Courts

The Kavanaugh Doctrine: Innocent As Long As You're Useful

Trump has now fully perverted the presumption of innocence into a tool for corruption.

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(Photo by SAUL LOEB/AFP/Getty Images)

Quick: find for me where “innocent until proven guilty” is written in the Constitution. Can’t? Okay, how about where the “presumption of innocence” is codified in the original document or one of the Amendments. I’ll wait.

…

Yes, this is a trick question. The presumption of innocence is not a “right” guaranteed by the Constitution.

However, me pointing that out is a little intellectually dishonest. I’m just trolling textualists. The presumption of innocence can certainly be inferred from THE PENUMBRA of many Constitutional principles, including the 5th, 6th, and 14th Amendments. The presumption of innocence is a bedrock principle of fair trials. It places the burden on the state to prove that a crime has been committed and the culprit has been identified, instead of placing the burden on the accused to prove something did not occur.

The presumption of innocence can really only be understood in a trial setting, with respect for whether the state or a private individual should bear the burden for proving guilt or innocence. It’s a presumption that is inextricably tied to the courtroom experience. If you just walked around with some kind of inalienable right to be presumed innocent until proven guilty, the state could not arrest you until it obtained a conviction. The state could not search you unless it already knew what you were carrying. Our entire cannon of “probable cause” is built around the concept that sometimes it’s okay for the state to ignore your presumed innocence and treat you as a person who is probably guilty of something.

And of course, any legally actionable presumption of innocence would only apply to state action. Individuals, acting in their capacity as rational humans, are not required to presume a goddamn thing. I am not required to wait for an arbitrator’s ruling before I get to figure out that the NFL has colluded against Colin Kaepernick. I mean, have you seen Nathan Peterman throw a football? That’s literally all the proof I need. I also wasn’t waiting around for a jury to come to the conclusion that Bill Cosby is a rapist. Somewhere between two women (who I shamefully dismissed) and fifty-freaking-six accusers, I came to my own determination that I needed to stop buying Jell-O Pudding Pops. If the state is going to take away Cosby’s physical freedom, sure, “presumption of innocence.” If I’m going to presume Cosby is innocent, the standard is “am I a rape apologist or merely an idiot?”

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We shouldn’t cross the streams between the state presumption of innocence, and the private application of common sense, because the allowable consequences are entirely different. The state can kill you (not that it should). I cannot (not that I won’t).

We are supposed to have state actors who understand the difference between their official functions and their private sensibilities. Unfortunately, a majority of white people decided to elect a chief executive who has a complete inability to distinguish between himself and his office, or his beliefs versus his responsibilities. Donald Trump doesn’t think he represents America, he thinks he’s the only person in America who matters. He doesn’t understand the presumption of innocence as a legal concept, he only thinks that if he thinks a person is innocent, everybody must agree with him: unless they can prove him wrong which they never can because he also doesn’t believe in facts.

(As an African-American, I am contractually required to remind you that Donald Trump does NOT believe in innocence or due process, as applied to people of color. He still thinks the Central Park Five should have been executed, even though they have literally been proven innocent, which is a much higher bar to clear than a mere acquittal. But you either already know Trump is racist or are willfully ignorant of the fact.)

Everybody saw Trump’s warped understanding of the presumption of innocence on full display during the Brett Kavanaugh hearings. There, when dealing with a person who was not on trial for attempt rape, Trump invoked the standards of a trial as a way to defend an alleged attempted rapist. It wasn’t on Christine Blasey Ford or Deborah Ramirez or Julie Swetnick to prove that Kavanaugh did these horrible things: it would have been on the state to prove such claims, if we lived in a state that took violence against women seriously. It was on Trump and the United States Senate to decide if Kavanaugh was the kind of person who deserved promotion to the highest court in the land. But because Trump and the Republicans wanted Kavanaugh on the Court regardless of his past, they warped the hearings into a quasi-trial, denied Kavanaugh’s victims discovery, and generally acted like Kavanaugh had a due process right to ascend to the Supreme Court that was protected by the Constitution.

My children have made better arguments that their bedtime is arbitrary and capricious than Kavanaugh defenders made for why pulling the Kavanaugh nomination would have been a violation of due process.

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And yet a lot of non-Trump white people went along with this farce, mainly because they hate and fear #MeToo. It offends certain white people that a white men might be denied anything, anything at all, on the mere say so of a woman. There are factually innocence people languishing in jail or on death row right now, that these Kavanaugh stans don’t give a wet s**t about. But the mere thought that a white man could be denied a promotion based on “old” allegations that “can’t be proven in a court of law” brought these hypocritical assholes out of the woodwork.

These people don’t believe in “innocent until proven guilty” as a legal process. They believe in white privilege as a societal maxim. Just wait till Kavanaugh gets to rule that a brown person in Queens can be preemptively deported to based on their 23&Me results the state prepared without their consent. You’ll see all these innocent until proven guilty process heroes cheer.

But the reality of Donald Trump is that any time he gets away with one thing, he does it again and again. Having promulgated the Kavanaugh Doctrine — every male is innocent unless you can prove he is guilty without an investigation, discovery, or cross-examination — Trump now seeks to apply it. From The AP:

President Donald Trump Tuesday criticized rapidly mounting global condemnation of Saudi Arabia over the case of missing journalist Jamal Khashoggi, warning of a rush to judgment.

In an interview with The Associated Press, Trump compared the situation to the allegations of sexual assault leveled against Supreme Court Justice Brett Kavanaugh during his confirmation hearing.

“I think we have to find out what happened first,” he said. “Here we go again with, you know, you’re guilty until proven innocent. I don’t like that. We just went through that with Justice Kavanaugh and he was innocent all the way as far as I’m concerned.”

Here we go again, indeed. Saudi Arabia is not on trial, and even if somehow the entire nation-state was on trial, it wouldn’t be subject to due process of our Constitution, but let’s pretend that they are for the purposes of letting Trump get away with saying whatever he wants.

For it’s part, Saudi Arabia seems prepared to admit that they killed the guy in a “botched interrogation.” Kind of like how Mark Judge repeatedly admitted in books that he and his friends got black out drunk all the time in high school. But it doesn’t matter. For Trump, “innocent” isn’t a finding of fact, it’s a state of mind.

Trump’s blase attitude towards the murder of a Washington Post journalist has alarmed some Republicans, but I do not want to hear from them. Shut up, Bob Corker and Lindsey Graham and whoever else. ALL of you people just told Trump that this exact attitude was acceptable when you voted for Kavanaugh.

If Republicans are troubled that Brett Kavanaugh is now being compared to Prince Mohammed bin Salman, or that the potential torture and murder of a journalist is being compared to the Senate foisting an unpopular justice upon the rest of America, then maybe they shouldn’t have tortured the country while trying to protect an alleged attempted rapist.

The hat fits, you all wear it now.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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