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.
