lying to law enforcement

Popehat Nails Dershowitz For Misrepresenting The Law

/ Jack Marshall / 41 Comments

Ken White of Popehat comes out guns blazing to take celebrity lawyer Alan Dershowitz down for misrepresenting the law in several of his increasingly frequent media appearances. Ken nails his target, too. Even the former prosecutor’s characterization that Dershowitz is lying is not excessive or unfair.

You need to read the whole post, for it is superb, thorough and airtight. Here is a precis, however, in Ken’s words, not mine.

The subject of Professor Dershowitz’s dishonesty — for the purpose of this essay — is General Michael Flynn’s lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not “material” — that is, meaningful. He claims that the lies were not “material” because the FBI knew at the time Flynn was lying, and was not fooled…

Dershowitz has promoted the same point explicitly in writing:

When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.

This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz’s column could be forgiven for thinking that’s what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it….

I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument…

n short, there is no credible argument that Alan Dershowitz’s repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it’s dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn’t involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don’t. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing.

Continue reading →

We Have A Winner In The “False Hastert-Clinton Equivalency Sweepstakes”! Congratulate Slate’s William Salatan!

/ Jack Marshall / 12 Comments

I don’t know when William Salatan jumped the ethics shark at Slate; I used to find him fair, reasonable and perceptive. Now he has apparently gone over the Dark Side, the shadowy, ethics-free realm where the Clintons are victims of a vast right wing conspiracy. Too bad.

There is some compensation for Salatan, though. He just penned the perfect example of the Shameless Left’s attempt to exploit the fall of  former GOP Speaker Dennis Hastert to exonerate Bill Clinton, and by extension, his Lady MacBeth, Hillary, as she tries to complete her rise to power fueled by the public’s acceptance of her husband’s corrupt ways.

You can read it here, and I would hope that most of you would be able to spot, and quickly, the multiple blatant ethics bait-and-switches that Salatan employs. But for those deceived, let me provide some guidance.

Many commentators have made the point that Hastert’s prosecution looks politically motivated and unfair. He is not being prosecuted for the alleged sexual misconduct with a student believed to be the source of an extortion attempt, and paying a blackmailer is no crime. He is being prosecuted for lying to the F.B.I about the reason for his large cash withdrawals. Says Salatan:

“The critics have a point. Lying under oath and evading transaction surveillance are derivative crimes. Usually, they’re prosecuted only if the underlying offense is serious and demonstrably true. You can argue that if the core allegation hasn’t been proved, or if the core issue isn’t grave enough, it’s cheap and abusive to proceed with prosecution based purely on derivative charges. But Hastert can’t make that argument, because he made the opposite argument 17 years ago. He threw the book at President Clinton for lying about sex.”

Thus Slate’s misleading and ignorance-seeding headline, “Hastert’s Hypocrisy.” There is no hypocrisy. Moreover, like Professor Kerr, Salatan mistakenly says that Clinton was impeached for “lying about sex.”  That was a Lanny Davis/Clinton spin talking point, and it is false.. Continue reading →

Unethical Quote Of The Week: Law Professor Orin Kerr

/ Jack Marshall / 19 Comments

“If I understand the history correctly, in the late 1990s, the President was impeached for lying about a sexual affair by a House of Representatives led by a man who was also then hiding a sexual affair, who was supposed to be replaced by another Congressman who stepped down when forced to reveal that he too was having a sexual affair, which led to the election of a new Speaker of the House who now has been indicted for lying about payments covering up his sexual contact with a boy. Yikes.”

—Prof. Orin Kerr on The Volokh Conspiracy.

Hatert as coachI thought more highly of Prof. Kerr, who belongs to the left end of the group of provocative libertarian legal scholars who make up the commentariat on the erudite blog, recently annexed by the Washington Post, than to believe him capable of abusing his authority with this kind of hackery. He is endorsing  the deceitful “logic” of Hustler publisher Larry Flynt.

Well no, Professor, I guess you don’t understand history properly, or government, or ethics for that matter. Clinton was not impeached for lying about a sexual affair, though that was the tactical spin placed on the impeachment by Clinton’s defenders.

Bill Clinton  was impeached for lying about a sexual affair under oath, before a judge, in court, an act that would get you, as well as any other lawyer, disbarred. If you don’t obey the law enough to be a lawyer, you don’t respect the law enough to be trusted to defend the laws of the land as President of the United States. He was also impeached for lying to a grand jury, another crime, and using his high office, his appointees and his staff to cover up his lies, which is obstruction of justice.

He was also impeached because he was President of the United States, the role model and exemplar for good citizenship, lawfulness and good behavior for the entire nation, and because the relationship in question occurred during his tenure in office, during the working day, and  with a low-level employee in violation of the principles under lying the sexual harassment law he had signed into law himself.

None of this was true of Newt Gingrich, Bob Livingston, and Dennis Hastert, the three GOP Speakers Kerr is referring to. Continue reading →