Eminent public figures have been brought low because they associated with Epstein, while Democratic candidates’ past lives are apparently out of bounds.
Eminent public figures have been brought low because they associated with Epstein, while Democratic candidates’ past lives are apparently out of bounds.
I ’m confused. Is guilt by association a thing? Shall the world know us by the company we keep or, these days, by our tats? Or is that just the stuff of ambiguity and youthful indiscretion, telling us nothing meaningful about the person under consideration, who should be judged solely by his or her own words and actions?
It seems the answers to these questions vary depending on the political affiliation of the person doing the associating.
This week’s big blockbuster report is about the story that can never die — the saga of Jeffrey Epstein, the late, infamous sex trafficker of underage girls. The New York Times took its bellows to the flames, publishing an explosive excerpt from Regime Change: Inside the Imperial Presidency of Donald Trump, the forthcoming book by Maggie Haberman and Jonathan Swan. While they are ace reporters, their skill is not the reason the Epstein story can never die. It’s too sprawling, and the conspiracy theories about it are unfalsifiable.
I invoke “conspiracy” advisedly.
The Epstein tale is a guilt-by-association farce. Eminent public figures have been brought low because they associated with Epstein, some during what we now know were his years-long periods of hyperactive abuse, some after he was widely known to be a convicted sex offender (though at liberty thanks to a sweetheart plea deal in Florida).
Having been a federal prosecutor for many years, I’m here to tell you that not all conspiracies are just “theories.” Many are real criminal confederations. And there has never been a real conspiracy absent association; conspiracy requires a meeting of at least two minds, so there can’t be one absent an association of people united by a criminal objective.
But note that word, criminal. In the law, agreements are only actionable conspiracies if the agreed-upon aim is to commit a criminal offense. We care about association in this context because it is the threat or reality of concerted activity — the fact that people can be more dangerous collaborating than acting on their own — that causes us to make conspiracy a penal offense. Still, agreements to do non-criminal (if icky) things are not conspiracies. And even if prosecutors can establish that there is a criminal conspiracy, a person’s association with the conspirators is not enough to prove his guilt. Guilt is individual, so association with guilty people, while necessary to prove a conspiracy charge, is not sufficient. The government cannot prevail on a conspiracy without showing that the individual intentionally tried to accomplish the criminal aim.
Bottom line: We care about conspiracy because it is an agreement about crime, and we care about association because it is an essential precondition for agreement. Guilt is not proved by mere association, but there can be no guilt without association.
Here’s the thing though: That’s just in the law, not in most of life.
It’s vital to keep the two things separate. We’re really bad at that, especially when politics is involved. There is a tendency to let partisans on one’s own “side” off the hook if their unsavory associations are inadequate to establish legal culpability — criminal conspiracy — even if common sense says those associations should be disqualifying in most aspects of life.
To be less elliptical here, if a bruiser in Hells Angels colors hops off the Harley and rings your doorbell because he’s here to take your young daughter out, most parents’ first reaction is not, “I mustn’t commit guilt by association!”
The rules of criminal trials are not applicable to everyday life. We get confused about this because people like to think of trials as a “search for the truth.” We suppose the truth is the truth, whatever the context, right? Not really.
See, a criminal trial is not really a search for the truth, even though we do hope to find it. The principal objective of a criminal trial is to determine whether the government can prove beyond a reasonable doubt that the accused is guilty as charged; therefore, the accused must be acquitted if the government’s evidence isn’t strong enough. In this context — but only in this context — it doesn’t matter if we suspect that he is guilty. What matters is not what’s true but whether the prosecutors have proved their accusation.
In the vast majority of life’s situations, the truth is what counts. Hence, what’s right for the courtroom, where the truth can be beside the point, does not translate to life outside the courtroom. In the courtroom, we indulge a presumption of innocence that can be overcome only by ample proof that leaves little to chance. Moreover, we ask for no input from the accused — the person who generally has the most relevant information about whether the accusations are valid. In criminal trials, an accused need neither testify nor present any evidence in his own behalf.
