Dozens of power brokers have faced allegations of abuse and sexual misconduct since Bill O’Reilly was ousted from Fox News in April 2017. And as more and more figures face consequences — financial, political, professional, and legal — for their bad behavior, one term that comes up over and over again is “due process.”
Legally, that’s referring to the process enshrined in the constitution. But these days, it’s usually used as a warning against a rush to judgment.
Even President Donald Trump is in on it: In a tweet on Saturday, apparently prompted by the resignations of two of his aides, Rob Porter and David Sorensen, following allegations of domestic abuse, the president lamented the number of “lives being shattered” by a “mere allegation” of misconduct.
“Is there no such thing any longer as Due Process?” he asked, almost plaintively.
I asked eight legal scholars and experts what due process is, with the understanding that in legal circles, the question is essentially an existential one. Due process in court is one thing. In the court of public opinion, it is a much more fluid notion, entangling questions of what is fair, what is reasonable to believe, and what rings emotionally true.
Their responses, edited for clarity and style, are below.
Shira Scheindlin, former United States district judge, Southern District of New York
The Fifth Amendment to the United States Constitution, provides, inter alia, that “No person shall be deprived of life, liberty or property without due process of law.” This legal standard means what it says. Certainly, Rob Porter and others who have been accused of sexual abuse or harassment are not being deprived of their life or their liberty as a result of the allegations made against them.
Property is a closer question, in that some have lost their jobs — and the income resulting from that employment — as a result of accusations rather than proof in a court of law.
Nonetheless, in most instances, the question is not one of civil or criminal liability. Rather, the question is whether given the quality of the allegations, the person against whom the allegations have been made should remain in the position of trust, confidence, and responsibility which he (and it usually is he) currently holds. Other examples might include James Levine, Matt Lauer, or Charlie Rose.
There are many others that could be listed — including Roy Moore and President Trump. In short, there is a process — of charges, proof, and judicial decision when a legal action is brought. But when a business, a government entity, or a voter must decide whether someone is fit for his position, the decision process is of necessity much less formal, quicker, and truncated. A judgment call must be made, and it often must be made quickly.
The due process of a court action is often a very complicated and lengthy affair, involving pretrial discovery, witnesses, and a judicial proceeding. But given the stakes of loss of life or liberty, that makes sense. In context, the accusations that cause a person to lose his job must be evaluated by the employer, who must make a judgment call based on the strength of those allegations. There is nothing wrong with that.
If the person removed from his position feels aggrieved, he is welcome to bring a case in court in which he would have the burden of showing that he was wrongfully terminated. In that proceeding, I have no doubt that the underlying accusations would be fully aired. That may be why so few, if any, of the accused have pursued this course.
Andrea Curcio, law professor, Georgia State University
Due process is a legal concept that applies to government action. It has two prongs: 1) The government cannot charge you with a crime or take other action against you without notifying you of the charges or proposed action. And 2) you must be given the opportunity to present your side of the story to a neutral fact-finder before action is taken.
Many now are using the term “due process” colloquially, and largely focusing on the second prong — the opportunity to present your side of the story. Remember that due process does not mean you have the right to be believed, just that you have the right to be heard. What the president seems to be arguing is that people are believing the accuser, not the accused.
Alexandra Lahav, law professor, University of Connecticut
At bottom, due process is our protection against arbitrary governmental action and is triggered only when the government acts. It does not apply to the press or the court of public opinion, or to private employers.
Due process is best understood as a question: How much process is due? The answer depends on context. Sometimes the hearing may be very summary or informal; other times due process requires a jury trial with a standard of proof of beyond a reasonable doubt.
One fundamental aspect of due process is the requirement that the government hear the other side (“audi alteram partem”), in the words of Supreme Court Justice Felix Frankfurter, “whenever any individual, however lowly and unfortunate, asserts a legal claim.”
As I understand it, reputable journalists do attempt to hear the other side. They seek confirmation of their stories and solicit a response from the person accused. Recent high-profile allegations seem well-sourced and documented. I don’t think fairness demands more than that, and the law certainly doesn’t.
