What Many On The Left Get Wrong When They Talk About Due Process
In particular in the Kilmar Abrego Garcia case
It’s always great when one of your co-bloggers writes half of the post you were planning. This post was originally going to be titled “What each side gets wrong about due process.” The focus is the Kilmar Abrego Garcia case, though this has far-reaching implications given the Trump administration’s clear disdain for due process in immigration cases (or at least that’s currently what it appears to be limited to).
Thankfully, Steven’s post A PSA handles most of the first half. What people on the Right (up to and including the Vice President… who sadly is a Yale-trained Lawyer) are currently handwaving away is that it applies to everyone residing in the United States and US territories. “EVERYONE” in this case includes undocumented people living inside the US. This is something that the Supreme Court has confirmed numerous times, including in the decision for RENO v. FLORES (1993) authored by the late conservative jurist Antonin Scalia:
It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings. RENO v. FLORES (1993)
And while undocumented folks don’t get the same level of due process as citizens, they still are entitled to due process as spelled out by our laws. Even famed legal contrarian Jonathan Turley* recognizes this fact:
The Court clearly (and correctly) held that Garcia deserves due process and that this removal was a mistake. As I have previously stated, the Administration should have brought him back for proper deportation. I still believe that. [source]
So with that out of the way, let me get onto what the Left gets wrong about due process–or at least the way that many of them are discussing the case. Ironically, it’s a perverse mirror of the above issue–namely, that you don’t need to be a good person or innocent to get due process.
In my opinion, far too much of the discourse, especially on the Left, has focused on Garcia the man versus the rule of law.
In part, that is because many Republican politicians and officials within the Trump administration are making accusations about how bad a guy he is. I will note that when you look at their filings, where you can be sanctioned for making false claims, the Administration’s claims about Garcia’s alleged criminality are far less hyperbolic. This is in keeping with past Trump strategies to more or less lie to the public about stolen elections and then never raise those issues in court (where, again, there are consequences for telling lies).
The natural reaction to this is then to go on a hard messaging offensive against those claims. They are correct that Garcia was never found by a court to be a member of MS13 (and in fact, the officer who made that claim has since demonstrated that he has significant ethical issues). Likewise, while he has been pulled over and arrested at different times, he has never been convicted (or even prosecuted) of any alleged crimes. So claiming he’s a criminal is deeply disengenuous.
But here’s the thing–once again–EVERYONE should get due process. Full stop. And that includes criminals or people who do things we don’t like.
This is especially important because human beings are complex. There is significant evidence that at one point in the past, Garcia physically attacked his wife. Like many incidents of domestic abuse, his wife ultimately didn’t pursue charges, and the two apparently worked it out and are still married.
Likewise, as Turley points out above, Garcia was under a deportation order–just NOT to El Salvador.
Neither the fact that he attacked his wife in the past nor the fact that he was in the country illegally and under a deportation order in any way alters the fact that he is entitled to due process around his deportation hearings.
I write all this because we, as Americans (and this might be true of Western nations writ large) tend to get moral systems mixed up with legal systems. And that’s super dangerous. As I’ve written in the past, the thing that often unites the Left and the Right is the desire to punish people who deserve to be punished. What divides left and right is who each thinks deserves to be punished. It’s those impulses we see play out here: Only citizens deserve due process, or only good people deserve due process. Both perspectives are a rot on our civil society and the rule of law.
This matters because of the clear Machiavellian disregard the Trump Administration has for due process and the rule of law. Right now, the people who are facing the majority of the brunt of that are undocumented immigrants. If history is our guide and we look at other mass deportation efforts in our history, we know that legal immigrants and, ultimately, native born citizens will suffer from this as well.
And that’s also assuming that the Trump Administration will have the discipline to apply its ends justify the means disregard for due process only to immigration. Given the excesses we’ve seen in less than four months, and their prior history, I fully expect this disregard to spread to other areas of Federal Law Enforcement.
In the meantime, I beg my fellow travelers on the Left not to fall into the trap of arguing that Garcia is a good man or, in some way, that his poor treatment by the federal government somehow entitles him to due process. Or even throwing around words like “innocent” regarding this case.
I hope fellow travelers on the Right can also join in on this. We don’t need to agree on other criminal legal system things (though, from personal experience, there are many spaces for collaboration and agreement). We all need to be fierce advocates that EVERYONE residing in the United States deserves due process, regardless of what they may or may not have done.
