Vail Law: ‘Due process’ in law doesn’t necessarily include mere smears (column)
February 27, 2018
Recently, President Donald Trump — in the context of White House staff secretary Rob Porter's "resignation" and that of speech writer David Sorensen, both amid allegations of violence against women — lamented, "Peoples (sic) lives are being shattered and destroyed by a mere allegation … Is there no such thing any longer as due process?"
Before we can leap into the answer, though, best to understand what due process is and from whence it came.
The Fifth Amendment of the United States Constitution creates a number of rights relevant to both criminal and civil legal proceedings. In criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids "double jeopardy," and protects against self-incrimination. It also requires that "due process of law" be part of any proceeding that denies a citizen "life, liberty or property" and requires the government to compensate citizens when it takes private property for public use.
But wait, there's more.
“The Fifth Amendment of the United States Constitution creates a number of rights relevant to both criminal and civil legal proceedings. In criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids ‘double jeopardy,’ and protects against self-incrimination. It also requires that ‘due process of law’ be part of any proceeding that denies a citizen ‘life, liberty or property’ and requires the government to compensate citizens when it takes private property for public use.”
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The due process rights established through the Fifth Amendment were extended to the states through the 14th Amendment.
The 14th Amendment, born of the Civil War, consists of four subparts. These include assurances that rights of citizenship shall not be abridged; establishes procedures by which representatives in Congress are to be apportioned; grants Congress the power to remove disabilities of United States officials for rebellion; and recites what public debts are valid.
The key to this
While all of these subparts have their place, the first is key to our discussion. It assures all of the following: 1) All persons born or naturalized in the United States are citizens of the United States and the states wherein they reside (although there is a recent buzz afoot to change this); 2) that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; 3) that no state shall deprive any person of life, liberty of property without due process of law; and 4) that no state shall deny to any person within its jurisdiction equal protection of the law.
It is the third of these that is the prize in the legal Crackerjack; "neither life, liberty nor property may be deprived a person without due process of law."
So that, along with a long legal tradition that is embodied in the constitution, is the "where it comes from" part. In point of fact, the concept of due process hies back to the clause 39 of Magna Carta in jolly olde England. Reference to due process first appeared in a statutory rendition of clause 39 in 1354, holding rather grandiloquently, "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." Of course in so many things — even when throwing off the yoke of British rule — the "colonies" followed in the footsteps of Mother England. Especially, when there were good pickins to be had.
Now, what, exactly does "due process" mean?
"Due process" stands for "in the ordinary and usual course." Before a person may be denied life, liberty or property, the full gauntlet of the law must be run and thoroughly exhausted.
Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of the law of the land and protects the individual person from it. When a government harms a person without following the prescribed course of the law, this constitutes a due process violation which offends the rule of law.
Due process is a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. From this basic principle flow many legal decisions determining both procedural and substantive rights.
As a quick bit of legal nerdism, it is important to understand the distinction between "substantive" due process and "procedural" due process. The former deals with protection of one's fundamental rights while the latter deals with the means and mechanisms of protecting them. Procedural due process can deal with seemingly mundane but critical details such as adequate notice of charges, timing of charges, statutes of limitations, identification of witnesses, disclosure of evidence, burdens of proof and other many other protections essential for the protection of the rights of the accused.
Let's backbend now to where we started. Are the resignations of Porter and Sorenson violations of due process? Simply, no. If you read carefully, above, then due process is a protection against incursions by the state and the state alone. If pressure mounts on one to hand in his keys and clear out his desk, unless the state compels it, then it is at the most something other than a due process violation. Perhaps the most the president and other advocates of these two men can argue is that it's character assassination. I'll leave that to history and the battered victims to sort out.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.