Saturday, July 31

So You Value Due Process? Hey! #MeToo!

This is going to sound really strange coming from me, but … (deep breath) … Donald Trump is right about due process. Granted, "due process" is probably just a phrase Trump overheard on an episode of Law and Order, or maybe from one of his cadre of attorneys. But the source being whatever it may, when you're right, you're right.  The US Constitution guarantees due process prior to the deprivation of “life, liberty, or property”. For that reason alone, Trump is right, even if only in a stopped-clock-twice-a-day manner, about the criticality of due process. Furthermore, we should understand a few things up front, one about professional relationships between men and women, another about free speech, and third about the economics of legal defense and the implications for the practical availability of due process in a courtroom. So far, the discussion precipitated by the #MeToo movement has tended to breezily skate over all the above.

14th Amendment -- Page 2
14th Amendment -- Page 1

Back in the late 70s, I gained some experience taking into account professional relationships with women vis a vis sexual harassment. I was second-level manager of a group of people – we called ourselves the “AARDVARKS” … long story – that supported highly classified projects with the joint NATO defense ministries. We traveled to all the NATO countries at one time or another, both as individuals and in groups of 3 and 4.  The group was basically half men and half women. Because we worked so closely together in such a pressure-cooker environment, and because we all had to deal with stresses on friendships and marriages -- I was single at the time -- caused by knowing things we often wished we did not know, the AARDVARKS developed a kind of esprit de corps among both women and men and across gender lines. We were like a family.

One day, a directive came down to all second-level and higher managers from senior executives that all managers at our level were required to participate in a one-day training class about corporate policy in dealing with sexual harassment. I went with several of my sibling managers on our appointed day. Just before we broke for lunch, I held up my hand to ask a question, introduced myself, and asked “If, say, I were accused of sexual harassment by a female employee, what specifically would be the Company’s action toward me for the duration of the complaint?” It turned out that, while I would still be on the Company payroll, I would be suspended without salary, my sick leave and vacation would stop accruing, and I would not be allowed on the premises until the matter had been resolved. Oh … and did I tell you? … my security clearances – all of them – would be, not revoked, but suspended, pending resolution. Professionally, I would be like Lazarus in his tomb waiting for Jesus to shout “Come forth!” Then I asked a second question:  “Would the Company provide me with defense counsel?” Answer: “No”. Final question:  “Would my attorney and I be allowed to confront and question the plaintiff(s)?” Answer:  “No … the Company would question plaintiff(s).” I comforted myself by imagining the great view of the bottom of the bus the Company would throw me under.

The result was twofold:  (1) I directed the travel department to always get rooms for men and women on our overseas trips that were as widely separated as possible – not just separate rooms, but separate buildings, which was awkward if we were staying in, e.g., BOQ housing on military bases, as we sometimes did; (2) when I asked a woman employee into my office for a private discussion on any subject, I asked my secretary / office manager to the meeting as a third party, and required Marcia to sign a non-disclosure agreement about what she heard; either that, or I left the door to the office open. If the door were closed, I wanted a third party there as a witness. In light of developments vis a vis the #MeToo movement, I regret none of the above. In fact, it seems even more prudent in retrospect than it did at the time, because I have never had professional relationships with any group since where there was comparable mutual trust. As it turned out, the people I worked with took these arrangements in stride, and the group understood my rationale for mandating them. I never had to worry about the economics of mounting a legal defense.

But not everyone has that luxury. Just last night, I heard on NPR a discussion of due process by a panel of two women, both lawyers, who rather breezily, I thought, skated over the predicament of a man who was not as lucky as I, and who would have to defend himself against a serious charge of sexual harassment. Both women pointed to Harvey Weinstein and Matt Lauer as examples of men who would not be harmed financially by the cost of retaining defense counsel. They did not, but could have also pointed to Bill Cosby as another example. As I listened to them talking to the panel-discussion moderator, I often wondered if the two women really believed that all men were as fortunate as Weinstein and Lauer in being able to afford to defend themselves – in other words, in being able to afford the due process whose importance Trump correctly emphasized. We would do well to remember two salient facts:  (1) according to the 5th and 14th Amendments, everyone, without exception – even people who are guilty as sin and twice as black, even Weinstein, even Lauer, even Cosby – are entitled, as a matter of constitutional law, to due process as requisite to the deprivation of life, liberty, or property; but (2) due process is not free process:  it costs. And the cost may be north of $1000 an hour for a really competent defense. Even if a man were exonerated, he could easily end up being the most innocent man living under the freeway.