* – I am citing Turley here as a matter of fact, not opinion. It’s not whether or not I agree with Turley’s opinion of the case. It is under the law and the text of the Supreme Court Ruling in Garcia that Turley is reiterating facts. This should also not mean that I agree with everything that Turley writes in the article, in particular his interpretation of the Constitution as not providing a remedy or check for this situation. That is an opinion, though it’s also one that may ultimately be rendered by the Supreme Court when it ultimately hears this case.
I think you are bothsiderism here a bit. From what I read, liberals aren’t really claiming Abrego is “innocent” (whatever that means) but that he is entitled to due process precisely to determine the truth of the allegations against him. The evidence I have read of him being a gang banger is indeed pretty thin ( a Bull’s jersey? Really?). The wife abuse accusations seem to have some heft, but even here we are don’t know exactly what happened. The bottom line is that the government engaged in illicit behaviour that it should try to rectify but it isn’t. I wonder if the judge can enjoin all deportations to El Salvador for obvious reasons until the situation is resolved.
I have observed a couple of times on other sites that Van Hollen made an error by making Garcia “the husband, the father” the focus of his concern about the case instead of keeping it on the core issue, namely that the regime believes it has the right to imprison people for life without a trial or right of appeal. Unlike some arcane legal principles that might be hard to get across to ordinary Americans, this is surely straightforward: Trump is doing exactly what other police states do. The courts have even made Democrats’ task easy, by condemning the deportations in unusually plain language.
The truth is that many of the men imprisoned in El Salvador have apparently been treated even worse than Garcia. He at least was subject to a deportation order, just not to his home country. If reports about the others are correct, many/most have neither a criminal record nor deportation orders. Making Garcia (who is hardly a sympathetic figure) the center of protest opens a gaping opportunity for Trump eventually to bring him back, get a friendly judge to confirm the deportation order, and send him off to Guantanamo Bay or wherever. The risk in this scenario is that the protests would appear to have been a lot of fuss about nothing, and it would be more difficult to keep public interest in the issue of principle.
I don’t think people are arguing he’s a good man or innocent. Rather–even from a draconian standpoint–he doesn’t deserve to be locked away for the rest of his life in an inhumane gulag because he was in a country illegally or once drove some other guys who were in the country illegally. It’s insane and evil to think that this is a just punishment, regardless of the Constitution. Even El Salvador, a police state which has allegedly fixed its crime via fascism, at least was in the grip of violence. America is creating the same police state because people crossed the border to work jobs and smug college kids had protests.
People are talking innocence because none of our recent history merits this. None of it. And if you think it does, you are a defective human being.
I think the claims of Garcia being a good man are more than anything else an attempt to as wide a group as possible to take up his case. Far too many people take the position that once someone is convicted of a crime, they deserve whatever they get. As a result, Democrats are claiming he is a good man so that those people cannot use it as an excuse to not care about him.
@Modulo Myself:
Hey, now. I’m a defective human being. Please do not lump me in with those people.
I haven’t really heard/read statements that Garcia is a good person, although a cynic may try to spin the relevant statement, “Garcia has not been convicted of a crime,” into a claim that he’s a good person.
I’ve heard bits and pieces of the many things Van Hollen has said in the last couple of days, and I think he’s threaded the issue pretty well. While there have been words and pictures that could be construed as his support for Garcia the man, and the maga types will no doubt embellish those, he’s been fairly relentless at framing the issue as one of due process rights for everyone living in the US.
The administration and their allies are the ones most vocal about Garcia the man, and it’s rich that they should bring up domestic abuse allegations, which were not sufficient to disqualify the Sec of HHS, Sec of Defense, president, and Lord knows how many other administration officials.
As the Circuit court opinion yesterday stated,
@Matt Bernius
This has always been a complex intertwining of the two: rational expediency to manage complex societal relations, and, while being motivated by some sort of moral “code” beyond mere expediency — even if that moral code is simply a sense of “fair play.”
Your main point, the universal application of “due process” is however worth underscoring as you have done here.
@Kurtz:
EXACTLY!!!
Matt, the last thing we need is bothsiding.
Maybe we run in different circles of liberals, but every one I talk to has basically said “I don’t give a shit if he was the capo di tutti capi of MS-13, the Constitution still requires due process and he didn’t get it.”
Looks like we’re having site issues this morning. We, your loyal commenters know you have a day job, Matt, and appreciate your efforts. And James isn’t even in town.
