Being Fair To Elizabeth Warren: An Ethics Challenge

It appears that Senator Elizabeth Warren may have blundered into another ethics controversy.

On  a Harvey Weinstein-themed segment of “Meet the Press,” Warren declared that she also had a  #Me Too” story to tell. As she related the memory to host Chuck Todd…

“I was a baby law professor and so excited to have my first real teaching job and there was a senior faculty member who would tell dirty jokes and make comments about my appearance. And one day he asked me if I would stop by his office, which I didn’t think much about, and I did, and he slammed the door and lunged for me. It was like a bad cartoon. He’s chasing me around the desk trying to get his hands on me and I kept saying ‘You don’t want to do this. You don’t want to do this. I have little children at home. Please don’t do this…and trying to talk calmly, and at the same time what was flickering through my brain is, if he gets hold of me, I’m gonna punch him right in the face.”

Jeffrey T. Kuhner is the host of “The Kuhner Report” on WRKO AM-680 in Boston. I know the station well, having grown up listening to it. Kuhner is not an admirer of Warren, to say the least, and decided to try to check the veracity of her “Me Too” tale. His conclusion: she’s lying. Kuhner writes on his blog:

The faculty member Warren is referring to is law professor Eugene Smith, who was her mentor and close friend at the University of Houston. The reason we know this is because at Smith’s memorial service in 1997 Warren recounted and spoke about the incident. But the account then was dramatically different. In fact, the very opposite.

According to Warren, Smith was her buddy and they were joking around in the office, in which she was laughing uproariously. Numerous witnesses say that, even when speaking at the memorial service, Warren laughed about the alleged incident. Which begs the question: Who cracks jokes about being sexually assaulted? Unless, of course, it never happened.

More importantly, Warren conveniently—and deliberately—left out a seminal fact: Smith suffered from polio. That’s right. He was unable to walk or move around without a wheelchair or crutches. According to his former colleagues, Smith’s polio was so severe they felt pity for him.

Warren herself, while trying to be humorous at Smith’s memorial service, inadvertently revealed how utterly disabled he was. She told a second story about when Smith took her to the faculty lounge for lunch. Smith ordered a steak. After it came, he then pushed the plate towards Warren, asking her to cut it up for him. “Can’t you see I’m a cripple?” he allegedly told her. “Sure. But I thought you knew that when you ordered the steak,” Warren retorted, which she says made him laugh.

The real point, however, is obvious. How does a man who is—in Warren’s words—a “cripple,” unable even to cut his own food (never mind walk), chase a woman repeatedly around a desk seeking to sexually assault/rape her to the point that she is so terrorized she is wondering how to escape though the door? The answer: It’s impossible. This is why many of Smith’s former colleagues say that, although they recall the incident, it was dramatically different from how Warren is describing it now. According to them, it was one big joke. Smith pretended to chase her around the desk, and Warren pretended to be shocked and outraged.

Moreover, in 1997, Warren was then a law professor at Harvard. If she had really been assaulted by Smith, then why did she travel all the way to Houston, deliver a glowing eulogy and praise Smith for his “character” and “moral integrity”? A woman who was truly sexually abused or harassed would never have done it. In fact, she would want nothing to do with him. Warren, however, did do it because she wanted to do it. She liked, even admired, Smith.

From this, Kuhner concludes,

“Warren may be the most depraved, cynical and mendacious member of Congress—and that’s saying something. Think about it: She is willing to smear the memory of a dead, disabled friend in order to win votes and prop up her feminist image.”

If Kuhner’s conclusions are correct, then Warren has, not for the first time, engaged in cynical dishonesty for political gain. It is not, however, fair to state that as fact at this point. It is important to determine if Kuhner is correct.

It is important because the character and trustworthiness of Elizabeth Warren is very much in doubt. I admit that I am inclined to believe Kuhner, because I am inclined not to believe Warren. She has shown herself—sufficiently for my analysis, at least—to be a demagogue, a hypocrite and an individual who will misrepresent herself for personal gain. However, that is only a bias that interferes with my ability to be fair to Warren in this episode. The fact that she, for example, gamed two universities and took advantage of their affirmative action hiring programs by claiming to be of Native American stock with no documentation whatsoever does not mean that she was not sexually harassed. When I heard Warren’s story, it didn’t occur to me at that moment that her story wasn’t true. I assume that most women, maybe all women, of Warren’s age were sexually harassed in the workplace, and I know that they were discriminated against. I don’t think every woman has been chased around an office, but I know from women I trust that it has happened, and based on the awful news and law stories I encounter in my work, I know it still happens.

However, Kuhner is right: if Warren concocted this story out of a distorted version of the truth, smearing the character of a departed friend and mentor to do it, that is vile conduct that is signature significance for, as he says, someone who is depraved, cynical and mendacious. The woman is a national political leader, a power in the Democratic Party and a role model for young women, and she might run for President. We need to know if she is depraved, cynical and mendacious, or, from my perspective, just how depraved, cynical and mendacious she is. How do we do that?

To begin with, the news media has an obligation to investigate and give the public the facts. This bears watching. The mainstream news media has gone to exotic lengths to investigate potentially embarrassing episodes involving Republican Presidential contenders, but prompting them to investigate their favorite liberals is often strangely difficult. Kuhner has given them more than enough to do their duty, if they want to.

