Saturday, November 5, 2016

Interlude 30. Pseudo-transparency: From the FBI to the State Bars

The ethical implications of the FBI’s presidential-election interference should embarrass the entire police and prosecutor apparatus, down to the state bars. A consensus of legal commentators criticized, even condemned, the intrusion, proving that letting cops and prosecutors announce their investigations and charges impedes rather than promotes transparency. The license of the police to selectively release information is a mainstay of their arbitrary power and a bulwark of authoritarian ideology. Allowing cops and prosecutors to publicize investigations and charges reinforces the false premise that the mere opinion of the police should have moral weight. Cops and prosecutors are not disinterested knowledge seekers. They are ideologically jaundiced and politically self-interested actors, by nature authoritarian reactionaries. We can expect that the FBI’s ranks are thoroughly Trumpite—like the police in general.

In high-profile cases, investigation announcement, wrong on principle, is moot in practice because, regardless of policy, cops will advance their political agendas through leaks. The police milieu is beyond reform. More germane is the broadcast of ordinary investigations and charges, as when the state bars post selective charging information upon issuing a mere Notice of Disciplinary Charges. We know that the state bar’s information dumps cripple the defense of charged attorneys, since the posting immediately dooms their prospects of earning a living at law. Less obvious is that these mundane practices also broadly undermine a basic civic understanding that investigation and charging announcements are entirely one-sided. Pseudo-transparency elevates the unilateral authority of the police and prosecutors. It conditions the public to accept police pronouncements. It helps create a public mentality where serious commentators contend that candidates shouldn’t be nominated for office if they’ve aroused the FBI’s purported suspicions. And on the other side in the presidential campaign, pseudo-transparency molds a public receptive to the bare pronouncements of the intelligence agencies.

The state bar’s mundane dumping of charging allegations helps create a public ready to accept the word of the police agencies, allowing them to influence even elections. Police (and state Bar) transparency isn’t advanced by encouraging the public to believe whatever information the police and prosecutors choose to reveal, this being the whole point of publicizing investigations and charges.

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