Due process guarantees the government will not exercise its power in a manner falling below the standard of civilized decency. Under Supreme Court precedent, behavior by government officials, including prosecutors and investigators, that objectively may be characterized as outrageous, arbitrary, capricious, biased, vindictive, or conscience shocking violates due process. Whether officials’ behavior crosses the constitutional threshold requires an assessment of the totality of the circumstances and is, accordingly, a factually sensitive inquiry. Facts disinterred thus far suggest that the “collusion” narrative—alleging that Russia and Donald Trump’s campaign colluded to throw the 2016 presidential election—may have a corrupt or politically biased genesis. As the facts continue to unfold, the depth and breadth of bias against Trump by Executive Branch officials, including those at the FBI and DOJ, may well rise to conscience shocking levels. The taint of antecedent corruption or bias, in turn, could infect the prosecutorial effort of Special Counsel Robert Mueller.
Elizabeth Price Foley,
Bias, Corruption & Obstruction, Oh My: The Due Process "Shocks the Conscience" Limit on Investigative & Prosecutorial Conduct
, 66 Drake L. Rev. 787
Available at: https://ecollections.law.fiu.edu/faculty_publications/406