Screaming “Due Process” Doesn’t Make It So

Painful as it may be to say this, Alexandra Brodsky isn’t entirely wrong.

The men* mourn due process. Last week, Harvey Weinstein attended a “speakeasy for artists,” where, as he should have expected, a comedian pointed out that #MeToo’s top villain was in the audience. Two other performers directly confronted the Hollywood producer, who awaits a rape trial. Their comments were, a Weinstein rep decried, “an example of how the public is trying to squash due process.” Some of the critics later reported they were escorted out of the club without any kind of process of their own. One, Zoe Stuckless, recalled: “This guy was leading me out the stairs, just repeating ‘due process, due process’ to me.”

While there are some serious doubts any of this happened as Brodsky claims, not because they didn’t happen but because Brodsky lacks the cred to believe her in the absence of better proof, and she is, as one would expect, disingenuous in her spin, as the “due process” connection exists as Weinstein is universally reviled and treated as guilty despite not having been convicted of anything, the point remains. Hating him, even without conviction, isn’t a denial of due process.

But as much as the Weinstein example is mediocre, and included only because of Brodsky’s inability to not involve her brand of sexism in every post she writes, her second example is far more apt.

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.

Trump, et al., have used the due process mantra as well, and it’s complete nonsense for the reasons Brodsky gives.

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.

Of course, Brodsky can’t control her worst impulses, even after getting something not entirely wrong.

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.

Despite her irrational impulse to indulge her fallacious inductive reasoning, Brodsky isn’t wrong to call out Trump for besmirching the critical and pervasive denial of due process. Trump has invoked it as a mantra, even though it has no applicability to the impeachment process in the House. In other words, he demeans the concept by attempting to misuse it (along with his sycophants).

At the charging stage, the accused does not yet enjoy any due process. And by doing this, Trump and his enablers not only make people stupider, but undermine the critical value of due process, as is denied in campus sex tribunals and the imposition of pop punishments following #MeToo accusations.

Granted, this is hardly a Trumpian problem, as it is simultaneously happening with the deliberate lying about Katie Hill’s “revenge porn” cries making the rounds by the likes of Mary Anne Franks and her trusty sidekick, who at least is a lawyer, Carrie Goldberg, who promises “Everybody who participated in Representative Hill’s humiliation is on notice that we will track them down.” And do what? Accuse them of crimes that don’t have cute names yet?

While it’s tempting to play the tu quoque game over whose lies are worse lies, who makes people deliberately stupider about law in their effort to capture the hearts and tears of the useful idiots, that’s the territory of the Brodskys, the Franks, the Goldbergs, doing everything possible to achieve their ends.

But due process isn’t a game, like these hysterical revenge porn shenanigans, and Trump’s seizing upon the words to use in his defense is not only legally moronic and wrong, but takes this extremely serious deprivation and turns it into a joke to delude the public.

There is no denial of due process involved in the House of Representatives impeachment proceedings because there is no process due at the charging phrase, whether of a crime or for impeachment. Trump will get his due process in the Senate, where Articles of Impeachment, should they ever come, will be tried. He will be able to confront witnesses against him (not the whistleblower, who is no more relevant to what happened than the random person who called 911), and to argue his cause. But now, he gets no due process because he’s entitled to none.

Weinstein is a bit different, not that you would realize it from Brodsky’s conflation. It’s correct that people on the street (or in a club) have no duty to provide him with due process or withhold their judgment, baseless and intellectually dishonest though it may be. But he hasn’t been convicted of any crime as yet, no matter how certain people without actual knowledge of anything (like, oh, Brodsky) may be. So there is a due process concern here, even if they’re under no duty to recognize or respect it.

When it comes to very real, very serious legal issues such as due process, letting Trump falsely abuse it demands correction, lest it become a tool like “revenge porn” in the hands of liars and ignoramuses. This may be good enough for Brodsky, not to mention Franks and Goldberg, but it shouldn’t be good enough for anyone who cares about legal accuracy and the very serious denials of due process to real people whose lives are destroyed at the hands of the scolds. Don’t be them. Don’t be like them. Even if they don’t deserve intellectual honesty from anyone else.

*Women too, but since they’re oppressed, they’re allowed to bask in the faux feminist mystique.

13 thoughts on “Screaming “Due Process” Doesn’t Make It So

  1. Scott Spencer

    This whole thing reminds of the that episode of “The Office” where Michael tries to declare bankruptcy by yelling “I DECLARE BANKRUPTCY”…..

  2. Richard Kopf


    Before you shit-can comments or call us nasty names, we demand due process. See the 21st Amendment. If you don’t believe me, ask Skink.

    1. SHG Post author

      Don’t be silly, Judge. Whenever I shit-can one of your comments, I always mutter “with all due respect” first.

  3. Nigel Declan

    I am not sure if emotional ambulances are a thing yet, but if they are, Goldberg’s webpage strongly implies that she spends a significant portion of her day chasing them.

  4. Tyler

    “ the critical value of due process, as is denied in campus sex tribunals and the imposition of pop punishments following #MeToo accusations.”

    is this statement accurate? campus proceedings are not criminal proceedings, civil court is a better model of comparison, no presumption of innocence and a preponderance standard, even for defendants being sued for sexual assault

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