Last month Nancy Pelosi took her star turn as House Democratic Leader at an event unveiling the so-called Title IX Protection Act, an effort to codify in federal statutes Obama-era guidance on adjudicating sexual-assault cases in higher education. This Obama guidance famously resulted in the creation of a national network of campus kangaroo courts that systematically and comprehensively denied male students the most basic due-process protections in the face of serious charges of misconduct.
Campus after campus — responding to the Obama administration’s dictates — set up tribunals that denied male students access to the evidence against them, denied them the opportunity to fully and fairly cross-examine accusers, placed them in double jeopardy, and often created definitions of “sexual assault” or “sexual misconduct” that were utterly at odds with prevailing law. Dozens of federal judges from across the political spectrum have ruled against these college processes, sometimes finding not only that they strip accused students of their constitutional rights, but also that they’re so biased that they potentially represent a form of gender discrimination against male students.
What are the first words out of her mouth? “We are strengthened by due process.” What’s next? “John Conyers is an icon in our country.” She expressed confidence that Conyers would “do the right thing.” Later that day Conyers stepped down from serving as ranking member of the House Judiciary Committee. He remains in Congress.
An accuser has 180 days to bring her complaint to Congress’s Office of Compliance and then is subject to 30 days of mandatory counseling. She then has 15 days to decide whether to mediate the case. If she doesn’t mediate, the case is closed. If she does mediate, the member is provided legal counsel at taxpayer expense while the accuser has to foot the bill for her own lawyer. If mediation fails, the accuser then has 30 days to file her lawsuit. It’s an extraordinary system, one that should shock the conscience of American citizens who face completely different rules in their own workplaces.
To be fair to Pelosi, she does favor reforms to strengthen protections against harassment by members of Congress, but her response still reminds us how politicians’ extraordinarily inflated sense of importance insulates them from accountability or even from the most casual demands of consistency. From Ted Kennedy to Bill Clinton to now John Conyers it appears that the “icon” defense is alive and well. It’s a virtual mathematical formula, power versus progressivism equals immunity plus praise.
Trump is mocked for claiming that he could shoot a man on Fifth Avenue and not lose support from his base. Well, Kennedy proved he could drown a woman in Massachusetts and still be one of the most beloved liberals in the Senate. Bill Clinton got his “one free grope” and perhaps even one free rape. John Conyers and Al Franken are less powerful but still progressive. Thus they survive and soldier on when virtually any other “icon” in Hollywood, the media, or corporate America would be long gone — especially now, in post-Weinstein America.
Not to be outdone, the Alabama GOP establishment — with a huge assist from President Trump — is applying its own version of the “icon rule.” Power plus conservatism (or, more precisely, power plus liberal tears) grants its own sort of immunity — one that applies not just to the GOP’s own roguish POTUS but also to a man facing multiple credible claims of sexual misconduct with teenage girls. Time and again both parties are propping up men you wouldn’t hire to manage the local fast-food joint, much less run a corporation of consequence.
None of this should be hard. Due process applies when the government attempts to deprive a person of life, liberty, or property. Thus, when the government initiates an effort to deprive a person of a liberty or property interest (such as a college education), then the requirements of fair notice and a fair hearing lock into place. When voters are weighing candidates — or when politicians are deciding whether to publicly call for the resignation of a colleague or the withdrawal of a candidate — then due process is irrelevant. They make their judgment on a case-by-case basis weighing the available evidence and information. Pelosi, by contrast, is seeking to strip due process from young, non-iconic men when their liberty interests are at stake while at the same time rigorously and wrongly applying due process to her mere opinion about Conyers’s political fate.
At this moment our nation’s political establishment faces a stern test. Can it apply to itself the same standards it punitively imposes on the rest of America? Can it defend the Constitution while maintaining high standards for personal conduct? Nancy Pelosi is failing her test. Will anyone pass?
— David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.