Can Politicians Be Held Accountable for Lying? | Rescuing the Rule of Law

[music] >> Good evening and welcome to Rescuing the Rule of Law, a series of shows exploring major threats to our 250-year-old American system of equal justice and due process for all. It is this rule of law with its checks and balances that protects the rights and freedoms of the people and stops us from falling into a dictatorship. Hello, I'm Roger Katz, a former state senator and Augusta attorney. This show is produced by Maine Lawyers for the Rule of Law, a group representing hundreds of Maine lawyers devoted to defending the rule of law built into our federal and state constitutions. On tonight's show, Portland attorney Bill Harwood and I have an opportunity to by Zoom to speak with Andrew Weissmann, nationally known attorney, writer, and legal commentator. Andrew worked at the Justice Department for almost 20 years. He was the lead prosecutor in Robert Mueller's special counsel office, chief of the department's fraud office, and general counsel for the FBI. He's a frequent contributor to the New York Times, MS Now, and the Washington Post. Andrew is the best-selling author of his latest book, Liars' Kingdom, and he's coming to Maine on September 10th to USM's Hannaford Hall to speak with a panel of distinguished Mainers about his book and attacks on our democracy. We hope many of you will join us then. Let's begin. Andrew, welcome to the show. >> Thanks for having me. >> I understand we're talking to you in in Europe today. Is that right? >> That is correct. >> Your new book, which we have a copy of and which we both read, is entitled Liars' Kingdom and you suggest that we are living in one. What do you mean by that and and why write that book now? >> The impetus for this book was sort of twofold. One, I was thinking a lot about if we get out of the situation we're in now, what needs to change? Um what are the sort of structural, institutional things that we could do differently? Um and that that was sort of the big picture. Um I I didn't think it was going to be healthy for us to have the attitude that oh, we get out of this and don't worry, we never need to look back and it will never reoccur. We've seen Trump 1.0 and Trump 2.0. Um and I I thought that would be like sticking your head in the sand. Um and then specifically why I was thinking about lies really has to do with my career. I was a prosecutor for many, many years in the federal prosecutor and I thought about all of the ways in which we criminalize lying except we don't do that when it comes to people running for office or politicians and it just seemed so anomalous to me that for instance, if you lie to Congress at a hearing, that is a crime, but if Congress lies to you, that is not [clears throat] a crime. There there only political repercussions potentially, um but no legal repercussions. >> Andrew, I I'm fascinated by this subject. You discuss a number of ways that our democracy is under attack today and one of the examples which has gotten so much attention, particularly in the legal community, is this attack on law firms for essentially doing what we all think of as our job of representing people who need representation, but in their case they were people who are opponents of this administration. Um I'm curious your thoughts on on how those law firms responded and the uh way in which the uh Trump administration has through executive orders uh put them in a tough spot. >> Sure. Well, full disclosure, um there were four executive orders that were challenged and there were many more that were threatened and one of those executive orders with respect to Jenner & Block law firm uh is is a law firm that I used to work at and in that executive order I was featured prominently. >> So, let me just stop you there. So, you were actually one of the people that the executive order coming from the White House pointed out as to why Jenner & Block was in in the sights of the White House? >> Yes, absolutely. So, um its major sin uh according to uh President Trump was having hired me um when I returned from government having worked on the Mueller investigation and then prosecuted for many years including um being the general counsel of the FBI. Um so, those executive orders um uh in in many ways they were sort of brilliant as an authoritarian tool um because they sought to impose all sorts of restrictions on those firms in terms of um security clearance um privileges that they could get from the government um a whole series of um measures that the president said he was going to undertake. Um four law firms including Jenner & Block challenged those. Each of those four executive orders in front of four separate judges, judges appointed by um Democratic and Republican presidents, and all four were struck down as violent of the First Amendment. I should say the one with which related to me found that I my personal First Amendment rights were violated. But, as you know, many, many law firms that either um worried about being targeted or um were actually targeted. Um so, Paul Weiss would be in the latter category. Um a caved um and agreed to all