The new Epstein McCarthyism

Advocates for alleged victims of the late sex-offender Jeffrey Epstein are calling for members of Congress to read out the names of accused perpetrators on the floor of Congress. Several members have agreed to do so. By reading these names on the House or Senate floor, they would immunize themselves from any legal consequences, thanks to the Speech and Debate clause of the U.S. Constitution.

This tactic was employed by Senator Joseph McCarthy (R-Wisc.) in the 1950’s. He read out lists of alleged communists and fellow travelers on the Senate floor. Under the Constitution, named individuals who were completely innocent of such charges could not sue.

If members of Congress now receive lists of names from alleged victims and read them on the floor, both the members and the accusers would claim immunity from lawsuits. This would deny a legal remedy to anyone who is falsely accused. Those named would be presumed guilty merely on the basis of unproved accusations.

The current frenzy over Epstein lists is in fact reminiscent of the frenzy over communism in the 1950s. In the midst of such frenzies, few seem to care about the due process rights of those who have been falsely accused.

I was falsely accused several years ago but was able to sue my accuser and produce evidence of my total innocence. As a result, my false accuser withdrew her allegation and settled the case by acknowledging that, as a young person, she may have misidentified me or confused me with someone else. Had she provided my name to a member of Congress who then publicized it, I would have been denied the opportunity to disprove the false allegation in the courts.

The same is true of others who may be falsely accused. Victims’ advocates have said they have a list of 20 alleged abusers, including prominent people. I know, based on my legal representation of Epstein and a thorough review of the records, that at least some of those on the list are innocent. Like those accused by McCarthy, their reputations will be hurt by being included on the list, and they will have no legal recourse.

From the day I was falsely accused, I demanded release of all the documents, recordings and other information that would help get to the truth. But information that might raise questions about the credibility about the accusers has been suppressed by the courts, by the FBI and by the media.

Even the statute just passed by Congress allows the Justice Department to redact negative information about the accusers. Anyone who tries to impugn their accounts will likely be accused of victim-shaming.

We must strike a balance between the rights of alleged victims and the rights of those who may be falsely accused. But the atmosphere today makes it difficult to strike an appropriate balance. All accusers are deemed to be victims and survivors, without regard to the evidence or lack thereof. And all accused are deemed guilty merely on the basis of accusations by alleged “victims” or “survivors.” That is not the way due process is supposed to work.

Nor is this an elevation of form over substance. Some of the alleged victims have lied, and some may be peddling false accusations for money. Those whom they accuse with a reading from the House floor will be deprived of the right to challenge their credibility.

One accuser, for example, retracted her story of having sexually incriminating tapes of Bill and Hillary Clinton, President Trump and British businessman Richard Branson. Others may have said things in the past that impugn their credibility.

Due process and the presumption of innocence are often the first casualties of the kind of frenzy we are seeing with regard to the so-called Epstein files. Good people tend to ignore the pesky Constitution when they are certain that truth and justice are on their side.

Those who battled against the dangers of communism — and those dangers were real in the 1950s — refused to allow the constitutional rights of the innocent to get in the way of ridding our nation of the few communists who held positions of influence in government and other institutions.

Similarly today, those battling against guilty sex offenders refuse to acknowledge the constitutional rights of those who may be falsely accused. As with McCarthyism, they even attack lawyers who represent potentially guilty clients. Also, as with McCarthyism, liberals and civil libertarians are often afraid to speak up against these constitutional violations.

That is why the warning given by Justice Louis Brandeis a century ago is so relevant today: “the greatest dangers to liberty lurk in insidious encroachment by men [and women] of zeal well meaning but without understanding.“