News Journal: Don’t let them get away with ‘plausible deniability’

The concept of “plausible deniability” has probably been around since the dawn of civilization, but it seems to me we recently have seen it turn into something like an epidemic that cuts across business, political, and cultural lines.

According to Wikipedia, “although plausible deniability has existed throughout history, that name for it was coined by the CIA in the early 1960s to describe withholding of information from senior officials in order to protect them from repercussions in the event that illegal or unpopular activities by the CIA became public knowledge.”

Even after King Henry II of England asked, “who will rid me of this meddlesome priest,” he was plausibly able to claim innocence when Becket was subsequently murdered. A few hundred years later (and just as far removed in terms of significance), New England Patriots quarterback Tom Brady said in a 2011 television interview “I like deflated balls.” But of course he had nothing to do with “Deflategate,” a claim he is pursuing in his appeal to reverse the NFL’s decision to suspend him for four games.

Did he purposely have the balls deflated? Other quarterbacks insist that simply from the feel of the ball Brady had to know they were under inflated and therefore illegal by the NFL’s standards. Does it really matter whether he actively conspired with the equipment managers or they just did what they knew he wanted?

Let’s move from sports to finance. Steven Cohen was the founder and CEO of a hedge fund that from 1992 until 2014 earned an average annual return of 30 percent, a record unprecedented and unequaled in the industry. SAC Capital Advisors LP closed its doors last year after it agreed to a $1.8 billion settlement of an insider trading case brought by the federal government.

In addition to the fine, eight of SAC’s employees pleaded guilty or were convicted of insider trading. But not Steve Cohen, who, according to Reuters, “personally signed off on the trades” that were under investigation. He was famously a hands-on boss, in fact, who created a ruthless culture where only those who produced superior returns survived. But prosecutors could not prove he personally knew the trades were based on insider information. Thanks to plausible deniability, one of the world’s richest men is back in business as the head of a new firm.

On to politics, where plausible deniability too often seems like business as usual. The most obvious recent example is what we now call “Bridgegate.” A number of investigations have concluded that New Jersey Gov. Chris Christie did not have advance knowledge of the George Washington Bridge lane closings that may have been an act of political revenge against the mayor of Fort Lee. I have no reason to question those conclusions. But so far David Wildstein, a high school friend who was given a job at the Port Authority that had jurisdiction over the bridge, has pleaded guilty to two criminal counts. Indictments have been filed against Bridget Anne Kelly, Christie’s former deputy chief of staff, and Bill Baroni, a long-time political ally who Christie appointed Deputy Executive Director of the Port Authority.

I doubt that Gov. Christie ever said anything like “who will screw over this meddlesome mayor for me,” but I also doubt that three people who were politically close to him did anything contrary to what they thought he wanted. That’s not how staff and appointees operate. That is, however, how plausible deniability works.

Every day, sports coaches, CEOs, and politicians stand up at some podium and accept awards for accomplishments that are the result of hard work by people who work for them. There’s nothing wrong with that. The awards are justified because leaders set goals and are ultimately responsible for their implementation. But there is something wrong with taking all of the credit for what your staff does and none of the blame.

I am not suggesting we should in any way abandon the principal of innocent until proven guilty or change our criminal justice system. But I do think we should recognize plausible deniability when we see it, and hold leaders accountable in the court of public opinion.

Ted Kaufman is a former U.S. Senator from Delaware.