Trampling the 5th Amendment

Americans have long derided dictators for eliminating political opponents by prosecuting them on dubious grounds and denying them due process. Hence, they would have widely condemned the use of these techniques to obtain the criminal conviction of a candidate for high office—were it not for the fact that the candidate was Donald Trump. President Biden and most other Democrats found the sausage so appetizing that they ignored how it was made. Although the court’s violations of the 5th Amendment could be corrected by higher courts if they took the Constitution seriously, much damage has already been done to the credibility of the courts and the sanctity of the electoral process.

If the travesty in New York has any benefit, it will be in heightening Trump’s awareness of due process violations in the service of lawfare and weaponized justice. Once your constitutional right to due process has been violated, you have a newfound appreciation for it. Such an appreciation should prove valuable to a reelected Trump, for his appointees and supporters are sure to face renewed due process violations of the sort regularly employed against them by federal prosecutors, administrative judges, security clearance adjudicators, and agency leaders since he first took office.

In 2017, Adam Lovinger blew the whistle on his boss for committing fraud in support of the scandalous Crossfire Hurricane investigation. His boss then orchestrated the revocation of his security clearance based on trivial charges that had never been used to revoke an individual’s security clearance before. Federal Executive Order 12968 gives due process rights to individuals subjected to clearance revocations, requiring the government to provide “any documents, records, and reports upon which a denial or revocation is based,” as well as “the entire investigative file” within thirty days. But Pentagon bureaucrats refused to turn over these materials to Lovinger by falsely claiming they were classified. Lovinger was forced to defend himself without knowing the evidence or the charges against him—an enormous disadvantage for any defendant.

In 2021, Pentagon security bureaucrats targeted Michael Ellis and Katie Arrington, Trump supporters who had obtained jobs in the permanent bureaucracy. They accused the pair of mishandling classified information and refused to disclose the purported evidence. Ellis and Arrington ended up leaving the Defense Department after neither their lawyers nor members of Congress could pry the evidence from security officials. During the same period, security bureaucrats bestowed security clearances on Democrats Jake Sullivan and Colin Kahl despite publicly available evidence that they had mishandled classified information.

The government fired me from my position as a senior Trump appointee after an unnamed individual accused me of publishing classified information in the book Oppose Any Foe: The Rise of America’s Special Operations Forces. An agency lawyer initially promised I would have a chance to respond to the alleged evidence in accordance with due process. The agency, however, never turned over any evidence, and the same lawyer subsequently convinced agency leaders to fire me because the evidence had to be accepted as “gospel” since it came from another agency. When I filed a whistleblower retaliation complaint, the agency’s Inspector General denied me whistleblower protections and due process by falsely claiming I had “voluntarily resigned.”

Defense Department officials restored my clearance one year later, having concluded that the evidence lacked both the truth and authority of gospel. Then other bureaucrats intervened and tried to revoke my clearance, which entitled me to due process under the provisions of Executive Order 12968. The Defense Department and USAID both refused to turn over evidence, claiming it belonged to the other agency.

Rather than defending myself blindfolded, I sued in federal court to make the government comply with its own executive order. The Justice Department moved to dismiss on the grounds that I lacked standing. One year later, a judge rejected the government’s argument but nonetheless ruled that the court lacked the authority to compel the executive branch to enforce its own executive orders. Last week, the DC Circuit Court of Appeals vacated that decision and remanded the case back to the lower court because due process was also encapsulated in relevant federal regulations. Five years after the accusation and twenty-seven months after the filing of the suit, I am still waiting for due process.

In the course of writing a book on this ordeal, I learned that toxic leaders and bureaucrats in the Department of Defense have been devising additional tricks to circumvent the due-process protections. In 2019, for instance, Major General Kurt Sonntag pulled one of these tricks on Micah J. Robertson and Michael Squires, whom he suspected of sympathizing with a soldier who had accused him of lowering standards at the Kennedy Special Warfare Center and School. Sonntag denied Robertson and Squires access to a court martial by issuing each individual a General Officer Memorandum of Reprimand. The two soldiers were terminated after more than ten years of service without any severance compensation.

If Trump wins the coming election, as recent polling suggests, he should enforce existing executive orders and regulations to stop due process violations. He should throw the book at individuals who seek to destroy others through unconstitutional punishments. I am confident that he will, now that he has firsthand experience of the value of the 5th Amendment.

Mark Moyar is the author of Masters of Corruption: How the Federal Bureaucracy Sabotaged the Trump Presidency.

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About Mark Moyar

Mark Moyar is director of the Project on Military and Diplomatic History at the Center for Strategic and International Studies. The author of six books and dozens of articles, he has worked in and out of government on national security affairs, international development, foreign aid, and capacity building. His latest book is "Oppose Any Foe: The Rise of America's Special Operations Forces" (Basic Books, 2017).

Photo: PHILADELPHIA, PENNSYLVANIA - JUNE 22: Republican presidential candidate, former U.S. President Donald Trump speaks at a campaign rally at the Liacouras Center on June 22, 2024 in Philadelphia, Pennsylvania. Earlier today Trump delivered remarks at the Faith and Freedom Road to Majority conference in Washington DC. (Photo by Anna Moneymaker/Getty Images)

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