Michael Meltsner, law professor, Northeastern University, and author of With Passion, An Activist Lawyer’s Life
It might help to remember that due process as a set of legal principles is different from due process as a range of cultural signals and beliefs. The law of due process is rich and varied, but it generally evokes the right of an individual to be heard before the imposition of punishment or penalties by the government. For a rough guide to legal due process, think about safeguards of the sort found in the Bill of Rights: confrontation of accusers, a burden of proof, an impartial decision-maker, and so forth.
Due process as a cultural matter is influenced by legal ideas but is really a cluster of fluid notions that arise when people in different social and political contexts react to what they perceive as unfairness, abuse, and oppression. In the context of the #MeToo movement and the exposure of rampant sexual assault and harassment, invoking due process can mean simple justice — wait until you have the facts before you condemn — or it can be an ideological screen behind which abusers or those defending them try to justify, deflect, or delay condemnation.
Something often gets lost in the wake of allegations of sexual abuse: Even the most flexible construct of due process focuses us on a struggle for fairness in the face of our human tendency to rush toward moral judgment. But just as importantly, due process isn’t deaf, dumb, and blind. It is essentially evidence-based, so where the facts have emerged — and we have a plethora of such examples now before us — no one need hesitate to pass judgment.
At the same time, due process suggests being wary of broadsides that read all accusations identically. Human behavior, especially where sex, gender, and power are concerned, is often hard to fathom. Because one size rarely fits all, we are constantly challenged to name, call out, and demand action while at the same time accepting nuance and complexity. If this suggests closing your Twitter account, so be it.
Jonathan Turley, law professor, George Washington University
It ultimately depends on whether you are speaking legally or colloquially. Even legally, the term has different meanings. [The] Magna Carta defined it as being tried by peers “by the law of the land.” However, England has always had a very different take on the meaning and does not recognize elements of due process that we have.
In the United States, due process can mean substantive or procedural due process. Both turn on the meaning of constitutional guarantee of not being “deprived of life, liberty, or property, without due process of law.”
The president was clearly speaking colloquially about due process. He was right to the extent that he was reminding people that an accusation is not itself proof. Too often, people assume that an allegation must be true if it is in the media. However, that does not mean that we do not weigh the proof and reach initial conclusions, particularly when the allegations deal with public figures like Roy Moore or Rob Porter.
The president’s reference to Porter’s own rights and claim of innocence would be unassailable if he also expressed his concern about the women and underlying alleged conduct. Fairness does not mean that the public cannot reach initial judgments on the available evidence.
What is striking is how little Porter has offered to rebut these factual assertions. Thus far, two credible women have given detailed accounts that describe a similar pattern of conduct. Porter has offered little beyond a blanket denial.
Roy Moore is the ultimate example of the use of “due process” as a way of avoiding a question of serious misconduct. Moore and his supporters repeatedly argued that it was unfair to reach conclusions since he has never been charged or “had his day in court.” That is a reference to legal due process. While it is good to remind people that an accusation is not proof, that does not mean that the public is not supposed to reach conclusions on the strength of the available evidence.
Due process does not mean immunity from public judgment or scrutiny. If you witness someone burning down a building, you are not required to withhold your judgment on their conduct pending trial. In the court of public opinion, we can and should reach reasoned conclusions while not accepting either accusations or denials at face value.
Stephen Burbank, law professor and civil procedure scholar, University of Pennsylvania
“Due process of law” is a legal term of ancient lineage, and as used in the Fifth and 14th Amendments to the US Constitution, it constitutes an important potential check on arbitrary government action.
In law, due process has both procedural and substantive components, the latter always contestable because it is hard to reconcile with the term’s historical roots. For virtually everyone except lawyers, “due process” connotes only procedural protections: the process due (e.g., notice, opportunity to be heard) before someone is deprived of something.
Staying in the procedural realm, when one recalls that finding a violation of due process of law may require a court to hold a statute or other government action unconstitutional, it is understandable that for much of our history, as the late Elliott Cheatham put it, “to say that a law does not violate the due process clause [was] to say the least possible good about it.”
