What is Due Process Anyway?

The 5 Minutes of Law School You Need to Discuss Trump's Deportations, J6, and Other 'Constitutional Crises'

Responding to criticism around his El Salvador prison visit to the ‘illegally deported’ wife-beating MS-13 terrorist that was ‘illegally’ residing in the United States, Senator Van Hollen boldly announced: “I’m not defending the man, I’m defending the rights of the man to Due Process” and “if you deny the constitutional rights of one man, you threaten the constitutional rights and due process for everyone”.

Make no mistake, conservatives have been demanding democrats acknowledge this legal distinction for years—requesting that, in the case of Donald Trump, they distinguish between the man and his flaws, and his inalienable entitlement to certain fundamental rights and dignities. This distinction, which is essentially just a recognition of the basic guarantees of Due Process (“DP”), is what conservatives were often discussing when shouted over in conversations about the various Trump prosecutions, and the treatment of the J6 prisoners. But Conservatives have little cause to celebrate this breakthrough in constitutional literacy on the modern Left, as the context in which the Left now wishes to discuss DP is in one of the few contexts where conservatives would rather jump off a bridge.

Is this a run-of-the-mill case of modern political hypocrisy . . . or is it possible that one party’s idea of DP violations is not quite the same as the other’s, and all this is just a matter of conveniently muddying the water around their own misdeeds?

So What is Due Process Anyway?

In simplest terms, DP is a fundamental principle of fairness that ensures that individuals are treated justly by the legal system and that the government’s actions are not arbitrary or unreasonable. DP basically requires the government to follow established legal procedures to ensure fairness in the handling of all legal matters and to guarantee individuals the right to a fair hearing and protection from arbitrary or unfair government action.

There are two main types of DP: Procedural and substantive. Procedural DP focuses on the fairness of the procedures used to resolve legal disputes, ensuring that individuals are treated according to established rules and have a chance to be heard (e.g. the presumption of innocence, the right to an impartial jury, a speedy and public trial, etc.). Substantive DP refers to the substance of laws themselves, ensuring that no law unduly interferes with fundamental rights and liberties, and preventing the government from passing arbitrary or unreasonable laws (e.g., ensuring laws won’t violate a constitutionally protected right).

In a nutshell: Procedural DP requires notice and a right to be heard, and substantive DP requires fair and reasonable laws.

Now, just because DP is a thing, does not mean the Government is paralyzed from action whenever a DP right is implicated. As illustrated by the simplified DP Flow Chart below, for government action to not violate DP, it cannot infringe on or substantially impair the exercise of a right absent a compelling government interest and narrowly tailored means to meet that interest. For less fundamental rights, the government action must merely satisfy the lower threshold of having a legitimate purpose and being rationally related to that purpose.

“Compelling Government Interest” typically means the interest must be of the utmost importance, such as national security or protecting fundamental rights. “Narrowly Tailored” means that the law or action taken to achieve the compelling government interest should be the least restrictive means of achieving that goal. For example: the government has a compelling interest in protecting children from crime, but if their solution is to lock every child in their homes until adulthood, that action will be deemed unconstitutional because it obvious violates civil rights while not being narrowly tailored to the problem—less restrictive means of pursuing that same interest might include increasing penalties for crimes against children, expanding police presence in residential towns, or perhaps creating curfews.

To just name a couple of many examples where courts would likely uphold government action as narrowly tailored to a compelling government interest: A law restricting certain types of information access may be considered constitutional if it's justified by the compelling interest of protecting national security; A law restricting the ability to travel to certain countries during a time of war may be considered constitutional if it's justified by the compelling interest of military necessity.

Essentially, the important thing to keep in mind when evaluating a person’s DP claim is that regardless of how ‘wrong’ and ‘bad’ that person is, and what they are accused of, certain fundamental rights must apply absent a compelling government interest and narrowly tailored behavior to meet that action. Further, fundamental fairness dictates you must generally be on notice when your rights are threatened, and have an opportunity to be heard.

So, What Were Conservatives On About When They Cried Due Process These Past Few Years?

Let’s take, for one instance, the J6 defendants.

Recall: DP is concerned with fundamental fairness, ensuring that the government follow established legal procedures to protect fairness and prevent arbitrary action. The established legal procedures will dictate exactly what process is due. Even if we fully ‘steel-man’ the argument against the J6ers—and declare them all insurrectionists that were at the capital with the express interest of burning it to the ground—certain inalienable substantive and procedural DP rights should have applied to their charges, arrests, detainment, trials and sentencing.

