The Corner

Law & the Courts

‘Cooperate With Your Accusers Or You Are Guilty’

In New York magazine, Jonathan Chait writes:

People who want to demonstrate their innocence make displays of cooperation with investigators. They promise to tell them everything they know, and encourage their subordinates to do the same. Trump did the opposite. He refused to give the special counsel an interview. He used his pardon power to encourage his subordinates to withhold cooperation.

This is a good example of the rank illiberalism that this investigation has provoked in many people — people who, in almost any other circumstance, would recoil in horror at such arguments.

“People who want to demonstrate their innocence make displays of cooperation with investigators”? Tell that to the Fifth Amendment. Tell that to the majority opinion in Carter v. Kentucky. Tell that to anybody who has been accused of something they haven’t done, but who understands nevertheless that there are risks involved in taking part in any investigation. To put it mildly, law enforcement — perhaps especially federal law enforcement — has a bad habit of finding process crimes to prosecute when it cannot find any underlying transgression. And Trump is the president! In a whole host of different circumstances, it is smart for the accused to stay away.

Chait’s first tweet promoting this piece read:

If you refuse to cooperate with the investigation, you can’t claim you were cleared. That’s how obstruction of justice works.

The second one read:

If an accused person wants to be considered innocent in the court of public opinion, they cooperate with the investigation. That’s, uh, not what Trump did.

Perhaps in the interim, Chait read the text of the Fifth Amendment. But even his second, heavily-watered-down claim is illiberal. If we start encouraging the “court of public opinion” to regard as guilty those who remain silent or “decline to cooperate with the investigation,” we will not keep our legal protections for long. Law, like politics, is downstream of culture. “Cooperate or we’ll have to assume you’re a crook” is an ugly, destructive position to be selling.

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