‘Due process of law…’
There is no more fundamental right. Or so I’ve been told my whole life.
I’ve previously written about how the Biden administration’s harsh treatment of the January 6, 2021, United States Capitol Building protesters is contrary to historical precedent set by other presidents.
Now public release of previously undisclosed videos from inside the Capitol on that day indicate that the Biden administration narrative of those events is not entirely accurate.
More ominously, it shows the Biden Department of Justice abandoned respect for due process of law, regarding certain January 6 protesters.
The Fifth Amendment to the United States Constitution provides as follows:
No person shall ….. be deprived of life, liberty, or property, without due process of law.
Known as the “due process clause”, there are a plethora of United States Supreme Court decisions explaining what it means. It’s part of the basic curriculum of the first year of law school. No member of the legal profession can honestly claim ignorance of its existence or meaning.
One landmark supreme court decision interpreting that clause is pertinent to what the newly released videos reveal about the Biden justice department’s flagrant violation of that right. In 1963, the Court decided Brady v Maryland. In that 7-2 decision, the Court announced the ‘Brady rule’, mandating that if the prosecution is aware of any evidence which is “favorable” to an accused, prosecutors are obligated to disclose that evidence to the defense. The Court declared:
“We now hold that the suppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material either to guilt or to punishment.”
Every prosecutor in this country knows – or damn well should know – that rule. Compliance with it is an ethical obligation, because when they don’t, “…that casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.”
Thirty years before the Brady decision, the Supreme Court explained the unique role of prosecutors in our justice system when they said, “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
Unfortunately when prosecutions become politicized, prosecutors sometimes forget their ethical obligations. For example, see my column from 2021.
The protest at the U.S. Capitol on January 6, 2021, was clearly a political act by the protesters. But that’s not what this column is about. Nor is it an attempt to explain, or justify what occurred. My purpose is to use the Biden administration’s response to that event to illustrate the danger to our freedom inherent in the corruption of the federal justice system.
The episode at the Capitol Building that day is similar to another historical event. On the night of February 27, 1933, the German parliament building – the Reichstag – was damaged by arson. Historians still debate if it was communists, or Nazis themselves, who set the fire – but there is no dispute how the Nazis exploited the event.
“The Nazi leadership and its coalition partners used the fire to claim that Communists were planning a violent uprising. They claimed that emergency legislation was needed to prevent this. The resulting act, commonly known as the Reichstag Fire Decree, abolished a number of constitutional protections…”
It now appears the Biden justice department ignored the due process of law for some who have been criminally charged for participating in the January 6 protest.
The case of the highest profile accused protester, Jacob Chansley (dubbed by the media as the ‘Q-Anon Shaman’), is an example. Chansley was denied release on bond while being held in solitary confinement for over 300 days before he pled guilty — then sentenced to 41 months in prison for his participation.
The recently released videos, which were illegally suppressed by Biden’s Justice Department in violation of the ‘Brady rule’, raise doubt as to Chanley’s guilt – and most certainly undermine any justification for the severity of his treatment and sentence.
According to a story in the New York Post, FOX News commentator Tucker Carlson reviewed some of the security camera footage from January 6 and concluded that “…the tapes show the Capitol Police never stopped Jacob Chansley. They helped him. They acted as his tour guides.”
Those videos are textbook ‘Brady’ evidence “favorable” to Chansley which the government was required by due process of law under the 5th Amendment to have disclosed to him before he pled. That they didn’t, totally discredits his detention, plea, conviction, and sentence.
Aside from the ‘Brady rule’ violation of the 5th Amendment due process clause, Chansley being denied bail and held for over 300 days in solitary confinement before having been convicted of any crime raises serious 8th Amendment violation questions. That Amendment declares, “Excessive bail shall not be required, … nor cruel and unusual punishments inflicted.”
Six years after deciding Brady, the Supreme Court reiterated the well-settled principle that for a plea (such as Chansley’s) to pass constitutional muster it must be free, voluntary, and uncoerced because, “[C]oercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality.”
Between the seemingly flagrant violation of the 8th Amendment and clear violation of the ‘Brady rule’, Chansley’s case becomes frighteningly reminiscent of Reich Ministry of Justice Secretary Roland Freisler’s concept of due process.
Regardless of a person’s opinion of the January 6 protest, or of Donald Trump and ‘MAGA Republicans’, if they are not outraged by such blatant disregard of fundamental rights then they are hopelessly blinded by partisan belief that the ‘ends justify the means’.
If so, they should heed the words of Lutheran pastor Martin Niemoller about the Nazis:
First they came for the Communists, And I did not speak out
Because I was not a Communist;
Then they came for the Socialists, And I did not speak out
Because I was not a Socialist:
Then they came for the trade unionists, And I did not speak out
Because I was not a trade unionist:
Then they came for the Jews, And I did not speak out
Because I was not a Jew:
Then they came for me,
And there was no one left to speak out for me!
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.