The amount of DP violations at basically every one of these junctions cannot be understated. To just name a few:

• All criminal defendants have a well-settled 5^th and 14^th Amendment right to all exculpatory evidence (i.e., evidence that could prove the defendant’s innocence, be used in the defendant’s defense or in any way undermine the prosecutions case against them) . . . YET the Democrats in congress kept the 41,000 hours of capital surveillance footage from the public and J6 defendants for over two years, while many languished in prison, barring the public and the J6 defendants from any of that evidence which could be used to demonstrate a basis for their innocence. One person clearly robbed of benefit of this exculpatory evidence is Jacob Chansley—video evidence proves he did not break into the capital, but was invited in by a capitol police officer that helped him open the door and took him on a tour of the building.

• All criminal defendants have a well-settled constitutional right to a fair and speedy trial (typically, this means you must learn of the charges against you within 30 days and trial must begin within 70 days of that indictment) . . . YET many J6 defendants were jailed for years, without a trial and sometimes in terrible conditions, when the vast majority were nonviolent, merely charged with trespass. Take, for instance, hundred of people that were still awaiting trial for the entire 4 years since the events of J6, up until Trump’s pardon—many of which, again, having had no opportunity to see the evidence to defend themselves, and having only been charged with a trespass on federal property (Generally, a misdemeanor which can result in up to a year in jail).

• Due process prohibits the punishment of pretrial detainees, and other cruel and unusual punishments violative of the 8^th Amendment . . . YET many J6 defendants were jailed and tortured for years, all without any trial, opportunity to present a defense, or even a finding of guilt. J6 defendants were kept in a separate units with mold on the walls, brown water and generally unsanitary conditions, subjected to 23 hours a day of solitary confinement, imprisoned with no access to visits for over a year, and denied adequate food, medical treatment and religious services. Bear in mind: international law recognizes 15 days or more of 22 hours of solitary a day as cruel and unusual punishment, yet numerous J6 defendants (like John Strand, Ryan Samsel) experienced months of that. Individual stories show the depth of the cruelty: One defendant committed suicide rather than go back to jail; another recalls a female guard who was so enraged with the J6 defendants that she unloaded several cans of mace in their cell, as the men dropped to their knees in pain and many had to be removed on stretchers.

J6 prisoner Ryan Samuel pictured in the room he was held in for 5 months in isolation.

So, given all these DP violations, you must be wondering: was there a compelling government interest for doing any of these things? Well, it’s certainly hard to imagine one . . . Seriously, can you think of a single compelling interest that is served through holding presumptively innocent people in cruel, torturous conditions and withholding from them the evidence and opportunity to make a case for their innocence? What’s more, can you explain how engaging in this government action is the least restrictive way to achieve that interest? Further, did they get a fair chance to be heard?

Obviously, where J6 defendants are concerned any DP ‘fundamental principles of fairness’ or concern that ‘individuals are treated justly by the legal system’ went straight out the window. The government neither followed “established legal procedures to ensure fairness in the handling or all legal matters” nor protected the J6 Defendants from “arbitrary or unfair government action”.

Yet, Van Hollen did not visit these Americans and say that although the capital riot was ugly and shameful, he was not standing up for “the man” but “the man’s rights.”

Are These the Same Sort of Due Process Violations the Left are Crying About Now?

Well, not really.

Again recall: DP is concerned with fundamental fairness, ensuring that the government follow established legal procedures to ensure fairness and prevent arbitrary action. The established legal procedures will dictate exactly what process is due. In the case of illegal aliens, the established immigration procedures reflect that very little process is due at all.

There are two avenues for deportations of illegal aliens: through immigration courts under INA § 237 (8 USC § 1227), and expedited removals as authorized by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Expedited removals basically allow for illegal aliens to be deported with essentially no DP protections—including no opportunity to dispute the deportation or have a hearing (signed by Clinton, and used by Obama to deport millions without hearing or public outcry). These only apply to individuals illegally in the country for less than 2 years. Typical immigration laws will apply beyond that 2 year window, and they afford certain, very basic DP protections to all noncitizens, whether illegally or legally in the U.S.: (1) they have the right to a hearing to challenge a deportation order; and (2) they have the right to find an attorney, but the government does not have to provide or pay for one.

Now, lets apply this to the face of the “DP rights for illegal aliens” movement: ‘Maryland Dad’ Abrego Garcia.

