While many seem bewildered by the biased proceedings in the show trial surrounding the impeachment of President Trump, the truth is that due process protections died more than a decade ago with the election of President Barack Obama. And, although some may claim that the Obama administration’s formal removal of due process protections through a “Dear Colleague” letter only applied to Title IX cases on college campuses, the reality is that progressive politicians have been steadily creating a culture in which all citizens — including a sitting president and a Supreme Court nominee — are vulnerable to losing their constitutional right to a fair hearing on any issue.
Under the April 4, 2011, Obama mandate, the constitutional protections of innocent until proven guilty, right to counsel, and the right to cross-examine witnesses were removed from those accused on college campuses. The mandate also forbade schools from using professional investigations of criminal conduct by law enforcement authorities to resolve Title IX complaints. Campus judicial systems were mandated, and the Office of Civil Rights demanded that schools resolve complaints on “an expedited basis.” Worse, the Obama administration demanded that any due process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them.
Those who were accused were denied the ability to appeal a guilty verdict, but the accuser could appeal a “not-guilty finding” against the accused — ensuring that accused students end up being retried even after they have been cleared of wrongdoing. “Guilt” was based on the weaker standard of the “preponderance of evidence” rather than the stronger standard of “clear and convincing” evidence of guilt.
There have been many victims of the unconstitutional erosion of due process protections. Two years ago, the Foundation for Individual Rights in Education (FIRE) issued a Spotlight on Due Process, a rating of the top 53 universities in the country that revealed that nearly three-quarters (74 percent) of America’s top 53 universities do not even guarantee students that they will be presumed innocent until proven guilty. Fewer than half of the schools (47 percent) require that the fact finders — the institution’s version of judge and or jury — be impartial. Seventy-nine percent of the 53 universities received a D or F for protecting due process rights of those accused. Some of the most elite colleges in the country received the lowest ratings for providing due process rights to individuals accused. Boston College received an F rating for failing to provide a presumption of innocence, adequate written notice of allegations, adequate time to prepare for the disciplinary processing including receiving notice of the hearing data, and a prohibition on conflicts of interest that could compromise the integrity of the process. The University of Notre Dame does not provide the accused with the right to counsel or the right to cross-examine witnesses. But both schools fared better than Washington University in St. Louis, which received a zero rating — providing none of the due process procedural safeguards. Of the 53 schools, none received an A grade, but University of California, Berkeley and Cornell each received a B for their policies to protect due process protections.
Although Education Secretary Betsy DeVos has courageously attempted to end what she called “the era of rule by letter,” the culture that it created continues. We witnessed that culture in the Justice Brett Kavanaugh confirmation hearings last year and are witnessing it now in the televised impeachment inquiry. The proceedings mirror the kangaroo courts that continue to flourish on many college campuses, replete with tearful victims like the former ambassador who is still angry because she was removed from her job. No one is allowed to critically cross-examine the witnesses or bring in rebuttal witnesses. Anyone who tries is silenced.
The damage has been done: a anti–due process culture has been created by progressive politicians promoting draconian campus policies that removed due process protections from the accused. Still, when some of their fellow Democratic lawmakers — including the late, former Michigan Rep. John Conyers, then the ranking Democrat on the House Judiciary Committee — were caught in the ever-expanding net of sexual abuse allegations in 2017, lawmakers seemed to re-discover due process protections. The Congressional Black Caucus demanded due process for Conyers. In an appearance on “Meet the Press,” our current Speaker of the House, Nancy Pelosi, said Conyers, who was then in his 27th term in Congress, deserved due process: “We are strengthened by due process. Just because someone is accused — was it one accusation? Is it two? … John Conyers is an icon in our country.”
As head of the Judiciary Committee, Rep. Conyers contributed to the corrosive campus culture that has spawned the current congressional impeachment — and his own demise. Eventually, Conyers resigned under the mounting pressure of additional allegations against him, but at his funeral earlier this month, he was lionized as the protector of the people. Conyers and Pelosi helped to create the unconstitutional process that President Trump is facing and that Justice Kavanaugh endured in his confirmation hearings. But when the Democrats are in charge of Congress, constitutional protections are only afforded to a few. Their message is clear: Justice for me, but not for thee.
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