We now know that the alleged suicide letter from Jeffrey Epstein to Larry Nassar is a forgery and a fake. We will soon learn – if all the evidence is released – that some of the accusations and allegations are as phony as the letter. Some of the alleged survivors and victims never even met Epstein or others they have accused. They and their lawyers simply filed demands for money and got it without any proof. Others exaggerated what happened, while still others pimped underage girls to Epstein for $250 a girl.

The so called “smoking gun” complaint by Maria Farmer to the FBI back in 1996 proves the opposite of what Farmer and much of the media claim. In her complaint she never says that she, her sister or anyone else were ever abused. She doesn’t even claim Epstein had sex with her. If she had been victimized by Epstein she would have reported that to the FBI and they surely would have investigated it. Had they investigated Farmer, they would have found her to be a nut case who denies the Holocaust, believes that Jewish pedophiles control the world, and makes up stories that are easily disproved. If the FBI didn’t investigate, it’s because she merely said that Epstein had stolen artistic photographs she had taken of her partially nude underage sisters. The FBI doesn’t investigate theft, and semi-nude pictures of young girls taken by their artist sister hardly qualifies as the crime of the century. The Farmer complaint is the “dog that didn’t bark:” it’s the absence of any claim of physical abuse that is most relevant. 

Then there is Sarah Ransomme who claimed she had videos of Hillary and Bill Clinton, as well as Donald Trump and Richard Branson having sex with underage girls. She subsequently admitted there were no such tapes and that she made up the false accusations. If her accusations were to be released but her admission redacted – which is what the statute literally requires – the result would be unfair to the falsely accused. 

If all of the evidence is released with no redactions, it will become clear that the notorious Epstein case, with its “gotcha” partisan accusations from both sides, is essentially a modern replication of the awful McCarthyism of the 1950’s, which I experienced as a young student.

There are innocent Epstein victims who are telling the truth about having been abused, though many fewer than the media claims – just as there were real communists in the 1950s but far fewer than McCarthy claimed. . But there are also falsely accused innocents, as there were during the original McCarthyism. 

McCarthyism destroyed lives – many of them innocent – by promiscuously hurling accusations of communist affiliation, while denying those accused any semblance of due process or opportunity to defend themselves.

Nearly all the denials of civil liberties that characterized the original McCarthyism are being replicated in the new Epstein McCarthyism.

Among them 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.

Let me begin with guilt by association, 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. Both are in photos recently released by the Justice Department, though there is no evidence of any criminal behavior on the part of either of them, or on the part of many others whose names or photos have been released pursuant to the recent statute.

During the 1950’s Senator Joseph McCarthy would stand on the floor of the senate holding a list of government employees he claimed were communists or fellow travelers. Because he 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.

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.

When someone accuses another of wrongdoing, they forgo any right of privacy or anonymity. Accusations are not the same as findings 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 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.

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 did – is not a proper basis for McCarthyistic attacks.[1]

The great judge Oliver Wendell Holmes once quipped that hard cases make bad law. It is equally true that bad people create bad precedents that are ultimately applied to good people. The frenzy over the Epstein files has already caused 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. It also caused partisan accusations against political enemies who did nothing wrong. 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 any one whose names, images or emails are among them to explain, defend or justify their past connections to Epstein.

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.

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.“