It appears we have a new category in law, according to former special prosecutor Mueller. In addition to “guilty” or “not guilty” we now have “exonerated” and “not exonerated.”

Is “exonerated” a higher order of “innocent” then “not guilty,” and does “not exonerated” mean a person is “guilty” or “not guilty”?

There are grave and frightening dangers in introducing the concept of exoneration into our legal system. It suggests a person may still be presumed guilty even if the decision was made not to prosecute him, or even if a jury rendered a verdict of not guilty. Would the jury in the O.J. Simpson murder trial have a verdict of “not guilty” as they did, or “not exonerated” had they been given the choice as the former special prosecutor seems to have recommended.

There is absolutely nothing in Justice Department rules governing a special counsel that gives him the power to exonerate or not exonerate. For good reason; prosecutors and special counsels hear evidence on one side of the case. Their job is to determine if there is probable cause to send the case to a judge or a jury for a full trial, with cross-examination, defense witnesses and defense lawyers.

Alan Dershowitz gives an excellent review of this issue in an op-ed July 26 on that is well worth reading. It not only lays out the legal but also the political implications of weaponizing the “exonerate” vs. “not exonerate” issue and why it should be allowed entrance to our legal system.

Warren Cohen