President Donald Trump and his allies have taken continuous and systematic aim at due process in America during his second term in office. The fundamental constitutional right may be at a breaking point.
The assault consists of a two-prong attack: undermining negative impacts to supporters who received due process and at the same time denying due process to those they oppose.
Trump began by pardoning more than 1,500 criminals jailed for their part in the insurrection against the U.S. Capitol on Jan. 6, 2021. Over the past four years, each person sentenced received full due process. Law enforcement engaged in thorough investigations to obtain arrest warrants. Defendants received legal counsel. Hearings and trials took place in courts before judges.
The process took years (some cases were still ongoing when Trump took office) precisely because those involved knew the importance of due process. It cannot be rushed. It must take precedence over expediency.
Trump destroyed that long, deliberate process with the swipe of a pen on his first day back in office. By issuing a blanket pardon to everyone involved, he made a mockery of the Constitution. He made the only law of the land absolute fealty to himself.
Don’t believe me? Look no further than Enrique Tarrio, the leader of the Proud Boys organization central to the January 6th assault. His group serves as “a tent for misogynistic, anti-immigrant, Islamophic and anit-LGBTQ+ ideologies and other forms of hate” and was told by Trump to “stand back and stand by” during a 2020 presidential debate. It took two and half years of court proceedings before the Department of Justice obtained a 22-year prison sentence for Tarrio.
He walked free under Trump’s pardon. Due process be damned.
Not only that, but Trump met with Tarrio at Mar-a-Lago. An indebted Tarrio now likely feels even more dedicated to Trump as well as immune from accountability. Historically that combination has led to violent atrocities in countries ruled by an autocrat.
In Colorado, Trump continually championed the cause of Tina Peters. After years of proceedings — much of which came at her request for delay — a jury convicted Peters of tampering with election equipment. Because she was found guilty under state law, Trump does not possess the power to pardon her directly. That has not stopped him from directing the DOJ to fight on her behalf in federal court and rage tweet in capital letters.
Trump even termed Peters’ imprisonment as “Cruel and Unusual Punishment,” apparently oblivious to the irony of sending people to notorious prisons in foreign countries without so much as a hearing.
That is the core of the second, more sinister attack on due process. Trump and his cronies have used immigration as a means of whittling away at a cornerstone in our system of government. They have exploited widespread racial antagonism and ignorance of the law to put cracks into the due process wall protecting us all.
For too many people in our country, it is easy to see the immigrants targeted by Trump as a dangerous threat. Trump has made his political career fanning those flames of distrust and hate; in the first speech of his 2016 presidential run he targeted Mexican immigrants as “bringing drugs … bringing crime … They’re rapists.” Consequently, they either do not care when immigrants’ rights are violated or applaud the apostasy.
Furthermore, many believe that immigrants do not have rights. Again, that is the work of Trump and his henchmen. For example, Kash Patel, the Director of the Federal Bureau of Investigation, just spent hours testifying before the U.S. Senate Appropriations Committee; during that time he refused to confirm that the FBI would follow the law under his leadership and resisted a proposal to investigate due process violations for immigrants swept off the streets.
In one striking passage, Patel responded to questions from Sen. Jeff Merkley, “Your position is every one of those individuals is afforded due process. I don’t know the answer to that.” That is a jaw-dropping moment. The head of the preeminent law enforcement organization in the country refused to endorse the constitutional right to due process.
When Merkley pointed to U.S. Supreme Court precedent and read the Fifth Amendment — which states “no person shall be … deprived of life, liberty, or property, without due process” — Patel responded, “It doesn’t say that.”
Not to be outdone, Trump’s White House Deputy Chief of Staff said the administration was considering suspending habeas corpus, the right to challenge detention by the government. In our history such drastic action has only been invoked in times of utmost peril: during the Civil War and Reconstruction and on a limited basis following the 1905 Insurrection in the Philippines and the bombing of Pearl Harbor.
If these broadsides work against immigrants, they will no doubt seek to broaden their scope of fire to American citizens in the future. That is precisely why some historians argue American democracy has already crumbled into a “competitive autocracy.”
Advocates and courts continue to work zealously to protect due process in our country. Unfortunately, they seem to be performing CPR on a swiftly dying right. If they cannot revive it, our country will be lost.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
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