The great judge Oliver Wendell Holmes once quipped that hard cases make bad law. It is equally true that bad people create bad precedents, which are ultimately applied to good people.
The current frenzy over the Jeffrey Epstein files has already led to a dangerous statute to be enacted by Congress, requiring the selective disclosure of accusations but not of information that might disprove some of those accusations.
On Friday, a tranche of materials, released by the Justice Department, included photographs of former President Bill Clinton, entrepreneur Bill Gates and celebrities like Mick Jagger and Michael Jackson.
In weeks prior, selective Epstein emails were released by House Democrats, revealing ambiguous references to President Donald Trump.
Many Democrats are suggesting that President Trump must be complicit in some wrongdoing because he was associated with Epstein, while Republicans are making similar claims with regard to former President Clinton, even though there is no evidence of any criminal behavior on the part of any of these men, or on the part of many others whose names or photos have been released pursuant to the recent statute.
Of course, what Jeffrey Epstein did was terrible.
If anyone was complicit in his crimes, they should be punished. If anyone was aware in real time of his ongoing crimes and remained silent, they should be criticized.
But merely associating with this bad person before his extensive criminal behavior was known – or being his lawyer and defending him legally, as I was (between 2005 and 2008, when he pleaded guilty, as part of a plea bargain, to soliciting sex from two females, one of whom was over 18 and the other 17 years old) – is not a proper basis for McCarthyistic attacks.
A tranche of materials, released by the Justice Department, included photographs of former president Bill Clinton, entrepreneur Bill Gates and celebrities like Mick Jagger and Michael Jackson (Pictured: Bill Clinton and Epstein, released by Justice Department)
Republicans are making claims with regard to former President Clinton, even though there is no evidence of any criminal behavior on his part (Pictured: Bill Clinton in pool, released by Justice Department)
In weeks prior, selective Epstein emails were released by House Democrats, revealing ambiguous references to President Donald Trump
These recent releases have fueled unproven, often-partisan accusations against people who did nothing wrong – and are now being denied a fair opportunity to defend themselves.
When people of good conscience stay silent in the face of injustice, they run the risk that one day these injustices will be turned on them. And I cannot help but feel that America is living through a new age of McCarthyism.
McCarthyism destroyed lives – many of them innocent – by promiscuously hurling accusations of communist affiliation, while denying those accused any semblance of due process.
During the 1950s, Senator Joseph McCarthy would stand on the floor of the Senate holding a list of government employees he claimed were communists or ‘fellow travelers,’ a label he assigned suspected communist sympathizers.
Because McCarthy was a member of Congress, he was immune from being sued for defamation. Similarly, current members of Congress have threatened to read lists of accused sexual offenders.
Indeed today, nearly all the denials of civil liberties that characterized the original McCarthyism are being replicated in this new Epstein-McCarthyism.
Among these injustices are guilt by association, which implies that anyone who knew Epstein must be somehow complicit in his crimes; anonymous accusations which deny the accused the right to confront their accusers; guilt by accusation, which assumes that all accusations must be believed, even if made by alleged ‘victims’ or ‘survivors’ with histories of lying; suppressing evidence that would prove that some accusers may not be credible or may themselves have been perpetrators; attacking lawyers who defend accused perpetrators, and accusing them of being facilitators; refusal by politicians on both sides, as well as the media and civil liberties groups, to raise civil liberties concern, out of fear they will be accused of victim shaming and siding with perpetrators.
Members of both political parties have demanded that the names of anyone accused of misconduct be disclosed while insisting that the names and backgrounds of their victim-accusers be redacted.
This unfairness would deny wrongly accused individuals the right to confront their accusers and to present evidence regarding the credibility, or lack thereof, of false accusers. There is irrefutable evidence that some accusers have lied or exaggerated, while others, while adults, were themselves complicit in recruiting underage females for Epstein.
Merely associating with this bad person before his extensive criminal behavior was known – or being his lawyer and defending him legally, as I was, is not a proper basis for McCarthyistic attacks (Pictured: Photo of Epstein and Dershowitz released by Justice Department)
When someone accuses another of wrongdoing, they forgo any right of privacy or anonymity. Accusations are not the same as findings of guilt following a fair evidentiary process, even in the context of sexual misconduct. The presumption of innocence must be applied in all cases.
During McCarthyism, many people were afraid to speak out against its abuses for fear of being accused of being sympathetic to communism. They were called ‘commy-symps’ and some lost their jobs.
Today, few if any politicians would risk being labeled ‘victim-shamers’ or Epstein supporters.
Even many in the media, civil liberties organizations and defense lawyers have remained silent about the denial of the most basic rights to those who have been and will be found guilty in the court of public opinion of guilt by association or accusation.
Just as half-truths are often worse than full-out lies, so too half-disclosures may be worse than full disclosure.
From the beginning, I have called for full disclosure of everything, with no redactions. Sunlight is the best disinfectant, especially in politics.
Full disclosure is the best remedy to the new McCarthyism. Let a fully informed public, not government officials, judge what is relevant, incriminating or exculpatory. Selective disclosure is censorship, and government censorship rarely produces the whole truth and nothing but the truth. Moreover, it generates distrust and conspiracy theories that create a never-ending cycle of accusations and counteraccusations.
The only way to end the new Epstein-McCarthyism is for the government to disclose every document and permit anyone whose name, image or email are among them to explain, defend their past connections to Epstein.
