Below is my column in The Hill on the struggles of many in Washington in the worsening scandal surrounding Gov. Andrew Cuomo. We now have a second former aide alleging sexual harassment and Cuomo has denied the allegation. He is taking heat for saying that he was just being “playful” on such occasions. While the media is beginning to cover the scandal, it is nothing like the saturated coverage of the Kavanaugh controversy or the past Trump allegations. Indeed, Sen. Gillibrand and many of the Democrats who proclaimed Kavanaugh’s guilty are now insisting that both sides being heard. Others are far more measured on this scandal. For example, when CNN’s Dana Bash (who confused her colleague Chris Cuomo with his brother) asked Jennifer Psaki about the new allegations against Cuomo, Psaki called for both sides to be heard. That measured response is in stark contrast to her attack on Sen. Collins as a “fake feminist” and “coward” in voting to confirm Kavanaugh. We saw a similar contrast when then-candidate Joe Biden was accused of sexual assault, though some like Rep. Omar said he was probably a rapist but they would vote for him anyway. This should not be difficult. These leaders are right to call for fair and due process, even belatedly.
Here is the column:
In 2012, Attorney General Eric Holder appeared before at Northwestern University Law School to announce President Obama’s “kill list” policy, under which he reserved the right to unilaterally order the death of any American deemed an imminent threat. After all, Holder explained, “the Constitution guarantees due process, not judicial process.” The response was as chilling as the message: The audience of judges, lawyers and law students applauded an attorney general who just told them that any of them could be killed tomorrow on the president’s order.
Some of us denounced the “kill list” policy, which foreshadowed what has become a campaign against due process. In our hair-triggered culture of Twitter attacks and “canceling” opponents, due process is treated as hopelessly arcane and inconvenient. Our political discourse must now be tweet-worthy — less than 280 words — and delivered in a news cycle measured in minutes.
Due process, like free speech, is rarely valued until its loss becomes personal. Take Gov. Andrew Cuomo (D-N.Y.). Cuomo advanced his political career by positioning himself at the front of every mob pursuing political rivals, as during Brett Kavanaugh’s confirmation hearing. Before hearing the defense of now-Justice Kavanaugh, Cuomo described the allegations against him by Christine Blasey Ford as presumptively true. He not only effectively called Kavanaugh a rapist, without any due process, but demanded that Kavanaugh take a polygraph as a condition to be believed.
Cuomo was not alone. Many Democratic leaders insisted that “women must be believed” when raising sexual harassment allegations and declared Kavanaugh guilty before hearing any testimony. Rep. Alexandria Ocasio-Cortez (D-N.Y.) dismissed due process concerns for Kavanaugh, adding: “When we talk about … due process and justice, it must focus on the victim.” Sen. Mazie Hirono (D-Hawaii) said Kavanaugh was not entitled to a presumption of innocence and that men should “just shut up” and accept the allegations.
Last year, when Lindsey Boylan’s allegations went public, I wrote a column asking if Cuomo would presume himself guilty, absent a polygraph. Now, after Boylan added details of Cuomo’s alleged kissing and propositioning her, many are struggling with his (and their) prior positions against due process. While CNN, MSNBC and other networks blacked-out the story or barely covered it, others — including many on the right — have declared Cuomo to be guilty and dangerous.
Cuomo deserves due process, despite loudly denying it for others. Simply because Boylan made the allegations is not proof of guilt. Both sides have a right to be heard — not a right to be believed solely on their word. Due process allows us to determine who is a victim — not, as AOC suggested, to vindicate one party as the declared victim.
The Biden administration, however, is expected to build on President Obama’s anti-due process policies. During the Obama administration, universities were pressured, on threat of losing federal funding, to strip students of due process protections in cases of alleged sexual assault or harassment. Schools like Harvard initially resisted in court but quickly caved. On many campuses today, due process is often dismissed as a virtual claim of privilege or a tactic to delay racial justice.
Take the recent controversy at Smith College in Massachusetts. In 2018, Smith College and its president, Kathleen McCartney, spun into a frenzy after a student, Oumou Kanoute, accused the school of racism in an incident with a security officer and a lunch worker. Kanoute tweeted how a security guard was called to interrogate her for simply having lunch: “All I did was be black. It’s outrageous that some people questioned my being at Smith College and my existence overall as a woman of color.” Some media outlets ran the allegation without seriously questioning the underlying facts. As discussed in a recent New York Times piece, an intensive investigation disproved Kanoute’s allegations.
However, McCartney did not wait for an investigation; she suspended the janitor who called campus security, and ordered campus-wide training to deal with systemic racism. Kanoute reportedly published the names of the employees and one of their images, including one who was not even involved in the incident. All of the workers left Smith and were hounded as presumptive racists. After the investigation cleared them and found no racial bias, McCartney did not apologize and declared: “I suspect many of you will conclude, as did I, it is impossible to rule out the potential role of implicit racial bias..
Even the ACLU lawyer representing Kanoute dismissed any cost to these workers from being publicly humiliated without due process. Rahsaan Hall, racial justice director for the ACLU of Massachusetts, said: “It’s troubling that people are more offended by being called racist than by the actual racism in our society. Allegations of being racist … is not on par with the consequences of actual racism.” In other words, the Smith employees were not entitled to due process because they weren’t victims. The person who made the false allegation was the victim.
The Smith case is not unique. Lack of due process has long been a scourge on campuses, leading to a long list of real victims. In 2006, Duke University lacrosse players were accused of gang-rape; the university and the media treated them as guilty and dangerous, despite glaring problems with the account of the accuser (who was later convicted of second-degree murder).
In the 1968 movie “Green Berets,” John Wayne’s character, Col. Mike Kirby, says that “out here, due process is a bullet.” In today’s politics, due process has been reduced more to a bullet point. For too many pundits and politicians, the question of guilt is reduced to how the conclusion reinforces their own identity or agenda. Every accused, every victim, is a vehicle to amplify a message and that message just be delivered immediately and vehemently..
Of course, as Gov. Cuomo has learned, one can lead a mob one day only to be pursued by the mob on the next. It would be easy to leave him to the mob and call it poetic justice, but that is not justice of any kind. Cuomo should receive all of the due process he denied to others — not because he deserves it, but because he embodies the costs of ignoring it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
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