault in any way (even though they could still punish students for any other reason). In other words, replace “due process” with “no process.” Want to make money by inviting a disgraced celebrity to your comedy club? Insist, as one owner who hosted Louis C.K. did, that you cannot make any decisions about whom to hire without “the right to compel testimony and perjury and cross-examination”— even if the guy, as C.K. has, generally admits the allegations are true.
Often, the people who offer these empty lines are in other contexts hostile to genuine due process rights, such as protections for immigrants and indigent criminal defendants. But they co-opt the language of process to disguise their real objection: that it is unfair for men to be held accountable for wrongdoing, that maybe these harms aren’t even all that wrong to begin with. And, it turns out, plenty of people agree.
I think some of us hesitate to call out these bad-faith arguments because we care deeply about due process and have no interest in trivializing or undermining protections already under siege for all but the most powerful. But fake due process does not promote real due process. Justice will not trickle down to poor defendants who need access to counsel if no one is allowed to criticize Weinstein at a bar. Shutting down the impeachment inquiry will not set precedent that protects the detained immigrants Trump is fighting to deport without a hearing.
Powerful men are counting on our inability to distinguish real justice from a system that works just for them. We must be smarter than that.