Due process of law, or at least its absence, is the heart of the unconstitutional lawfare aimed at Donald Trump this week in a New York courtroom, ostensibly for hush money payments to Stormy Daniels. This is a crossing of the Rubicon moment for our Republic.

“Due process” is ancient shorthand for the sum of all the procedures the government must comply with and honor before it may take a person’s life, liberty, or property. The right to due process is over 1,000 years old in English jurisprudence. It is a right of every citizen and a duty of every government.

A year ago, I wrote about DA Bragg charging Trump with a crime, but not identifying the crime. Within the past few days, Andrew McCarthy called the prosecution a “farce” and listed its many failings. Prof. Jonathan Turley wrote that Trump is not being prosecuted for any actual crime. Prof. Jed Shugerman called the prosecution unfounded, both a “legal embarrassment” and a “historic mistake.” Matthew Whitaker said that Judge Merchan, who presides over the Manhattan kangaroo court, is hopelessly conflicted to a degree that would make Joe Biden blush.

The fundamental issues with this trial all revolve around a denial of due process. This is criminally unconstitutional, and, because it is meant to distort a free and fair presidential election President, creating an existential crisis for America.

Image: Donald Trump by AI.

A Brief History of Procedural Due Process

Since 1215, an ocean of blood has been spilled by men on English and American shores to vindicate individual rights. Civil wars (including the 1st and 2nd Baron’s War, the Peasants’ Revolt, the English Civil War, the Glorious Revolution, and the American Revolution) have been fought, kings deposed, a king executed, and nations sundered to vindicate those rights. And in virtually all those conflicts, a government’s systemically denying its citizens’ due process rights was at the conflict’s heart.

The British freemen’s right to due process of law appeared first in the Magna Carta of 1215, when the tyrant King John was imprisoning men and extorting their lands and possessions. That same right to due process of law appeared in writing again as a right of all English citizens in the Petition of Right of 1628 when Charles I was imprisoning and even executing men, not for any crime, but to take their lands and estates. Due Process of law was reaffirmed as an Englishman’s right in the English Bill of Rights of 1689 after the English deposed James I for dispensing with those rights and ruling as a tyrant.

In 1761, King George III began to deny the colonists many aspects of due process of law. By 1775, George III’s refusal to honor the Americans’ rights led to the American Revolution. After the Revolution, America’s Founders wrote “due process of law” into both the U.S. Constitution and Bill of Rights. It appears generally in the 5th Amendment and specifically as to component parts of due process in the 4th, 5th, and 6th Amendments.

Due process is at our republic’s very foundation and is indispensable to our nation’s functioning. Take away “due process of law,” and there is nothing to stop government tyranny and criminality. There is nothing to stop our own versions of history’s Mao, Stalin, Robespierre, and Charles I. We see it in the currently unstoppable Alvin Bragg, Juan Merchan, and the rogue’s gallery of others plotting lawfare to de facto overthrow our republic.

The Mechanics of Due Process of Law

Much of the U.S. Constitution is not an explanatory text. It is written in shorthand, with references to things that were well-known in law and culture when the U.S. Constitution and Bill of Rights were ratified. Thus, when the 5th Amendment says no one “shall be deprived of life, liberty or property without due process of law,” every American understood that to mean the sum of those procedures that American and English courts followed in 1791.

It helps to think of due process of law in two prongs. The first prong is the procedures the government must follow. They are characterized by ensuring that a large number of people come to an objective agreement that a crime occurred and that the defendant committed the crime. This prong guards against any one government actor acting out of wrongful motive, whether it be avarice, vengeance, or political gain.

The second prong is the information and rights that the government must make available to the defendant to ensure he has an adequate defense against the government’s overwhelming power. This includes telling him the crimes for which he is charged, allowing him to hear the evidence against him, and allowing him to present a defense, including the right to cross-examine witnesses.

The federal and state governments all have their own laws defining procedural due process of law. They’re very similar, with some minor local variations. As a general matter, when a law-enforcement officer proposes to arrest someone, the officer must meet with a prosecutor and show the evidence. Only if the prosecutor agrees that the putative defendant violated a valid law does the prosecutor present those facts to a Grand Jury.

If the Grand Jury returns an indictment, the prosecutor refers the matter to a magistrate who reviews the charges and, if they’re legally sufficient, issues a warrant to arrest. By this point, the process has involved twenty or more people, all of whom have had a chance to see the evidence and weigh the prosecutor’s decision.

After arrest, the defendant must be brought before a court, where the exact charges are read against him in front of a neutral magistrate. The defendant then has several additional due process rights to ensure that he is treated fairly, including the right to trial by a jury of his peers.

The government must produce evidence at the trial, and it is the government, seeking to take away the defendant’s life, liberty, or property, that has the burden of proof of guilt (rather than the defendant having to prove the negative, which is his innocence). A neutral judge must preside fairly over the trial.

At trial’s end, only after the jury has heard all the facts and after watching the defendant confront his accusers, then, and only then, if the jury approves the charges based on the facts can government invade the defendant’s God-given rights to life, liberty, and property.

Donald Trump’s trial in NYC has been an obscene mockery of Due Process. It is criminally and blatantly unconstitutional:

[Per AT, McCarthy, Turley] DA Bragg charged Trump with accounting fraud (a misdemeanor) done intentionally to hide a second crime. At no point before trial did Bragg inform Trump what the second crime was that he was alleged to have committed. No one, whether in 2024 New York City, Charles I’s Star Chamber, or a televised show trial from the Soviet Union, can possibly defend against hidden crimes.

[Per McCarthy, Turley, Shugerman] It gets worse. At the trial, DA Bragg is alleging a second crime of “conspiracy” (hiding information) that was not in the indictment, and that does not apply to the alleged facts of the case.

[Per Whitaker] Judge Merchan, overseeing the trial, is not a disinterested party to these proceedings. His daughter is a Democrat fundraiser making millions of dollars thanks to this particular criminal trial.

[Per The New York Post] Judge Merchan has not merely allowed this trial to proceed under these outrageous circumstances, but he is allowing DA Bragg to spend days bringing in irrelevant evidence about Trump’s alleged affair with Karen McDougal. The law in all American jurisdictions makes this type of evidence impermissible because it invites a jury to convict for acts other than the crime charged. It is classic judicial and prosecutorial misconduct. Indeed, it was for just such acts that New York’s highest court recently vacated Harvey Weinstein’s conviction.

This case—its timing and the sum of its irregularities—has no chance of surviving an appellate review, even if a rabid progressive jury convicts Trump for being Trump. This case is designed solely to have an immediate impact on the 2024 election.

Make no mistake, this is a civil war battle, only it’s fought with a quill instead of a sword. Its existential ramifications for our nation are no less serious. What’s happening is a blatantly unlawful attempt to disenfranchise over half this nation and, by setting a precedent that sees Republicans exist below the ancient protections of due process, it threatens our nation with disunion at best.

Properly understood, these are acts of seditious conspiracy and treason meant to be felt throughout the United States. As such, Judge Merchan, Alvin Bragg, and all their cohorts need to be arrested and tried in the heartland of our nation. Let them face America. If convicted, they need to be punished to the maximum extent allowed by law.

Wolf Howling is an attorney and retired military officer who blogs at Bookworm Room.