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What the Presumption of Innocence Means in Trump World

Trump is quick to defend the white, male and powerful, but less so for everyone else.

February 13, 2018

Donald Trump knows what “due process” is because he’s ignored or undermined it all his life. And the idea that he would suddenly discover the merits of it in defense of a white man accused of serial domestic violence probably is the least surprising part of this sorry story of gender and accountability. We are witnessing again in this rootless administration the embodiment of white, male privilege, where the rich and powerful always deserve the benefit of the doubt and the rest of us do not.

Rob Porter had no business being in the White House once it became clear who and what he was. The president had no business defending him and neither did chief of staff John Kelly, who days later still hasn’t adequately explained his initial praise for Porter or told us what he knew, and when he knew it, about the latest security risk at the White House. Ultimately, though, all these stories are about Trump. Like a vacuum he sucks it all back toward him. 

The history of his life of privilege, of scorn, is filled with moments like this, moments in dramas that have unfolded on the national scene involving guilt or innocence, accusation and denial, where he’s had the choice to say or do the right thing. And invariably he has chosen the most unwise, most unfair, most unjustified path. Not just on legal or political grounds but on more basic human grounds. Due process, in the end, is about fairness, about the avoidable of arbitrary and capricious judgment. 

The man who know wants us all to become more discerning with our allegations, even in the face of photographic evidence, is the same man who built a presidential campaign on the allegation that Barack Obama is a Kenyan and that Ted Cruz’s father was involved in the assassination of President John F. Kennedy. The man who now extols the presumption of innocence, out of concern for “victims,” has said nothing about the women who say Porter victimized them. Somewhere, Roy Moore is smiling.  

 Due process is not shouting “lock her up” on the campaign trail when describing a political opponent who had devoted decades of life to public service and who was never charged or convicted of a crime. What does due process mean to Donald Trump when it comes to Hillary Clinton? Precisely what it means to fellow misogynist Newt Gingrich, who said Sunday: "In any reasonable system of law, Secretary Clinton would already be in jail."

 Due process is not precluding the Central Park Five, teenagers accused of rape in New York City a generation ago, from having their constitutional right to a presumption of innocence.  It is not taking out a full-page advertisement in a local paper demanding the death penalty in the case two weeks after the crime. Due process also means, in that case, an apology once the men were exonerated, years later, after another man confessed to the crime and DNA linked him to it. But Donald Trump doesn’t apologize. He just pretends the innocent are guilty and the guilty are innocent.

 Due process is not gleefully signing off on the first travel ban, just over one year ago, which was an arbitrary and capricious use of federal power, discriminatory in both its purpose and effect, to keep people of color out of the country.  In fact, years from now, law school professors will cite that ban, and the chaos that followed it, as a very definition of what happens without due process.

 Due process is not trying to undermine a federal investigation into your ties to Russia by seeking to turn the American people against the FBI and Justice Department while the probe proceeds.

 Due process is not making bigoted remarks about federal judges, suggesting during the course of pending litigation that they are or may be biased against you based on their race or ethnicity.

Due process is not reflexively calling for the death penalty in the early hours of a criminal investigation into a terror attack when there are hundreds of pages of rules designed to guide an attorney general in making a decision about whether to proceed with a capital case.

Due process is not ordering your federal immigration agents to enter state and local courthouses to arrest and deport mothers and fathers and sisters and brothers who have come to testify as witnesses, or victims, in criminal cases. These people are the embodiment of due process in the cases in which they are involved. 

Due process is not embracing lies about a national crime wave to justify draconian new sentencing measures, or a new generation of police abuse and misconduct, or to fuel another private prison boon that will benefit shareholders but consign countless people to deplorable conditions of confinement.

 Due is process is not trying to impose dubious federal immigration dictates by criminalizing the behavior of public officials in “sanctuary” jurisdictions who are following their own laws and rules for the benefit of public safety.

 Due process is not bemoaning the fact that the Justice Department is not made up of “my guys” and thus something to be pressured into being an instrument of the administration at the expense of the governed. 

Donald Trump knows what due process is. And he knows what it isn’t. In his world due process is not for everyone. It’s just for those he likes, or who can help him, or who look like him, or for those who are accused of the same criminal behavior of which he’s been accused. It is for business partners and fellow autocrats. It is not for people of color, or women, or Democrats, or longtime law enforcement officials texting each other.  

 If this latest example of White House malfeasance weren’t so serious, if it didn’t say so much about how this administration warps the rules, of how it so carelessly shares its dark secrets with those who don’t have adequate security clearance, of how it so routinely demeans women, the hypocrisy of what the president said Saturday is so patently offensive it would be comical. But there is nothing funny about a White House run by people who remind us every week that they really are only in it for themselves. 

(Photo: AP)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.