Trump's Due Process Double Standard

The president regards legal rights as a form of political correctness—unless he or his allies are the ones targeted by law enforcement.

Carlos Barria / Reuters

How President Trump feels about due process appears to depend on whether he or his associates are the ones being investigated.

Monday, after the news broke that federal investigators had raided the office, hotel room, and home of Trump's longtime personal attorney Michael Cohen, the president called it  “an attack on our country, in a true sense,” and “an attack on what we all stand for.”

It was a curious reversal for a politician who, from the start of his campaign, has ridiculed due process protections as mere "political correctness," but one that has become so common over the first two years of his presidency that it now goes practically unremarked. As a candidate in 2016, Trump declared that “an attack on law enforcement is an attack on all Americans." But no chief executive has attacked law enforcement more frequently than Trump.

Much of the president’s rhetoric assumes that the arms of the state are infallible, and that its targets are assumed guilty. Trump has encouraged police to abuse or "rough up" criminal suspects; he has complained that Chicago's police force, facing accusations of racial discrimination and brutality, was being too "politically correct" to stop a rise in homicides; he called for the execution of the Central Park Five and insisted they were guilty even after they were exonerated; and supported the death penalty for drug dealing. He called for a ban on Muslims entering the United States; he has called for killing the families of suspected terrorists; he insisted that Muslims accused of terrorism should be tortured.

The president is happy to characterize entire groups of people, such as black Americans, Latinos, and Muslims, as potential criminals. He began his campaign characterizing Mexican immigrants as "rapists" and drug dealers; exaggerated crime statistics involving black people; and accused Muslims of hating Americans and celebrating acts of terrorism.

It’s not that the president believes that systemic bias in law enforcement is impossible, or that he doesn’t understand the reason why it’s harmful to the cause of justice. It’s that the only systemic bias in law enforcement that he identifies or criticizes is the supposed bias against him and his allies. When it comes to racial or religious discrimination, no amount of empirical evidence seems sufficient, but no proof is necessary for the president to be absolutely certain of the innocence of his supporters.

When it comes to Trump's associates, the president becomes a self-styled expert in due process, and a devotee of the idea that one is innocent until proven guilty—or in some cases, even after. Trump has called Robert Mueller's special counsel investigation into Russian interference, which has already led to multiple guilty pleas of former Trump associates, a "witch hunt;" described the prosecution of his former National-Security Adviser Michael Flynn "very unfair;" described his former campaign manager Paul Manafort, charged with financial crimes by the special counsel as "a good man;" and he pardoned Arizona Sheriff Joe Arpaio after the sheriff was held in contempt of court in a case involving racial profiling of Latinos.

Similarly, when Trump’s allies have been accused of wrongdoing but not charged with crimes, Trump has insisted on giving them the benefit of the doubt, even in the face of strong public evidence against them. After a number of women went public with accusations that the Alabama Republican Senate candidate Roy Moore sought sexual relationships with them when he was an adult and they were teenagers, Trump supported Moore, saying, “Look, he denies it. He denies it.” When photographs emerged supporting accusations that White House aide Rob Porter had physically abused his ex-wives, Trump backed Porter. "He says he's innocent, and I think you have to remember that."

This benefit of the doubt is not applied to Trump’s critics and political rivals, for whom an accusation appears as good as a conviction. From Hillary Clinton to James Comey to Andrew McCabe to Susan Rice, anyone the president sees as a threat is at risk of being characterized as criminal. During the 2016 campaign, crowds chanted, “Lock her up!” as Trump himself threatened to throw Clinton in prison if elected.

These discrepancies are not merely verbal. They have guided policy in the Trump administration, in many cases causing real human suffering or abdicating the federal government’s responsibility to alleviate it. Under Trump, the White House sought to ban immigrants from several mostly-Muslim countries, the Justice Department has backed off its responsibility to oversee local police departments to ensure they are respecting Americans’ constitutional rights, the civilian casualties from drone strikes have increased, and immigration authorities have become more aggressive and indiscriminate in who they seek to deport.

Such rhetoric also points to how Trump wishes the law would operate. For those outside Trump’s privileged circle, the law bars no cruelty, brutality, or injustice. For Trump and those he considers his allies, no scrupulous adherence to due process is sufficient, and no crime can justify prosecution.

For the gilded class orbiting Trump Tower, impunity. For communities of color and others targeted by his rhetoric, and the public figures who draw his wrath, only the harshest sanctions will do.