As the #MeToo movement fades into a morass of lawfare, the New York Philharmonic has sidelined two of its musicians, Principal Oboe Liang Wang and Associate Principal Trumpet Matthew Muckey, in response to sexual assault accusations dating back to 2010 that were rehashed last month in New York magazine. Wang and Muckey have faced these accusations before—twice—and were cleared both times.

Fourteen years ago, during a Philharmonic visit to Colorado’s “Bravo! Vail Valley Music Festival,” Wang’s and Muckey’s former colleague, Assistant Principal Utility Horn Cara Kizer, alleged that Muckey, possibly with Wang’s help, sexually assaulted her in a private home after a post-performance party. She claimed to have no memory of the incident but reported it to the police and suggested that she had been given a date-rape drug. Muckey admitted they had sex, but claimed it was consensual. Kizer, who was married to another man at the time, denied it.

Citing a lack of evidence, the local district attorney’s office declined to prosecute. Two years later, the Philharmonic denied Kizer’s tenure application and she left the orchestra. A supportive Philharmonic colleague who is now apparently Kizer’s lesbian lover (Kizer and her husband divorced in 2014) told New York that she believes both women were denied tenure in retaliation for Kizer’s complaint. According to media reports, Kizer is also believed to have signed a nondisclosure agreement with the Philharmonic in return for a six-figure sum.

Muckey and Wang continued their careers undisturbed until early 2018, when, only a few weeks after the Harvey Weinstein allegations broke, the Philharmonic decided to revisit the matter.

The case was reviewed by an outside investigator, former U.S. federal judge Barbara S. Jones, a Clinton appointee who is currently the court-appointed monitor of former president Donald J. Trump’s New York business holdings. Jones evaluated the case using the “preponderance of the evidence” standard—often described as “50 percent plus a feather”—the same standard mandated for Title IX campus sexual assault investigations by the Obama administration, which may again become mandatory later this year, pending legal challenges. Following a five-month investigation, Jones concluded Muckey and Wang had “engaged in misconduct warranting their termination.” In September 2018, both musicians were fired.

Muckey and Wang appealed to their union and were placed on unpaid leave pending the outcome of its investigation. In April 2020, arbitrator Richard Bloch ruled—after eight months of hearings—that Muckey and Wang should be reinstated with back pay.

Through attorneys, the musicians issued statements of vindication, noting that the allegations were “unsubstantiated” and that “the Philharmonic had simply failed to prove any misconduct.” The Philharmonic complied with Bloch’s ruling insofar as it could—by April 2020 it had ceased performing due to the COVID-19 pandemic—but publicly stated “we are profoundly disappointed” by the outcome and “stand by our original actions and decisions in this matter.”

Despite the Philharmonic’s potentially prejudicial statements, after the pandemic Muckey and Wang returned to active work without incident until journalist Sammy Sussman revealed the results of his own “investigation” in New York magazine. Sussman acknowledges that his story is told almost entirely from Kizer’s side and is based on interviews with her personal friends, supportive colleagues, lover, and Sussman’s own non-legally trained review of public documents. Muckey, Wang, Jones, Bloch, Kizer’s ex-husband, the New York Philharmonic, the Colorado district attorney’s office, and others with relevant knowledge do not appear to have participated beyond statements from the musicians’ attorneys again pointing out that the allegations were already thoroughly reviewed and twice dismissed.

Nevertheless, the cancel culture machine came into swift operation. Within days, Philharmonic President and CEO Gary Ginstling declared that “the details revealed in the New York magazine article are horrifying” and announced Muckey and Wang “are not being assigned to any Philharmonic activity” pending a future decision that “will be made in due course.”

“Due course” will naturally involve yet another investigation. This one will be led by attorney Katya Jestin , co-managing partner of Jenner & Block. Jestin’s bio with the firm claims that she has “an unwavering commitment” to “promotion of diversity, equity and inclusion.” Her past exploits include pro bono representation of Majid Khan, an al Qaeda operative held in Guantanamo Bay who pleaded guilty to conspiracy in an Indonesian terrorist bombing that killed 11 people and was later released to “humanitarian resettlement” in tropical Belize. For good measure, Jestin is also a member of her firm’s overwhelmingly female “Post-Dobbs Task Force,” which claims to “counsel businesses that are confronting legal exposure for retaining their employees’ and consumers’ access to reproductive healthcare and for providing employees with travel benefits to go to states where abortion remains legal.”

With all the impartiality that suggests, Ginstling said he is “empowering” Jestin “to look at everything and leave no stone unturned, including any new allegations.” He further pledged to reveal all investigative findings to the Philharmonic community and the general public, and to review the ensemble’s audition and tenure policies to provide more “equity.” Alongside Jestin’s far-ranging investigation, the Philharmonic has retained yet another attorney to receive general harassment complaints from anyone with knowledge of them.

While suffering through their third investigation—and absent any factual determination of guilt at any time—Muckey and Wang are steadily losing their careers. Wang has been removed from his position at the Taipei Music Academy and Festival, suspended from the jury of Germany’s ARD competition, and placed on leave from his teaching post at the Manhattan School of Music. The Manhattan School is also conducting its own investigation, despite admitting that “none of the alleged conduct took place” there. In February, the Oregon Bach Festival canceled a recent contract with Muckey, apparently on the basis of earlier rumors about him, though news of the incident has been widely publicized since the New York story was published.

Musicians with a number of orchestras have posted collective messages of solidarity with Kizer on social media. An open letter signed by hundreds of music professionals has called on the Philharmonic to release Kizer from her NDA so that she can participate fully in Muckey’s and Wang’s triple jeopardy. A public petition repeating that call on Change.org, discriminatorily implied that Bloch’s 2020 arbitration ruling might be invalid because he is a “77-year old white man.” According to the New York Times, the Philharmonic’s orchestra committee informed Ginstling that the ensemble’s “overwhelming sentiment” is to “believe Cara” and doubt Muckey and Wang. “Sentiment,” however, is hardly evidence.

If Jestin finds against Muckey and Wang, the union local may not be as helpful this time. The harpist Sara Cutler, who serves as the union local’s new president and executive director said, “I am horrified by what was in the story and we are committing the full resources of Local 802 to erase the culture of complicity that has raged at the N.Y. Philharmonic for too long,” adding that the decision to keep Muckey and Wang offstage “are good first steps but they can’t be the last.” It would seem she and her colleagues may also want to erase presumption of innocence. And in the meantime, the process will continue to be the punishment.

The majesty of the law, however, may save the two beleaguered musicians. On May 1, they both filed lawsuits against the Philharmonic and the union for breach of contract and demanded reinstatement and unspecified damages. As one musician with knowledge of the parties anonymously told the New York Post, “the Philharmonic is so f***** right now.” With any luck, he is right.