This makes sense in the courtroom because at stake is whether the state can subject the presumptively innocent person to imprisonment and heavy fines. It makes no sense in other realms of life, where the stakes are drastically different. In most life situations, it would be irrational to give everybody the benefit of every doubt — as if their associations and their past conduct are irrelevant. Frequently, a person’s associations are the only thing we have to go on . . . unless, of course, he has a Nazi tattoo, in which case, while we don’t discount the possibility that he may have a tolerable explanation for it, we expect him to provide the explanation, to talk us out of our reasonable assumptions about his bad character. We don’t assume innocence and presume everything must be fine unless and until a prosecutor comes along and proves it’s not.
The problem with the L’affaire Epstein is not that we’re fulfilling our human nature by drawing conclusions about the character and judgment of a predator’s associates. It is that we have no business knowing about the fact, nature, and depth of these associations. To make them public, it was necessary to violate due process rules that keep evidence in criminal investigations under wraps unless and until the government files formal charges.
To me, the most interesting thing about the Haberman/Swan book in this regard is that, as JD Vance, Susie Wiles, and the top Trump law enforcement and communications officials brainstormed about how to handle the voluminous files collected in the Epstein investigation, it never occurred to anyone to say, “Why don’t we just rely on the time-honored rules of due process and tell the MAGA base that we can’t disclose evidence of behavior for which people haven’t even been charged, much less convicted?” It didn’t dawn on even the law enforcement brass to point out that President Trump was uniquely positioned to remind his supporters of how badly Democrats hurt him by using disclosures of information as to which he was never convicted. Naturally, with the federal cases against him having been dismissed (even though the grounds of dismissal were technical, not evidentiary), Trump believes the evidence should never have seen the light of day. He is still fighting disclosure of the prosecutor’s report in the Mar-a-Lago documents case.
Instead, the Times report illustrates that Trump administration officials just assumed an argument rooted in established law and fairness was a non-starter. Better, the brain trust decided, to indulge loopy schemes: Maybe have Tucker Carlson interview Epstein’s convicted confederate Ghislaine Maxwell and hope she exonerates Trump, as Vance suggested; or maybe even pardon Maxwell in exchange for an exculpatory account, as White House counsel David Warrington floated (in fairness to him, he seems to have been laying out potential options, not necessarily recommending a pardon as a course of action).
The president’s motley array of 2024 campaign advisers and administration aides inadvertently sabotaged him. He, too, was complicit — although to a lesser extent, no doubt because he, unlike they, always had front-of-mind the political reality that his long-term friendship with Epstein made hyping the scandal a no-win proposition for him. Not because he was guilty of an Epstein-related crime (he wasn’t) but because guilt by association defenses don’t work outside the courtroom. In the political sphere, people would make rational, condemnatory judgments about him because he chose to be Epstein’s running buddy for many years. If your concern is politics, not criminal liability, then the longer a bad story persists, the worse it is: You’re not seen in a better light just because you weren’t indicted, or because someone else’s association with Epstein may have been worse.
Nevertheless, if the Epstein crowd is going to take hits — hits that destroy reputations and careers — because of their associations, shouldn’t everyone be judged according to that standard?
Are we to accept admonitions that Adam Hamawy’s close, voluntary ties to a notorious international terrorist and to entities connected to al-Qaeda and Hamas are things that can’t be weighed because that would be “guilt by association” and “Islamophobia”? Is it really the case that if a Democrat such as Graham Platner sports Nazi ink; is embroiled in a “sexting” scandal with many women who are not his wife; and has falsely projected himself as a hardscrabble Maine oysterman when, in reality, he’s a ne’er-do-well spoiled child of the “1 percent,” we’re supposed to resist reading too much into that because he believes all the “right” things, will fight Trump, and, well, gee whiz, “everybody has a past”?
I don’t think so.