What keeps us from jailing the innocent and freeing the guilty? A little thing called due process; the government must follow established legal procedures when prosecuting crimes. People are entitled to formal charges, legal representation, the presentation of evidence, a jury trial, and other guarantees. The 5th and 14th Amendments to the U.S. Constitution make it clear no one can be deprived due process, no one.
Someone tell President Trump. Earlier this year when he told the press he doesn’t know whether he is required to uphold these constitutional provisions, he wasn’t kidding. Since taking office, he has denied due process and overruled due process with abandon. Now he’s hoping to override a Colorado judge and jury and spring former Mesa County Clerk Tina Peters from prison.
This week on his social media site he wrote: “Tina is an innocent Political Prisoner being horribly and unjustly punished in the form of Cruel and Unusual Punishment. This is a Communist persecution by the Radical Left Democrats to cover up their Election crimes and misdeeds in 2020.”
He then demanded the U.S. Department of Justice do whatever was necessary to release this “hostage” from prison. Such statements reveal a willful disregard of the truth of what actually happened and due process, not to mention basic capitalization rules.
Last year, a Mesa County jury, likely a majority of Republicans given the location, found Peters guilty on seven counts for crimes committed while granting illegal access to a fellow conspiracy theorist to county voting equipment. This was not a victimless crime. Her quest to prove election fraud, which came up emptyhanded like every other one, cost taxpayers $1.4 million according to Republican County Commissioner Cody Davis.
Earlier this year, Peters’ lawyers launched, with the support of the U.S. Department of Justice, a bid in federal court to free her. A U.S. magistrate reminded her lawyers Monday that federal courts cannot grant habeas petitions unless the petitioner has exhausted options in state courts which she has failed to do. They have 30 days to show why their petition shouldn’t be denied. It doesn’t look good.
This attempt to free Peters was not unexpected. After all, Trump pardoned almost 1,600 people charged with assailing the U.S. Capitol on January 6, 2021, in an attempt to overturn the 2020 election results. In Trump’s words, they were merely “patriots” participating in “a day of love” who were being held “hostage” in a “grave national injustice… perpetrated upon the American.” January 6 cost taxpayers $2.7 billion, according to the Government Accountability Office. Every dime spent securing justice was flushed down the toilet thanks to those pardons.
When not overruling due process, this administration is denying it. Multiple courts have halted the use of the 18th-century Alien Enemies Act to deport Venezuelan migrants because of a lack of due process. It is quite likely that individuals innocent of association with the Tren de Aragua gang are now sitting in El Salvador’s notorious mega-prison having been deported there without due process.
While it can be frustrating to take the time to provide legal protections to illegal immigrants suspected of being in a violent gang, it is those very processes that keep the wrongfully charged, men like Kilmar Abrego, out of prison. Abrego, a working man and father who records show has never been charged with a crime in the U.S., denies allegations of gang involvement. A judge barred him from being deported there in 2019 and the Supreme Court has recently ordered the administration to facilitate his return to the U.S.
Venezuelans aren’t the only ones being denied legal protections. Hundreds of young people on student visas have been detained and deported without due process. Tufts Ph.D. student Rumeysa Ozturk had her student visa revoked merely for coauthoring an editorial in a student newspaper sympathetic to Palestinians. She was shipped off to a Louisiana detention center and held there for six weeks. Her lawyers are suing on First and Fifth Amendment grounds and an appeals court just ruled she be returned to Vermont.
Some Americans may be tempted to wave off these injustices because they happened to immigrants rather than citizens. They shouldn’t. A president who doesn’t know whether he must uphold due process, especially one who routinely threatens to prosecute his opponents and free his convicted allies, should make everyone a little nervous.
Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer.
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