The Trump Administration Attack on Due Process--and Why It's So Dangerous
This past weekend, the Trump Administration took over 100 men that it claims are members of a Venezuelan gang and sent them to a notorious prison in El Salvador. These men were not merely deported--they were sent to a foreign prison. They were not given any opportunity to contest their alleged links to the gang--or even whether they had legal status in the U.S. The Department of Homeland Security acted as the exclusive decisionmaker.
This is disturbing. To be clear, I have no problems with the deportation of undocumented aliens who are members of a criminal gang. Indeed, if you look at the legal filings by the ACLU and others who tried to stop sending these men to an El Salvadoran prison, even they do not contest the right of the U.S. to deport these men. Instead, the troubling aspect of this case is the lack of any due process--which is guaranteed under the Fifth Amendment to the U.S. Constitution.
This is only the latest attempt by the Trump Administration to take action against businesses and individuals without due process. Of most concern is that Trump Administration seems to be taking the position in these cases that that no process (whether in court or otherwise) is due:
The Administration fired thousands of probationary employees without any process, using a form letter alleging poor performance without even consulting with the employee supervisors.
The Administration took extraordinary action against three law firms--one of which was my old firm, Perkins Coie--again with no due process. The measures against two of the firms--Perkins Coie and Paul Weiss--will have immediate financial harm. In addition to suspending all security clearances held by the firms' lawyers, the Executive Order provides that the firms' employees cannot even be admitted to federal buildings or engage with federal agencies. Most disturbingly, the order orders agencies to cease doing work with the firms' clients. All of this was done without providing any due process.
Many of my MAGA friends (and yes, I do have MAGA friends) are thrilled with all of these actions because they dislike the victims of these orders. Apparently, Venezuelan gang members and White Shoe law firms are not very popular with these folks.
I would argue, however, that even if you applaud the actions, you ought to be very disturbed by the lack of due process. Why should you care? I can think of at least three reasons.
First, even honest and diligent government officials can make mistakes. When I was on the Board of the Florence Project, I was always amazed at the number of U.S. Citizens detained in DHS facilities for removal the Project represented. The number was not large, but it brought home to me the importance of giving detainees the right to contest removal before a neutral decisionmaker. This issue is at play in the Venezuelan case--the removal is based on the allegation that those being removed are members of a gang, and many of those removed (and their family members) insist that this is not the case. DHS is not infallible, and the factual basis of a decision to send someone to a notorious El Salvadoran prison ought to be proven.
Second, in the absence of due process, Executive action can be abused. When we have an Administration that has already sent thousands of identical form letters to probationary employees alleging poor performance--with no factual basis--the concern that extraordinary and unchecked power will be abused is not an idle concern. If the Administration has unchecked power to deport members of a gang, what is stop it from asserting they YOU are a member of that gang? Absent due process, you have no power to contest the allegation. And if the Administration has the unchecked power to financially harm law firms because of their role in cases involving Donald Trump, what is to stop the Administration doing the same to other law firms and businesses that take actions that the Administration does not like.
On this point, it is important to note that the fact that many of these actions will ultimately be stopped by the courts is not enough. Until the courts intervene, the damage is done. I have no doubt that lawyers and their clients are already being more unduly cautious in their engagements with the Trump Administration out of fear of what may come next. This chilling affect is dangerous for the rule of law.
Finally, even if you are cynical person unconcerned with the absence of due process, you ought to be concerned with the precedent these actions set for a future Democratic Administration. If the Trump Administration is successful in retaliating against people and businesses it dislikes, a future Democratic Administration can do the same--to YOU.
There is a reason our Constitution has a right to due process in both the Fifth and Fourteenth Amendment. There is also a reason why the Constitution empowers an independent branch of government (the Courts) to force these Constitutional requirements.