During a speech that will serve as a tidy recruitment reel for violent gangs worldwide, Donald Trump (elegant philosopher, he) propounded his own take on due process of law:
When you see these thugs being thrown into the back of a paddy wagon, you just see them thrown in. Rough. I said, please don’t be too nice, like when you guys put somebody in the car and you are protecting their head, the way you put your hand. Like, don’t hit their head, and they’ve just killed somebody, don’t hit their head. I said you could take the hand away.
One might expect that a man who — along with much of his family — is the subject in multiple criminal probes would have a somewhat more nuanced — and perp-friendly — view of such matters. At the very least, it seems that at some point, Special Counsel Robert Mueller is going to arrest Donald Trump Junior — for conspiracy, wire fraud, espionage, money laundering, or whatever else Mueller dredges up from the depths of the Trump crime family’s cesspool of felonious depravity. The question arises whether, when Mueller does so, he shouldn’t smack Junior around a little bit, jam his chinless overbite into the pillar of a government-issue sedan, and then take him for a ride on the wild side — a ride of the injured-spine variety.
And really, why on earth not? In Trump’s world, once Junior is arrested, he’s guilty.
Luckily for Junior, the assclown he calls “daddy” does not make the rules; nor does he understand them. Speaking of the rules, here are some with which Trump’s followers might want to acquaint themselves.
1. The basics of due process
The Due-Process Clauses of the Constitution (there are two of them) provide that the government may not take away a person’s life, liberty, or property without due process of law. Due process, like most other terms in the merely 7500-word Constitution, is hopelessly general and vague, crying out for interpretation by judges. (The next time you hear a teabagger say judges should just apply the Constitution as it’s written, ask that teabagger to explain due process.)
Process means procedures, which in turn means steps to be taken. Due, in the constitutional context, means that to which one is entitled as a matter of fundamental fairness. So before the government kills you, locks you up, or seizes that which belongs to you, it must take whatever steps are necessary to ensure fundamental fairness.
What steps are those? The Supreme Court has explained that there are three necessary components to due process: 1) notice, 2) a hearing, and 3) an impartial decision-maker. So in the United States, one is not to be criminally punished (including through the use of retributive violence) until those three components have been satisfied. It’s a remarkable indictment against Donald Trump and his supporters that this most fundamental of American precepts is lost on them.
The very first step in providing due process — which, to repeat, is to precede the meting out of retributive measures — is the giving of notice. Although a suspect may be detained on a mere reasonable suspicion of criminal wrongdoing, he does not become the defendant in a criminal case until he has been arraigned by a magistrate — which is to say formally charged.
Trump wants police officers to administer punishment before we’ve even gotten to step one. He proposes not just that officers use the level of force required to apprehend and detain, but also a little extra — you know, a little gratuitous head-bashing of the punitive kind.
Next, before guilt may be assigned, the accused is entitled to a hearing, which is defined as a meaningful opportunity to confront the evidence against him and tell his side of the story. This is the stage where it’s determined whether the accused “just killed somebody,” as Trump put it. As inconvenient as it might seem, hearings in criminal cases are managed quite carefully, with things we call “rules of evidence” and guardrails galore to ensure the integrity of the outcome. However much Trump might loathe the availability of such niceties for those not named Trump, watch him tweet up a storm when he thinks the court system isn’t being fair to Don Junior.
4. Impartial decision-maker
No, police officer does not count. That doesn’t mean that police officers are incompetent or unfair in their decision making; it just means that this decision — the decision whether a person is guilty of a crime — is not for a police officer to make.
An officer only decides whether there are grounds to detain and arrest a person. Were an officer’s job to decide any more than that, you wouldn’t hear so many officers say to detainees, “Tell it to a judge.”
Before punishment may be imposed, the accused is entitled to the attention and good offices of a neutral arbiter — a judge or a jury — whose judgment is based on the rational application of the law to objective evidence rather than the inflamed assumptions arrived at without any reflection in the chaos that is a crime scene.
So it is not, as Donald Trump seems to believe, for an arresting officer to decide that a detainee has “just killed someone” (or, for that matter, conspired with a hostile power to torpedo America’s democratic institutions) and should therefore have his or her head jammed into the side of a police cruiser. Because most law-enforcement officers know this (and live by it), we can expect that after Junior gets arrested, he’ll arrive at a booking station relatively intact.
It’s strange how a man with the criminal proclivities of Donald Trump so lacks empathy for others who might be accused of criminal wrongdoing. When he delivered his offending remarks, he did so in the context of a discussion about gangs and gang violence. But we know why gang members turn to gangs and gang criminality: poverty, hopelessness, the basic human need to belong, and the anger inhering in a childhood bloated with injustice and hardship. That’s why gang members turn to crime. What’s Trump’s excuse?