Lt. Governor Fairfax Asks for Due Process, but What Process is Due?

Photo courtesy of Edward Kimmel


Due process, eschewed by Americans in the early part of this century as we both waged our war on terror and indefinitely detained “enemy combatants” in military prisons without trial, is now being invoked as our most sacred of standards when those in power are accused of sexual misconduct. Justice Kavanaugh deserved due process when he was accused of assaulting Dr. Ford in his high school days. Now our lieutenant governor asks for it as he anticipates confronting his own allegations in likely future impeachment hearings.

Some would like us to believe that due process is an absolute protection from the consequences of unproven allegations. But due process, at its best, is not an inflexible standard but a spectrum of protection founded on a weighing of interests. As articulated in the Constitution, due process shields citizens from the infringement of their liberties from federal and state governments. It is a recognition that the awesome powers of the State to take away someone’s freedom must be
constrained. It is not a formal element of confirmation processes or impeachments hearings.

But what process is due in an impeachment proceeding—when we consider not incarceration or the stripping of liberties, but rather access to great powers and responsibilities? Do we dismiss damning allegations if they cannot be proved beyond a reasonable doubt? Should the standards of a criminal trial apply?

According to RAINN, who base their statistics on the DOJ’s National Crime Victimization Survey, with the process standards in place, only 0.5 percent of estimated instances of rape or 2 percent of those estimated instances which are reported will result in felony convictions. In general, if public officials are granted that standard of process in confirmation or impeachment hearings, it would be difficult to bar or remove them over sexual assault allegations even as academic research and the FBI’s own reporting illustrates that false accusations are far and few between.

But we do not apply these standards throughout our life. When a young couple hires a babysitter, a bad vibe alone suffices to bar someone from watching their child. Applicants certainly are not entitled to any higher standard of process. And if you fire a babysitter over a nagging suspicion, no one would blame you. It is hard to argue that someone seeking a higher office or responsibility is entitled to a more forgiving process. For many, it seems obvious that the greater the responsibilities of an office, the lower are the grounds for your removal.

We do not want to live in a country where innocent officials are removed and disgraced over allegations alone. But more than that, I think most of us cannot accept a country where credible allegations against those in power are held to standards that have failed survivors over and over again. A weighing of interests is necessary here. We can understand due process in a sophisticated way.

Where our government considers taking away someone’s liberty, we require them to operate on the presumption of innocence. This is an important protection for the falsely accused in sexual assault cases, which often boils to “he said, she said.” But that does not inform our action here. Impeachment hearings are not trials.

The risk of removing an innocent man from power is simply outweighed by the overwhelming interests of making sure someone guilty of these allegations is not allowed to serve with impunity. Our state representatives can and should impeach over credible allegations—those made by individuals with no incentive to lie, whose narratives comport with existing knowledge of the facts, and that aren’t unequivocally disproven by the accused’s presentation of evidence—alone

In an impeachment setting, favor should lay with the plaintiffs, where it would lay with the accused in a criminal setting. Because power is not a right. And because due process, in its

essence, was meant to protect people from those in power, not to protect those in power from the people.