Is Process Due?

It's too early in the morning for this, but such is life today...

First, when we speak of "due process," we are usually speaking of crimes and criminal charges.  Oddly, none of the people mentioned in this article have faced criminal charges.  Maybe they should, and in some cases perhaps they will (there is an expression of impatience that Harvey Weinstein has not been charged, convicted, and buried under the jail yet, but this is reality, not a TV courtroom drama that has to wrap up in 50 minutes).  And "due process" is the protection the innocent have from being charged with a crime they did not commit, or from being convicted for a crime they aren't responsible for.  There isn't any "due process" for victims because they are not facing the full weight of the government and the threatened loss of their liberty.

Then again, we are all victims now, or aspire to be; it's become the new badge of identity.  We are victims and must carry that burden for the rest of our lives, else who are we?  I'll point to the case of Dylan Farrow, who is a victim of sexual abuse at the hands of Woody Allen because she's been told she was for most of her life.  She still professes her victimhood and uses it for publicity.  Do I mean she should be demure and "feminine" and stop bringing up such an unseemly event from her past, if indeed it happened?  No; but neither is her repeated statement that it happened to her evidence that would stand up in criminal court.  I'm old enough to remember the people convicted of child abuse on nothing more than the testimony of very young children, testimony everyone was shocked by at the time, and everyone now agrees was coerced and constructed by well-meaning people handing dolls to children and asking a blizzard of leading questions.  Is Dylan Farrow telling the truth?  She thinks she is.  Is it the truth?  We have no way of knowing.

Is Dylan Farrow being denied "her" due process?

Or what about Garrison Keillor?  We are reminded that an "investigation" revealed enough evidence to fire him from his job with MPR.  However, Mr. Keillor had already stopped working for the radio show he originated and hosted for years, reviving it once after taking it off the air himself.  MPR scrapped the name of that show, probably not because of its association with Mr. Keillor, but more likely because he kept a property interest in it, and they couldn't use it without either his permission, or after buying it from him.  Is Mr. Keillor truly harmed by this?  He doesn't seem to think so.  And what did Mr. Keillor do?  We still don't know.  MPR has refused to release the results of its investigation, even after Mr. Keillor's lawyers demanded they do so.  Whether Mr. Keillor presses that demand into a civil court is his business, but unless he does, we'll probably never find out why MPR cut ties with him.  And therein lies a crucial aspect of due process that works for victims as well as the accused:  a public trial.

The accused can always, of course, avoid a public trial by settling a civil case or entering into a plea agreement for a criminal case.  But if they don't, in criminal court they have to a right to face their accuser and to have the evidence presented against them in public.  If they are exonerated, the public knows why, and can decide for itself if justice was done (see., e.g., the OJ Simpson verdict).  If they are convicted, the public has access to the evidence against them, and again can decide if justice was done.

None of this is possible in an investigation by an employer who decides to fire you.  The victim's story is never told, the accused never faces his accusers, justice is not really done, due process is non-existent.

Does that matter?  Shouldn't the people accused be punished?  On what grounds?  Ally Sheedy posted three tweets about James Franco, hinting darkly that she was "#me too" about him, and then she deleted all three posts.  What was she referring to?  Now she won't say.  Is she being denied her due process?  Is Mr. Franco?

Why am I bothering with this?  Well, partly because of this analysis by Josh Marshall.  He lays out what we know about Trump and Russia, and tries out two "maximal theories" about what the evidence means:

Now, you might be saying, these are two extreme, strawman-ish scenarios you’re outlining. Well, I agree. That’s my point. I’m setting forth the maximal theories on either side to make the point that I don’t think we know quite where on this spectrum this all fits or how we reconcile what seems like a deep and close relationship with what seem like introductions. We know a fair amount about what happened before the campaign. We know a decent amount about what happened during the campaign. But it’s not as easy or clear as many assume how you fit them together.

The most important question is what happened during the campaign – in legal terms, in democratic terms, in national security terms. But in many ways the biggest question, the most fascinating and hardest to figure is this one I just laid out: how does Trump’s heavy dependence on Russian money and employees with deep ties to Russia and Ukraine and the criminal underworlds in those countries connect to the very pro-Russia line he took during the campaign and his campaign’s willingness to work with and conspire with the Russian disruption campaign in 2016? Sure they must be related. But how? I don’t think we really know that yet.

My best guess is that people around Putin knew Trump was crooked and dependent on Russian money and that he was likely to be friendly and up for … well, up for anything. So they went to work trying to make friends and found willing partners. He was up for anything. But that isn’t so much an explanation based on specific facts as it is the simplest explanation, the cleanest theory that accounts for all the facts we know.

This requires a lot more sleuthing and explanation.

And that last sentence, commenting on what is needed, is precisely what the special prosecutor is doing.  Undoubtedly the investigators know a great deal more about these matters than we do.  That is one reason their results should be presented in a court of law, in public, subject to cross-examination and verification under strict standards.    We never got that with Nixon; the closest we got were the House hearings, which many dismissed as partisan and biased, and held to the belief Nixon was railroaded out of office.  Even with a trial, of course, the public may not be satisfied; the OJ Simpson trial is, again, the prime example here.   No one can guarantee a judicial outcome.  But few think Simpson was not guilty; they are more likely to blame the prosecution, or even the defense, than to excuse Mr. Simpson.

But we can't conclude, like Trump wants to, that because we don't know the whole story, we already know the whole story.  We won't know the story without either a public release of the results of the investigation or, better yet, a trial where both sides can present their case to a judge and jury for determination under our legal system.  To convict Trump and his Administration on the grounds of "what we know", even a conviction in the court of public opinion, would be unfair and unfounded, at least in one sense (I'll admit that, as a matter of politics, it wouldn't bother me at all; then again, the only punishment would be at the ballot box).  It would also leave the matter grossly unresolved.

The proper resolution is what due process is for.  Are the victims of sexual harassment being denied their due process rights?  No; either they have criminal claims that a prosecutor can decide to prosecute; or they have civil claims they can take to court themselves.  It is entirely possible they have neither:  inappropriate touching may be a civil assault, but unless it is offensive to a reasonably prudent person, it isn't an actionable offense.  Most sexual harassment law requires an employer/employee relationship (most, not all), so there is another limit.  Criminal cases are even more severely limited; but this is the legal system we have.  If you want to take up the cry of "#metoo" and believe every woman who makes any allegation whatsoever, no one can stop you.  But a rallying cry that appeals to even millions is no replacement for due process; indeed, it is the reason for due process in the first place.