He hasn’t given us enough, however.  Kuhner’s story has infuriatingly few details, and what he describes doesn’t entirely make sense. Warren told a story about her professor joking about sexually assaulting her as an anecdote at his memorial service? How odd. She was laughing hysterically while a man in a wheelchair was pretending to “chase her around the desk”? That was some impressive faculty they had at the University of Houston. I worked in close proximate to the faculty at Georgetown Law Center for four years, just a few years after Warren was a “baby law professor,” and can’t get my head around the mental picture of any of them acting like this, especially the faculty member in a wheel chair.

The starting point is to ask Warren about it. Was the anecdote about Smith, as Kuhner surmises? If it wasn’t, who was the professor who chased her around the desk?

Here Warren might face the consequences of accusing someone of misconduct who can’t defend themselves. Doing that, especially for personal gain, so long after an incident occurred is, in my view, almost per se unethical. The accused has no recourse, and his or her reputation is damaged with only the unsubstantiated word of one individual. Warren, in talking to Todd, told more about the incident than she had to, and enough that the individual involved could be identified, if the account is true.

If her story was indeed about Smith, Senator Warren has some explaining to do. Unlike Kuhner, I don’t find the fact that she was “laughing” during an alleged attempt at sexual assault was occurring is dispositive. The laughter may have been nervous, or a defense mechanism, or because she was trying to defuse situation. Since Warren has shown the tendency to shade the truth for her purposes, it is also plausible that the version of the incident she used at the memorial service was the false one. Nor is it necessarily hard to believe that she would travel to Texas to appear at a memorial service for a well-regarded colleague with whom she had a personal grievance. Anita Hill, you will  recall, continued to have a close relationship with Clarence Thomas long after the incidents that she later claimed constituted sexual harassment; that’s significantly more substantive than agreeing to speak at his memorial service.

However, if Smith was the professor Warren was talking about on “Meet the Press,” and he did indeed have polio, the chase around the desk was almost certainly a lie.

It is unfair to Smith to allow the assumption to stand that he behaved this way if he did not, would not and could not. It is unfair to Warren, if it is not Smith, for her veracity—in this instance– to be impugned based upon mistaken research by Jeff Kuhner. It is unfair to the American public to allow it to be deceived as Warren benefits from a cynical and self-serving deception that abuses her dead colleague’s reputation and misrepresents his character, if that is indeed what she tried to do.

Whatever the truth is, it needs to be clarified.

Let’s start by asking Senator Warren how a polio victim chased her around his office, or, in the alternative, who her harasser was that people are unjustly assuming was the late Eugene Smith.  It would also be helpful to know who that close friend was. As Warren, a lawyer and former law professor, should know, she opened the door. She can’t object now.

10 thoughts on “Being Fair To Elizabeth Warren: An Ethics Challenge

  1. Yeah, I missed the unequivocal evidence that it was Smith. I’m not sure I care – like you, I don’t doubt that this was not uncommon for a woman her age in a male dominated profession. I don’t know that she owes more of an explanation, I’m willing to take her at her word until I see some convincing evidence to the contrary.

  2. I’m confused. Kuhner knows she’s talking about Eugene Smith because she told the same story once about him, except it was a completely different story? How can we be sure they are, in fact, referring to the same incident?

  3. “The reason we know this is because at Smith’s memorial service in 1997 Warren recounted and spoke about the incident. But the account then was dramatically different. In fact, the very opposite.”

    This is unfair to Warren, as It seems rather obvious that the Smith incident and what she is claiming are two separate incidents. Since Warren and Smith were close, it is possible Warren confided to Smith about a serious incident with another male colleague, which eventually led to a comical exchange about it between Warren and Smith. It is also possible that the incidents are unrelated, or that Warren is making it up.

    Either way I am with Eternal Optometrist — I don’t think she owes an explanation. Is the media really going to press a sitting Senator to name the accused 30 years later, where the accused is either elderly or dead, and not in any position to defend himself? If she is depraved enough to make the story up, she is depraved enough to smear an innocent. And if she is telling the truth, there is no utility in forcing her to reveal more details, other than to clarify, as I assume she will, that it was not Smith.

  4. The Boston Globe reported on this before Kuhner picked it up:

    It seems that a fellow named Mixon inclouded the anecdote in a book about the Houston law school, published in 2012. Per the Globe article, Warren didn’t seem to be aware that the eulogy had been memorialized in a book until the Globe contacted her. It also seems like she’s confirming that it is the same incident she related on TV.

    Mixon, now 84 years old and five years after the book was published, now says that he may have been wrong to state that Warren was laughing as she told the story, and that he has discomfort about describing it lightly in the book, “Probably more lightly than it should’ve been treated, certainly, in today’s retrospective world.”

  5. 1997? Could be Warren was still understandably giddy from being recognized that same year by the Fordham Law Review as “Harvard Law’s 1st Woman of Color?”

    ”We need to know if she is depraved, cynical and mendacious”

    The most recent POTUS election shows that those…um…characteristics present no barrier to mustering the necessary following to run for the highest elective office in the known Universe.

  6. I mean…. Being fair is all well and good, but I don’t think my opinion of her will change much based on the outcome of this episode.

    Elizabeth Warren has a history of lying for personal gain… If this were true, it would be yet another example… Maybe if would shake some people off the fence the right way, but for someone like me that has a pretty good idea of just who Warren really is… it changes little. If Kuhner is wrong about the target (he doesn’t appear to be) or represented the facts incorrectly (it doesn’t appear he has) or if the “facts” he was working with were in error (possibly), and Elizabeth Warren didn’t, in this case, lie for personal gain…. Ok? She still lied to take advantage of affirmative action all the way through a career at Harvard law, and then became a golden girl for a movement that has problems with appropriation and white privilege.

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