Trump’s Due Process

The president understands the words to mean protections for his white guy buddies.

Donald Trump.
Donald Trump.
Photo illustration by Slate. Photo by Win McNamee/Getty Images.

Donald Trump has an interesting history with the notion of “due process,” and his position on the subject seems to have been updated again this week, this time in reference to gun ownership. As he explained, in an extremely twirly gun control meeting at the White House on Wednesday, due process in dealing with people who might have mental illnesses is, in fact, overrated. Just as Vice President Mike Pence was advocating “gun violence restraining orders” with the caveat that we should “allow due process, so no one’s rights are trampled,” the president broke in to note that actually due process is maybe crap.

“Or, Mike,” he blurted. “Take the firearms first and then go to court. … Because a lot of times, by the time you go to court, it takes so long to go to court, to get the due process procedures. I like taking the guns early. Take the guns first, go through due process second.

“They have so many checks and balances that you can be mentally ill and it takes you six months before you can prohibit it,” the president added.

Conservative media acted with horror and alarm. Trump boosters like Sean Hannity pretended it didn’t happen. Then everyone pretended it didn’t happen. Then Trump and the NRA reunited Thursday night to let us know it wasn’t really true. Perhaps for the first time in history, Second Amendment fantasists can now understand where having a loaded gun in the hands of a truly unstable person can lead.

More interesting, though, than the president’s vague and unbankable policy pronouncements is this further evolution in our possible understanding of his understanding of what “due process” might mean.

This is the same Trump who can’t stop talking about executing suspected drug dealers. It’s the same Trump who pardoned convicted former Sheriff Joe Arpaio and the same Trump who persistently threatened to jail his political opponents, including Hillary Clinton, if he won the presidency. This is the man who spent a small fortune taking out ads seeking the death penalty for the Central Park Five before they had even been tried and refused to acknowledge when they were exonerated.

So, when it comes to “due process,” I don’t think those words mean what he thinks they mean.

What due process rights actually mean is that the state can’t take away someone’s “life, liberty or property” without adequate legal safeguards and protections. That’s what Trump was belittling this week—the silly “checks and balances” that get in the way of confiscating guns without notice or an opportunity to be heard. When the president talks about using the force of the state to seize property or incarcerate someone without any legal recourse, he is attacking a core pillar of legal and constitutional law. The government can’t take your stuff away just because the president feels like it.

Now consider the many times Trump has used the absence of “due process” to justify his own action and inaction. The most famous recent example would be after his former staff secretary, Rob Porter, resigned following accusations by two ex-wives of domestic violence. Trump—who has himself been accused multiple times of sexual assault and abuses—tweeted his sympathy: for men who are accused of harming women.

“Peoples lives are being shattered and destroyed by a mere allegation,” he tweeted. “Some are true and some are false. Some are old and some are new. There is no recovery for someone falsely accused - life and career are gone. Is there no such thing any longer as Due Process?”

Later Trump’s budget director Mick Mulvaney suggested that the tweet was likely referencing Steve Wynn, the casino mogul who had to step down as finance chairman for the Republican National Committee when it was reported that he also allegedly sexually harassed female employees over years. While we may never know which of these two alleged predators had so moved the president to remember that due process is an actual thing, it wasn’t hard to miss the fact that for Trump it is something the world—not just the state—owes powerful white men who stand to lose their jobs.

There’s an obvious pattern here. It was only recently that the president defended and endorsed Roy Moore, who was credibly accused by multiple women of committing sexual misconduct against them when they were children and young adults. In that case, Trump wanted due process to protect Moore not from incarceration or unjust loss of property, but from the chance that he might lose a Senate seat. Sarah Huckabee Sanders offered the White House line in defending Moore, doing grotesque backflips to protect a credibly accused child abuser with claims that mere allegations can destroy entire (men’s) lives.

“Like most Americans,” she said at the time, “the president does not believe we can allow a mere allegation, in this case one from many years ago, to destroy a person’s life. However, the president also believes that if these allegations are true, Judge Moore will do the right thing and step aside.”

There’s also the time that Trump’s former campaign manager Corey Lewandowski was caught on tape assaulting a female reporter. Trump’s answer then: “How do you know those bruises weren’t there before?”

“Due process” to Trump, then, is mostly just something owed by newspapers, complaining women, or voters to his buddies. This definition is what the rest of us might legally define as “blind and unflinching fealty.” But there’s a different lesson to be gleaned from his revelatory gun discussion this week. In an inadvertent gaffe, he used the words due process correctly, meaning taking guns from people without legal protections or procedures in place. He also used checks and balances disparagingly to mean actual constitutional protections against what is considered government overreach.

When Donald Trump misuses legal language to manipulate law and misrepresent truth, it’s easy to see how the rule of law means nothing to him. Funnily, when he uses legal language precisely and correctly to assert that he wants to use state authority to impair the rights of gun owners, he’s actually revealing a much more potent and frightening disdain for the rule of law and the Constitution. And honestly, no more due process is necessary to understand that.

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Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.