Why ‘Due Process’ Isn’t a Solution to the Cuomo Allegations

Why ‘Due Process’ Isn’t a Solution to the Cuomo Allegations

Why ‘Due Process’ Isn’t a Solution to the Cuomo Allegations

And why an apparent generational divide over the governor’s fate is more complicated than it looks.


Last week, WNYC radio’s Brian Lehrer said that he’d noticed a generational divide in responses to Governor Andrew Cuomo, whom a growing number of public officials have urged to resign over claims of sexual harassment. Lehrer had heard a lot from older callers who fiercely defended the New York governor. Some thought the allegations themselves were no big deal; others thought politicians were wrong to call for Cuomo’s immediate resignation since to do so was to deprive the governor of “due process.” Meanwhile, Lehrer received far fewer calls from younger New Yorkers, who, he sensed, may have been less prepared to defend Cuomo. The division seemed so pronounced that Lehrer dedicated a second segment to the topic, specifically urging younger listeners to call in.

But the generational divide isn’t so simple as pro- and anti-resignation. The more striking trend in recent polling of New York voters is that younger people are less certain about what they think. Voters under 55 are ever-so-slightly more likely than their older counterparts to say that Cuomo should resign now. But that younger bloc, especially 18 to 35-year-olds, are much more likely than older voters to say they just don’t know whether Cuomo should immediately step down—or whether he harassed anyone. The 55-plus category is the most likely to say they believe the allegations; they’re also the most likely to say they don’t.

There are explanations for this trend that don’t speak to dramatic generational divides. Older voters are generally more likely to be up to date on the news; indeed, more of them told pollsters they’d heard a lot about the allegations against Cuomo. Maybe young people are uncertain as a group because we just don’t know what’s going on. Maybe confidence comes with age.

I feel inspired, though, to speak in favor of uncertainty, because I think it’s an underrated position here. To put my cards on the table: I’m a 31-year-old sexual harassment lawyer. Personally, I think Cuomo should resign now based on the accounts that he does not dispute, including grossly inappropriate inquiries into a female subordinate’s sexual history and preferences—textbook sexual harassment. But I won’t pretend the question about how to best address the allegations against Cuomo, and on what timeline, with what kind of investigation, is an easy one.

A lot of people—including older callers to Lehrer’s show—sound quite sure of the solution: “due process.” But what, exactly, does that mean? As a legal matter, due process is a constitutional protection against the government’s deprivation of life, liberty, or property. Cuomo, of course, does not have a due process right for people not to ask him to resign. But we often use the term to appeal to the ethical commitments to fairness that shaped, and are shaped by, our legal rules, even where they technically don’t apply. That can be useful. Even where, for example, private employees are unprotected by the Constitution, calls for the basic principles of due process—notice and the opportunity to be heard, an impartial decision-maker—may be clarifying and rhetorically powerful.

But public debate often assumes that due process is a much more certain, fixed set of procedures than, in fact, it is. Many people expect that due process will always require a proceeding much like a criminal trial. In my experience, that instinct is particularly strong in the context of sexual harms, which many of us can’t help thinking of as crimes that require criminal-like procedures (rather than as, say, civil rights abuses and violations of workplace rules). The truth, though, is that due process is a flexible, context-dependent standard with parameters that shift in response to the stakes for the accused, the different interests at play, and inevitable constraints. There is no single “due process” because every new circumstance presents the question of what, exactly, is due. And to whom.

All of this is infinitely more complicated when decisions must be made through an inherently political process like impeachment. Strictly legalistic visions of fairness just don’t fit. Some of the hallmarks of due process—like impartiality—are simply impossible. Let’s say that Attorney General Tish James completes her investigation into the governor and lays out her office’s fact-findings in a report. What then? The New York legislature will still have to decide whether to impeach him on that basis. Will lawmakers accept her factual findings? If so, will they think the established facts warrant removal? These decisions won’t be made by an impartial jury but rather by politicians with their own motives—as is always the case in any impeachment, regardless of the allegation at issue. One need look no further than the overwhelmingly partisan votes on President Trump’s impeachments to see that’s so. Justice Kavanaugh’s confirmation provides another example. It would be naive to imagine it was mere coincidence that senators split along party lines on the sexual assault allegations leveled against the judge.

As Representative Jerry Nadler put it, calling on Cuomo to resign isn’t a conviction but instead a political judgment. And that judgment is about more than what the governor allegedly did to whom. We must ask whether Cuomo has the confidence of New Yorkers, and of the party he ostensibly leads, without which he cannot effectively govern. As a practical matter, the answer will be inextricably intertwined with public views of Cuomo’s competence, which vary from MSNBC-themed adulation to outcry over covered-up nursing home deaths. Politicians and their constituents must also weigh the democratic benefits of removing a disgraced leader against the democratic injury of replacing an elected official without an election. That’s a very different situation than when a defendant is criminally charged or an ordinary HR department investigates an ordinary boss—the kinds of situations where due process, as rule or ethical commitment, can guide us well.

In this case, there is simply no removing politics from the equation. To acknowledge that doesn’t trivialize the very real harm Cuomo is alleged—and, in some cases, confirmed—to have caused, or the concrete interests of his alleged and confirmed victims. They have told us that the governor abuses his power. And so now we, the people who gave him that power, have to decide whether he can be trusted to retain it.

Political judgments like these are inherently indeterminate. I have my own answer, based on my assessment of the reported accounts and Cuomo’s responses. But there is no incontrovertible rule to point the way, as the calls for “due process” suggest. I’ve heard enough. Some people haven’t. Many want Cuomo to be governor, and plenty of others don’t. And I’d rather we be honest about the messy project before us than pretend there is a neat legalistic answer.

Thank you for reading The Nation!

We hope you enjoyed the story you just read. It takes a dedicated team to publish timely, deeply researched pieces like this one. For over 150 years, The Nation has stood for truth, justice, and democracy. Today, in a time of media austerity, articles like the one you just read are vital ways to speak truth to power and cover issues that are often overlooked by the mainstream media.

This month, we are calling on those who value us to support our Spring Fundraising Campaign and make the work we do possible. The Nation is not beholden to advertisers or corporate owners—we answer only to you, our readers.

Can you help us reach our $20,000 goal this month? Donate today to ensure we can continue to publish journalism on the most important issues of the day, from climate change and abortion access to the Supreme Court and the peace movement. The Nation can help you make sense of this moment, and much more.

Thank you for being a supporter of independent journalism.

Ad Policy