This is an argument from my side of the aisle, so to speak, that really upsets me. (Frank Rich, Dec. 13):
- Blagojevich’s alleged crimes pale next to the larger scandals of Washington and Wall Street. Yet those who promoted and condoned the twin national catastrophes of reckless war in Iraq and reckless gambling in our markets have largely escaped the accountability that now seems to await the Chicago punk nabbed by the United States attorney, Patrick Fitzgerald.
The Republican partisans cheering Fitzgerald’s prosecution of a Democrat have forgotten his other red-letter case in this decade, his conviction of Scooter Libby, Dick Cheney’s chief of staff. Libby was far bigger prey. He was part of the White House Iraq Group, the task force of propagandists that sold an entire war to America on false pretenses. Because Libby was caught lying to a grand jury and federal prosecutors as well as to the public, he was sentenced to two and a half years in prison. But President Bush commuted the sentence before he served a day.
It is not against the law to lie to the public or to start a war on false pretenses. Because those acts are not illegal, Libby was not charged with them. He was not investigated for lying to the public; no evidence to that effect was ever put before a jury. No one examined him to see whether his assertions were (a) false and (b) knowingly so. He could not defend himself in court against an accusation of deliberately misleading the American people, because no such accusation was made. If, as Frank Rich apparently wishes, Libby was convicted because he lied to the public about a war, that was a flagrant violation of the rule of law, one of whose fundamental principles is nullum crimen et nulla poena sine lege (“no crime and no punishment without a law”).
Having gotten that off my chest, I’d like to raise a more theoretical question: Would it make any sense to create a criminal law against lying to the public? The elements of this crime would have to include intent and serious consequences. In other words, it would be a defense to say that you didn’t know your information was wrong; and it would be a defense to say that your lie was inconsequential. The law could govern any public utterance, or only certain contexts, such as formal speeches given by high officials. We already have perjury laws that apply to sworn testimony; these would be broadened. Another precedent is the Oregon law that says that candidates’ personal statements in state voter guides must be true. Former Congressman Wes Cooley was convicted of falsely claiming that he had served in the Special Forces.
In favor of this reform: Lying is wrong. It can cause serious harm to other people. Lying by public officials can undermine the public’s sovereignty by giving citizens false information to use in making judgments. Although it can be challenging to prove intent, that is certainly possible in some circumstances, as we know from perjury trials.
Against: There could be a chilling effect on free speech, because people who participate in heated debates do occasionally stray from the truth. It would be bad to suppress such debates altogether. Also, criminalizing lying would shift power from the legislative and executive branches to the judiciary, which might therefore become even more “political.” The reform might reduce the public’s sense that we are responsible for scrutinizing our government’s statements and actions and punishing bad behavior at the ballot box.
Finally, it would distort the political debate if there were frequent, high-stakes battles over whether individuals had knowingly lied about specific facts. Often a specific prevarication is not nearly as important as someone’s bad values and priorities. For instance, the Bush Administration very publicly and openly denigrated the importance of foreigners’ human rights and chose an aggressive and bellicose strategy. These were not lies; they were public choices that unfortunately happened to be quite popular.