Lots of fun with Harvard. The admin is blaming Harvard. Before writing that nasty reply to our nasty letter, they should have called us to ask if that very official looking nasty letter was really official.
On topic here. Yes, this is typical bothsides in that GOPs do an order of magnitude or two more of arguing Abrego Garcia’s guilt than Dems do his innocence. That said, Matt is correct that it’s a tactical risk for us to talk about innocence as it may well turn out he’s not, and GOPs will crow about being right if he’s guilty. But on the other hand, when has what Dems actually did influenced what GOPs say Dems did?
The real bottom line here is that this case is resonating more widely than I would have guessed. There seem to be a lot of Trump voters who recognize this is crap. Between this, the blatant corruption, and the clown act, Trump seems to be pissing people off way faster than his first term.
Today is the 250th anniversary of “the shot heard round the world.” Perhaps today’s demonstrations will be remembered as our modern equivalent.
Thanks for the feedback on the perception that I am “bothsidesing”–i am busy for most of the day but I will try to respond to that later.
One thing I agree on is that I should have strongly signaled that I see no equivalence between the two sides–with the denial of due process to a group of people based on their status (and counter to the Constitution) to be incredibly worse.
@SC_Birdflyte:
I wish they’d fire the shit heard round the world.
The Garcia case is politically awkward for democrats, but with respect to legal principles, the case is perfect. Due process is afforded to the worst of us.
This case is symbolic of the far left’s migration from neutral application of legal principles. It’s not enough that Garcia is entitled to due process. Factions of the left require virtuousness. It’s like content-neutrality and speech. Some lefty factions don’t seem to understand that offensive speech is the speech that most requires First Amendment protections. Imposing tribal morality on civil rights produces gobbledygook.
I’m treating this as Saturday Open Forum. I’ve been seeing TV ads for Amazon talking about all their small company sellers. I had assumed they were seeing backlash against Bezos’ chicken spit actions at WAPO and wanted to make themselves look like main street mom and pop small companies. According to a column at NYT (gift) it may be more a matter of obscuring their Chinese connections.
In fairness, I imagine Shenzen may have a main street.
@gVOR10:
I remember Shenzhen as the place my Korean university employer enrolled a couple dozen students from one term, so I looked it up. The innertubes tell me the city is sometimes referred to as China’s Silicon Valley.
It definitely has a “main street.”
Moralizing about politics is a long-standing American tradition. Very long-standing.
I do not think it is being a “lefty” or a “righty” is what amplifies one’s need to moralize and invent virtues in criminals so as to justify one’s advocacy. I think it’s the level of partisanship one has.
I mean, Trump is the guy who said, “there are good people on both sides”. He pardoned a bunch of the 1/6-ers. Their righteousness is proclaimed. And yeah, there are definitely remarks about Garcia, too.
It’s got nothing to do with right-left and everything to do with partisanship. It could be a game of escalation, with one group of partisans fearing the strategy, seeing it as powerful, and thus emulating it.
Morals and virtue (and wokeness, while we’re at it) are not pejoratives, they are positives. Certain Americans should reconsider this strange new fad of sneering at moralism and turning up their noses at virtue.
The wrongheaded idea that unlike our provincial forebears, we’re too cool and sophisticated to bother with such quaint niceties might be why so many — particularly adolescent-minded males — are adrift and turning to rapists like Donald Trump and Andrew Tate for the ethical guidance and moral clarity they’re apparently not getting from parents, guardians, and friends.
As to Trump disappearing people into foreign torture camps without due process like Hitler did:
Pretty similar to what I’ve been seeing online and from other anti-MAGA electeds. Like Mikey, I haven’t noticed any undue focus on Garcia’s alleged virtue, crowding out broader fears about due process.
(But I don’t think such “Not All Men” ripostes are needed because this post doesn’t read like bothsidesing — not in the way we define it as drawing a false equivalences that flattens important differences. Seems more like rhetoric, in this case an exaggerated frame to make a point about due process. It’s a choice — the point could also be made without left/right framing. But “the left” here doesn’t seem like it’s meant to be taken so literally.)
@DK:
This was my intention.
The linkage made sense in my head but I don’t think I did enough work clearly connecting the dots.
Agreed. You are right that it is a irrelevant for present purposes whether Garcia is a good man or not. He is entitled to due process, which is a fundamental right. Without due process, the rest of our rights are emasculated because they can’t be effectuated.
Surprisingly, some people seem to forget that due process applies even to folks who are accused of criminal activity!