Law Commons^™

Bias, Corruption & Obstruction, Oh My: The Due Process "Shocks The Conscience" Limit On Investigative & Prosecutorial Conduct, Elizabeth Price Foley

Faculty Publications

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 …