As to free speech … as Matt Damon recently discovered, the making of fine-tuned distinctions can be personally costly. We can all be duly thankful that the people who do not distinguish between a pat on the butt and stat rape were not likewise in charge of drawing the line between second-degree manslaughter and capital murder.  Or between a fender-bender accident and attempted vehicular assault. Otherwise, as Joan Vennochi says in the Boston Globe “everything, from neck rubs to violent rapes, are actions perpetrated by evil misogynists deserving of professional death by firing and perpetual humiliation.”  As Matt Damon also found out, the attempt to make those distinctions – the same distinctions that are the reasons district attorneys do not ask for the death penalty for second-degree manslaughter – is often penalized by feral public opinion. Damon’s problem is that he knuckled under and did not stand his ground. In fact, he apologized for his exemplary rationality, promising in future to simply STFU. One hardly need speculate on the reaction that would be evoked if, say, Trump or Mitch McConnell or Paul Ryan or Fox and Friends advised the same STFU response from, say, Black Lives Matter activists. Hopefully, BLM would evince a stouter backbone that Damon.

The entire #MeToo controversy is educational, however, in that it does point up what I think is probably the most serious weakness of American constitutional government. The men who framed the US Constitution were without exception loyal sons of the European Enlightenment. They valued rationality, moderation, prudence … in general, thinking before you act.  Furthermore, they had almost all – Alexander Hamilton may be an exception -- been raised in family cultures that valued these same priorities. So it may well be that, perhaps unthinkingly, in the very human but critically mistaken belief that all their countrymen were pretty much just like them, they assumed that those countrymen shared these same values.

But then, both the Founders and the Framers were without exception very wealthy men, which is to say, they could afford the luxury of standing on principle. Not everyone is so fortunate, a point which was apparently lost on the lawyers who participated in the above-mentioned NPR discussion. Consequently, Founders and Framers alike underestimated how easy it can be to evoke the passions of the mob, passions whose consequences can redound to people of less ample means. Granted, no one has been lynched. Granted, no one has been tarred and feathered. But as kissing-cousin attitudes I cite the hysteria with which Matt Damon’s temperate and temporizing remarks were greeted. Even someone as normally sensible and rational as Matthew Dowd, on George Stephanopoulos’ This Week recently, said the main lesson he drew from accusations of sexual assault was – note the lack of nuance or qualification – “Believe the women”. One hesitates to imagine the all-white jury in To Kill a Mockingbird taking to heart Mr. Dowd's advice. I am more than willing to “Believe the women” in the cases of Weinstein, Lauer, Cosby, et al. Now, if someone can convince me that “Believe the women” is a universal rule to follow in all cases of sexual assault / harassment, with no admixture of ambiguity, least of all of anything as persnickety and bourgeois as reasonable doubt, then we can dispense with trials altogether and proceed directly to sentencing.

Actually, contra what I said in the previous paragraph, at least one of the Framers did have at least an inkling of the consequences of passion run amok:  James Madison. During the debate on the advisability of appending an explicit Bill of Rights to the US Constitution, Madison, in a 1788 letter to Thomas Jefferson, said that, while an explicit Bill of Rights could serve as a good didactic tool for the learning of citizenship, in terms of actually impeding unrestrained passions, all Bills of Rights and Constitutions would be “parchment barriers” to popular rage.

At this point in the public discussion of sexual assault and harassment, if I were forced to choose who poses the greatest danger to constitutional rights of free speech and due process, Donald Trump or the #MeToo movement, I would have to flip a coin.

James R. Cowles


US Supreme Court ... ... CC BY 2.0
Due Process road sign ... Nick Youngson ... CC BY-SA 3.0
14th Amendment (pages 1 and 2) ... National Archives ... Public domain
5th Amendment ... Nick Youngson ... CC BY-SA 3.0

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