During the “due process revolution” of the 1960s and 1970s, “due process of law” came to represent something quite different, requiring much more than “the least possible good.” I expect that most non-lawyers’ conceptions of due process have been influenced by that revolution (even though it ended years ago), yielding an implicit equation of “due process” with “fairness” (rather than tolerable unfairness).
Non-lawyers, including apparently President Trump, tend not to limit their aspirations for “due process” to situations involving adverse government action. Yet it is not clear to me how a voluntary resignation prompted by accusations of serious wrongdoing can usefully be thought about in those terms.
If the resignation was not voluntary, perhaps President Trump was addressing the question to himself. More likely, as with so much of what he says, the question was not to, but about, himself and constitutes nothing more than the observation that life is unfair. Tell that to the women.
Sergio Campos, law professor, University of Miami
When discussing the due process clause — there are actually two due process clauses, found in both the Fifth and 14th Amendments — of the US Constitution, the Supreme Court has stated in the past that due process, “unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.”
Typically, the Court has interpreted the due process clause as requiring some kind of hearing or procedure to prevent the government from arbitrarily depriving someone of a life, liberty, or property interest. The right to due process can arguably be traced to [the] Magna Carta, which required the king to abide by the “Law of the Land.”
In a lot of cases, it is clear what due process requires. As the Court itself has noted, “the fundamental requisite of due process of law is the opportunity to be heard.” More recently, the court has emphasized the “deep-rooted historic tradition that everyone should have his own day in court.”
Even with these principles, a number of harder issues may arise. For example, what interests are entitled to due process protection? The Court has, for example, rejected reputation as an interest protected by the due process clause. However, in more recent cases, the court has looked more favorably on interests like informational privacy.
There is also the question of what specific procedure is required. The Court has generally employed a balancing test to determine whether a specific procedure is required, looking at “[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
This balancing test has been used to determine, for example, whether an indigent person is automatically entitled to appointed counsel in contempt proceedings after failing to pay child support.
With all that said, it is entirely unclear what due process requires in the court of public opinion.
Jay Tidmarsh, law professor, University of Notre Dame
As a constitutional concept, due process refers to an obligation of the government, owed to those who may be deprived of their life, liberty, or property through government action. The obligation derives from the Fifth Amendment, for action by the federal government, and from the 14th Amendment, for action by state governments.
It is an obligation owed only by the government. A private person does not owe “due process” to another private person. It is not clear from President Trump’s tweet who he thinks owes Rob Porter due process.
If he is saying that the government owes Rob Porter due process before depriving him of his job, that is a correct statement (although the amount of process due to Mr. Porter in the circumstance would be very little). If he is saying that the public or the media owe Mr. Porter due process, then the president misunderstands the meaning of due process — which, again, is only an obligation owed by the government.
There are two principal strands of due process. One is substantive due process: Most famously, Roe v. Wade is based on substantive due process. The extent to which the Constitution’s due process clauses create substantive rights is always controversial; when a judge is labeled “activist,” it often means that the judge believes in a broader rendering of substantive due process rights.
The other form of due process is procedural due process, which is likely what President Trump referred to. This form requires the government to observe certain procedural protections before depriving a person of life, liberty, or property. The array of protections is wide and often technical, but the core protection is the right to “notice and the opportunity to be heard.” This phrase means that before a judicial deprivation, the government must take steps to reasonably apprise the person of its action, and then give the person an opportunity to appear in court to argue why the action is improper or illegal.
The critical focus is often on the word “due”: How much process is a person entitled to? To some extent, that depends on the value or importance of the deprivation, and to some extent on the likelihood that more process might change the outcome. As you might expect, in the criminal context, where the stakes are higher, the amount of process is greater.
For example, the requirement that the government prove criminal guilt beyond a reasonable doubt is now seen as a component of due process. In the civil context, the amount of process is required is often less; for instance, a plaintiff in a civil case must prove only that, “more likely than not,” the plaintiff should win.
In non-judicial contexts, such as employment decisions, the government may also owe an employee some procedural protections before taking an adverse job action, but the protections are limited. In the case of senior White House staff, they would be minimal. And it is important to note that we can waive our right to insist on due process, so a decision to resign from employment may well waive any due process rights that the employee otherwise would have had.