Is mob justice now poetic justice?
In 2012, Attorney General Eric Holder visited Northwestern University Law School to announce the “kill list” policy of President Obama under which he reserved the right to order the death of any American deemed as one imminent threat. Holder said, “The Constitution guarantees due process but not judicial process.” The reaction was as chilling as the message as the crowd of judges, lawyers, and students applauded the man who told them that any of them could face death under executive order.
Some of us denounced such “kill list” policy at that time, which foretold what has become a campaign against due process. In our heated age of internet attacks and cancel culture, due process is treated as arcane and inconvenient. Our political discourse must now be worthy of tweets and delivered in the news cycle measured in minutes. Due process, like free speech, is rarely valued until its loss finally becomes personal.
Take New York Governor Andrew Cuomo. He advanced his own political career by placing himself at the front of every mob attacking rivals, like during the confirmation for Justice Brett Kavanaugh. Before hearing the defense from Kavanaugh, Cuomo described the allegations against him by Christine Blasey Ford as presumptively true. Cuomo basically called Kavanaugh a rapist, without due process, and demanded that he take a polygraph as a condition to be believed. Cuomo was not alone.
Many Democrats insisted that “women must be believed” on any sexual harassment allegations and called Kavanaugh guilty before hearing any testimony. Representative Alexandria Ocasio Cortez dismissed the due process concern for him and said it “must focus on the victim.” Senator Mazie Hirono said he was not allowed a presumption of innocence and that men should “just shut up” and simply accept allegations.
When allegations from Lindsey Boylan surfaced last year, I asked if Cuomo would presume himself guilty absent a polygraph. Now after details of the allegations of his kissing and propositioning her, many are struggling with his prior position against due process. While several networks blacked out the story or barely covered it, other networks have declared Cuomo to be guilty and dangerous. Cuomo deserves due process, despite him denying it with others. Simply because Boylan made allegations against him is not evidence of guilt. Both sides have a right to be heard but not a right to be believed solely on their words. Due process allows us to determine who is a victim rather than vindicate one party as a declared victim.
The new administration could build on policy from the Obama era, when universities were pressured, on threats of losing federal funding, to strip students of due process protections in cases of alleged sexual assault or harassment. Schools like Harvard University initially resisted in court but swiftly caved. On many campuses today, due process is often dismissed as a virtual claim of privilege or a tactic to delay racial justice.
Consider the controversy in Massachusetts. In 2018, Smith College and its president, Kathleen McCartney, went into a frenzy after a student, Oumou Kanoute, accused the school of racism in an incident. Kanoute noted how a security guard was called to ask her about simply having lunch, and she claims, “All I did was be black. It is outrageous that some people doubted my being at Smith College and my existence overall as a woman of color.” Some media outlets published such allegations without seriously probing the underlying facts. As discussed in the piece by the New York Times, an intensive investigation disproved the allegations by Kanoute.
However, McCartney did not wait for an investigation. She suspended the janitor who had called security and ordered training to deal with systemic racism at Smith College. Kanoute had reportedly published the names of the workers, including one who was not involved in the incident. So all of the workers left Smith College and were hounded as presumptive racists. After the investigation cleared them and found no racial bias, McCartney found reason to state, “I suspect many of you will conclude, as did I, it is impossible to rule out the potential role of implicit racial bias.”
Even the American Civil Liberties Union lawyer who represented Kanoute dismissed any costs to these workers from being humiliated without due process. So the workers were not entitled to due process since they were not victims but the person who made the false allegations was. The Smith College case is not rare. Lack of due process is a scourge in campuses. In 2006, Duke University lacrosse players were accused of gang rape. While the school and the media treated them as guilty and dangerous, despite glaring problems with the account that was told by the accuser.
For the 1968 film “Green Berets,” actor John Wayne plays Mike Kirby who says that “out here due process is a bullet.” Today, due process has been reduced more to a bullet point. For too many pundits and politicians, the issue of guilt revolves around how the conclusion can reinforce their own identity or agenda. Every accused and every victim is a vehicle to amplify a message. As Cuomo has found, one can lead a mob one day only to be pursued by it on the next. It would be rather easy to leave him to the mob and call it poetic justice but that is not justice of any kind. Cuomo should receive the due process he denied to others, not because he deserves it, but because he embodies the costs of ignoring it in our society.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
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