Undue Process

We're entering the era of "Legal due process for me but not for thee." Let's look at just a few examples from the Trump regime.

There’s a reason we didn’t “lock him up” on January 7th, 2021.

Due process.

It’s the same argument made by the Supreme Court liberal justices during oral arguments on presidential immunity, and ultimately in their dissent. Trump and his lawyers were insisting that if the court did not crown him king, that roving bands of future rogue prosecutors would bog down the presidency with criminal prosecutions after leaving office. Justice Sotomayor said "There is no failsafe system of government, meaning, we have a judicial system that has layers and layers of protection for the accused in the hopes that the innocent will go free. We fail. Routinely. But we succeed more often than not. In the vast majority of cases, the innocent do go free. But we still fail. We've executed innocent people. Having said that, Alito went through a step by step of all the mechanisms that could potentially fail. In the end, if it fails completely, it's because we've destroyed our democracy on our own.”

In our two-tiered system of justice, the wealthy and powerful often have more access to the protections of due process than the rest of us. Due process is what Trump exploited to delay his trials. It’s what corrupt judge Aileen Cannon manipulated to Trump’s advantage in the classified documents case. It’s what good guys bend over backwards for, and what bad guys run roughshod over.

And now with the second Trump administration - despite having benefited himself from due process - we are seeing a pattern of completely ignoring due process at the peril of democracy itself. There are four clear examples of this, and counting.

First, Elon Musk’s DOGE and Donald Trump are circumventing due process to fire massive swaths of federal employees. Two members of the Merit Systems Protection Board, the former head of the Office of Special Counsel, and now two judges have ruled that Trump and Musk’s attempt to fire all probationary employees in one fell swoop ran afoul of due process under law. Probationary employees can be terminated for underperforming or being deemed a “bad fit” after each person’s performance has been evaluated. By terminating all probationary employees without that consideration, the courts, the MSPB, and the OSC found that Trump was trying to employ a Reduction in Force (RIF) disguised as terminating probationary employees for performance.

Reductions in Force are legal, but there are due process requirements such as a 60 day notice. Two judges have found that by circumventing these laws and ignoring due process, the Trump administration had violated the law. The probationary employees are now being reinstated under temporary restraining orders issued by the courts.

I have spoken to several federal employees who have received their reinstatement notices.

Second, this administration is bucking due process for peaceful protestors. We saw this during the first Trump term when Attorney General Bill Barr declared “anarchic jurisdictions” and sent unmarked cops to places like Seattle and Portland to disappear peaceful protestors in unmarked vans. We saw the deployment of military helicopters to fly low over protests in DC. And we can’t forget the rubber bullets and chemicals used to move peaceful protestors from Lafayette Park when Donald posed with an upside-down bible in front of Saint John’s Episcopal.

Now we are seeing the detention of Columbia University students like Mahmoud Khalil for protesting the treatment of Palestinians. They are being detained without due process for being considered “national security threats” under an obscure law that allows the Secretary of State to deport migrants he feels are a threat to the United States - a law that many scholars believe is unconstitutional. I don’t need to explain to anyone the dangers of detaining peaceful protestors without due process.

Third, we are beginning to see actual rogue prosecutors demanding illegal seizures, criminal investigations, and prosecutions of people that Donald Trump has deemed a political enemy. For example, interim US Attorney for the District of Columbia Ed Martin went to several people trying to seize Inflation Reduction Act appropriations without due process. Ed Martin was even rebuffed by a judge when he sought the illegal freezing of funds, and a 24 year veteran Denis Cheung resigned in protest when she was asked to seize money without due process or probable cause. We also have Attorney General Pam Bondi initiating criminal investigations into diversity, equity, and inclusion programs at publicly funded universities.

This happened during the first Trump administration, too. I recall when Bill Barr went to multiple grand juries to attempt to get an indictment against Andrew McCabe and failed. That is a real rogue prosecutor motivated by political animus. Trump is even trying to rescind Biden’s pardons of January 6th Committee members so he can rob them of their due process rights and hold them criminally accountable.

Finally, we have the invocation of the Alien Enemies Act - an arcane law used only three times in history, including the internment of Japanese Americans during WWII. The Trump administration is using it to deny due process to those he intends to deport. If these hundreds of migrants were actually undocumented criminals, due process would allow him to deport them. So why skip it? So he can test this Supreme Court to see if they’ll let him detain and deport anyone he wants.

The end game is clear. Trump wants to arrest, detain, indict, and deport whomever he wants without having the judiciary provide any oversight. I hope that while the Supreme Court thinks he’s a king, that they won’t sacrifice their own co-equal power to this administration.

~AG

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Copyright: Alon Harel