Garcia’s long-term U.S. presence likely made the 1996 expedited removal statute inapplicable, as he has had a documented presence in this country at least since 2019. Nevertheless, his illegal entry into the U.S. made him deportable under INA § 237(a)(1)(B), entitling him to the two DP rights mentioned above: (1) the right to a hearing to challenge his deportation order, and (2) the right to find his own attorney. Indeed, he did have the opportunity to exercise these rights, as he appeared before two separate courts, that both agreed he was deportable.

The facts are pretty straightforward. Abrego Garcia entered the U.S. illegally in 2011 and was issued a deportation order in 2019. Two previous judges found he was likely affiliated with MS-13. One immigration judge in 2019 found that Garcia had not sufficiently refuted evidence of MS-13 affiliation and was thus removable to anywhere other than El Salvador because of a threat from a rival gang. This “withholding order” essentially means that he was deportable, but only to a country other than El Salvador. What’s more, those with withholding orders are completely ineligible for a permanent residency status.

A withholding order, however, can be lifted in certain scenarios. If Garcia was criminally convicted, for example, the order would likely have been lifted and his deportation to El Salvador would have been proper—an alien does not have a free pass to stay in this country and wreak havoc, just because he maintains he can’t return to his old country. For the same reasons, even without a criminal conviction, Garcia’s gang ties would certainly have justified lifting the removal order. After all, at the time of the withholding order, Abrego Garcia’s gang was not yet declared a transnational terrorist group by POTUS. Indeed, White House deputy chief of staff Stephen Miller explained that when Trump declared the violent MS13 gang a terrorist organization, Abrego Garcia was no longer eligible for any form of immigration relief in the Untied States. An individual inadmissible on terrorism-related grounds is barred from nearly all forms of immigration relief—including withholding of removal orders.

What’s more, even if the withholding order was not lifted for that reason alone, a court very well should have thrown it out for the simple fact that any rival gang threat it was predicated on longer stands: Abrego Garcia was deported to a maximum security prison, not the violent streets of El Salvador, and El Salvador’s sharp crime reduction under Bukele’s anti-gang policies suggests Abrego Garcia no longer faces such persecution anyway.

Does this mean it was okay to deport Abrego Garcia without first formally checking the box of lifting the withholding order? No, technically not. Which is why SCOTUS acknowledges it was illegal to deport him specifically to El Salvador with that order in place. Accordingly, the U.S. government was ordered to “facilitate” his release from El Salvador and essentially redo his case properly. But “facilitate” was an intentionally weak word choice: SCOTUS cannot demand El Salvador comply . . . only that the U.S. will cooperate if El Salvador decides to let Abrego Garcia come back in, and then go through the proper procedure of lifting Abrego Garcia’s withholding order before deporting him again. When and if that happens, Abrego Garcia is free to allege the DP violation . . . but the question remains whether he would even succeed . . .

Given these possible infringements of fundamental rights, to determine if there is a DP violations we must return to the basic analysis explained above: was there a compelling government interest for doing any of these things? Was this the narrowly tailored, least restrictive means to achieve that interest? Was there a fundamentally fair opportunity to be heard?

Well, there are various compelling government interests here, all relevant to how suspect and impracticable it would be to essentially drag Abrego Garcia back here in order to dispose of the withholding order before having a “redo” of his deportation—the most obvious of which being the well-settled compelling state interest of national security, which is served by keeping out terrorists with no legal right to remain in the country. What’s more: can we really conclude that deporting confirmed members of a nationally-recognized terrorist group with no superseding legal right to remain in this country is not a narrowly tailored to the national security goals of removing terrorists? Good luck with that one . . .

Perhaps, Abrego Garcia did not technically have a meaningful opportunity to be heard on the withholding order issue, since it was never formally lifted, but he certainly had an opportunity to be heard on whether he was deportable. Twice. And deportable, he was . . .

Final Thoughts

Even if you successfully analyze a DP violation in the case of Abrego Garcia, it does not follow that we must overstep El Salvador’s authority over its own citizens, and drag Abrego Garcia to a U.S. court house to have a U.S. judge officially remove the withholding order, before shipping him back . . . At that point, what rights are we even protecting anyway? And why?

Especially since the withholding order—if miraculously upheld—would only protect Abrego Garcia from deportation to El Salvador, instead of a prison in another country.

Is not going through this precise process really a denial of rights that genuinely runs afoul of the DP concern for ‘fundamental fairness’ and ‘established legal procedures to prevent arbitrary action’?

More importantly: are these rights even close to the same rights the loudest Abrego Garcia activists quietly allowed the government to strip from the J6 Americans?

Yes, Senator Van Hollen, we are talking to you . . .