GUEST ROOM | The Potemkin Process

Joseph Margulies (CAS ’82) is a Professor of the Practice of Government in the College of Arts and Sciences.

As expected, the Ad Hoc Special Committee of the Board of Trustees has absolved President Michael Kotlikoff of all wrongdoing in connection with the events of April 30, 2026. I trust no one was taken in by the administration’s Potemkin process, which barely aped the look of an independent investigation, but which we are now expected to swallow as the real thing. I don’t know what happened that evening, but I study, teach and write about policing, and know when law enforcement has been co-opted to playact legitimacy. This misuse of coercive authority inflicts a great cost that needs to be made plain.

The best way to understand the idiocy of what the administration has done is to compare it to what might have been. After all, this isn’t nanoscience, and we know what a truly independent investigation looks like. Most importantly, it has to be, um, independent. Though some investigations can be run in-house, this is only appropriate when the inquiry “does not involve high-level executives.” It shouldn’t have to be said, but when the investigation involves the boss, no one who is ultimately answerable to the boss should play a part.

And of course, it is no answer that the president recused himself from this investigation, since Cornell staff ultimately answer to him and him alone. The University bylaws could hardly be more clear: “All University personnel, whether academic or nonacademic, shall be subject to the administrative authority of the President as chief executive and educational officer.” Among other things, this “administrative authority,” makes the president responsible “for implementing a system of budget administration to coordinate and control the expenditures and other financial operations of all divisions of the University.” 

While this would have been enough to disqualify any internal investigator, asking the Cornell University Police Department to conduct the investigation was particularly boneheaded. There is only one thing in American life that the police can do that no one else can do: the police can control the movement of an otherwise free adult. Only a cop can compel you to move when you would rather rest and stop when you would rather go. It is not an accident, for instance, that when the University wants to exclude someone from campus, that order is served by the CUPD. This is also why know-your-rights training teaches people that the first question they should ask in an unwanted encounter with the police is whether they are free to go. As many of our students know firsthand, talking to the police is a uniquely perilous encounter, since the results can ultimately affect their liberty.

All this means that the Cornell officers who approached the current and former students who were supposedly present on April 30 were not simply neutral, independent investigators. They were (also) cops who had been tasked with investigating whether their boss had done anything wrong. A reasonable student would have wondered whether their statements could be used against them if the investigation exonerated the boss, as they rightly expected it would. Under these circumstances, it’s hard to see how cooperating with the police was in their interest. If I had been a student in their position, I would not have spoken with the police, and if the students had sought my advice beforehand, I would have advised them not to cooperate with the investigation without prior assurances that their statements would never become part of a criminal charge or University disciplinary process. And in fact, no such assurances would have been forthcoming; as we now know, the students were referred for prosecution, but the Tompkins County District Attorney’s office wisely determined no charges were warranted.

A truly independent investigation, therefore, would have been conducted by people with no connection to Cornell or its trustees, and any information learned in the investigation would have been shielded from any criminal case or University proceeding — precisely the opposite of what took place. And since the deficiencies in the process were blazingly obvious from the outset, we have to believe the trustees knew it was a joke when they set it up. But they probably also understood that the very obviousness of the deficiencies meant the result would not be widely accepted. So, to give it an extra patina of legitimacy, they law-washed it. Once the results were in, they asked some unknown lawyer — the so-called “independent legal counsel” — to give it some unknown once-over and bless the result, which counsel dutifully did.

Were it not for the cost of this tomfoolery, it would be hard to take any of the investigation seriously. But the cost should be understood. Ham-handedly creating the appearance of a legitimate process — one that everyone can immediately see is a sham, but that no one can challenge — discredits the institution and diminishes faith in its operation. Fundamentally, it is precisely what plays out in the world around us. The Trump administration likewise invokes the machinery of the law and co-opts law enforcement to create lawlessness. What the trustees have done is not on the same scale, but it sings from the same hymn book, and for that, they should be ashamed.

I don’t know what happened outside Day Hall on April 30, and nothing in this column should be read to suggest that I have decided what a legitimate investigation might conclude. But I know when I’m being gaslit and I know when policing is misused. Most of all, I know what an independent investigation looks like, and this ain’t it.

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