Law & the Courts

The Corner

No, Roy Moore Is Not Entitled to Due Process Before We Believe the Claims Against HIm

I’m seeing this argument everywhere, including from people who know better. “I thought you conservatives believe in due process,” they say. “Roy Moore deserves due process before you ask him to step aside.” Never mind that this same claim comes from folks who’ve willingly believed any number of political scandals without the benefit of a trial or legal adjudication of any kind. Let’s assume, for the moment, that the objection is lodged in good faith. Does it have merit?

No. It does not. Constitutional protections for due process apply when the state is attempting to deprive a person of “life, liberty, or property.” That’s why we have trials before we render civil or criminal judgments. That’s why due process is mandatory before state-mandated punishment in campus sexual assault tribunals. As a general rule, when the state is attempting to deprive you of rights you’d otherwise enjoy, due process attaches. Here, there is no state action. Roy Moore will not lose his life, liberty, or property if voters reject his bid for high office. 

Due process protections, absolutely, positively do not prevent voters from evaluating the veracity of news reports and judging whether a politician is fit for public office. It was entirely fair for voters to analyze the available facts about Hillary Clinton’s email scandal or the available facts about the financial dealings of the Clinton Foundation without waiting for the outcome of a civil or criminal proceeding. It is entirely fair for members of the public to evaluate Juanita Broaddrick’s claims against Bill Clinton without a trial. Similarly, it’s entirely fair for the public to analyze the available facts about Roy Moore before deciding how to vote. 

Moreover, it’s not just appropriate to make judgments without the benefit of due process, in this case it’s necessary. The claims are so old that there seems to be no viable path to legal adjudication unless Moore himself initiates a defamation lawsuit. If he does file a complaint, the truth is a defense, and it would crack open the possibility of discovery, sworn testimony, and — potentially — a trial. But throughout even that legal process, the public can still make judgments about claims. We do it all the time. For example, I’d bet real money that the vast majority of people reading this blog post believe O.J. Simpson killed his wife — even though a jury found him not guilty. Why? They can weigh the facts for themselves.

While some calls for “due process” are ignorantly sincere, if you see it from an experienced politician, lawyer, or pundit, they’re really just the clever man’s way of applying a double standard. It’s a good way to coax good people into ignoring problematic claims while soothing their guilty conscience. It’s not that they excuse sexual misconduct, you see, they just want to wait for trial that will never happen. In the meantime they vote for a man they’d unequivocally condemn if he had a D by his name rather than an R. 

I don’t know if Roy Moore is guilty of committing the heinous acts outlined in the Washington Post report. At this point, however, I’m concerned to the point where I believe the claims are disqualifying, and I’m even more concerned after hearing his bizarre responses to Sean Hannity’s questions yesterday. I don’t have to wait for a trial to make that judgment, and neither do you. Due process does not apply.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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