sorts of conditions um as a way to not suffer the consequences. Um I have I have my own views about what should happen and what they should have done. But, it is worth remembering that all of the law firms are victims. Um so, what we're really talking about is what was the best way to respond. But, you know, even though I disagree with Paul Weiss did, it is important to remember, you know, they didn't ask for this to happen to them. >> It's it's interesting to some of us to think about how we would all hope that these law firms would stand up to for their rights and for the rule of law, but given the big business of of law today, is it realistic to expect these law firms to take on the federal government with all of its power and resources? >> Yes. It is. Um you know, I think one of the things that before Tru- Trump sort of 1.0 and certainly 2.0, I used to think back to um the McCarthy era. I wasn't old enough to live that, but I talked a lot um to my parents about it. I started the book actually with a conversation I had with them about the McCarthy the Joseph McCarthy era. And, you know, I always um when learning about it thought, well, how could those people have caved? I mean, it was so so obviously what the right thing to do is. But, we are seeing that and um and we see, you know, you can come up with the sort of pros and cons of doing what Paul Weiss did, but to me um you know, this is I I as I've said to your friends, you know, there's an advantage a rare advantage of aging, which is that it really makes you look in a mirror and say, "Who am I? And who do I want to be in the sort of remaining time on this earth?" Um and with these law firms, you have to remember that we're talking about is and I'm just going to give some hyperbole is they may have profits per partner um at Paul Weiss of, I don't know, six, seven, eight million dollars per partner. Um by the way, that may be an understatement. So, what we're talking about is, "Oh, so, you know what? So, maybe it would be only 4 million." Um the president of Princeton, when he was dealing with this, um full disclosure, I went to Princeton, the the president of Princeton also used to teach at NYU Law School, where I teach, um and I'm a huge fan of his. What he said in standing up to the targeting is, "That's what we have an endowment for." Um and he obviously had the backing a few years make statements like that of his board. Um and I think that's what you have to do and you also need to sort of essentially form a NATO, um you know, an alliance as as some people have to to say, "I'm not going to be targeted." And one final comment is you know, you could analogize this to what happened right after 9/11, where law firms um were starting to represent people uh, Guantanamo Bay. And at first, there was some pushback from the administration about, you know, you're either with us or against us. And the law firms really stood up to them. And within a very short amount of time, it was just accepted that as part of the legal profession, you represent people, even people who are disfavored as, you know, famously and John Adams did, um, in Boston, you know, and still became, you know, president of the United States. >> So, that's a good historical perspective for us. But, let me move move on to your to your book and your proposals. You make some specific proposals, Andrew, to to make our democracy more resilient. And you focus on, as you said, the law relating to prohibition prohibitions against lying in the public arena. And you point out a number of examples where, as you said, where private individuals or businesses have been held to account. Could you talk a little bit about that? You give, two or three examples. >> Sure. Um, well, one from from my life is I was, um, one of the prosecutors in the, um, Enron case. And, um, the crimes that Ken Lay, just to take him as an example, was charged with and convicted of, uh, and both criminally and civilly, was lying to the public intentionally about the state of Enron. Um, and so, that is lying to shareholders to make them believe that everything was rosy when we had to prove, and did prove, that he knew that in fact, um, it was quite precarious. Um, and so, he was held both criminally liable and there was also a civil suit under the securities laws. Another example, not from my, um, life, but is Rudy Giuliani in a in civil context, um there's defamation law and he was sued by Ruby Freeman and Shane Moss and was found liable to the tune of tens of millions of dollars for lying about them and what they um supposedly according to him did. There, of course, the plaintiffs have to meet a certain standard of proof. They have to show a certain um intentionality or actual malice or reckless disregard with respect to it. Um so there's legal requirements, but those are examples of criminal law and civil holding people to account. And there's there's many many instances. I mentioned my age if anyone has a prescription who is listening to this, there is truth in advertising that exists with respect to, you know, any medication you have. You can't just say it cures cancer when, you know, it's there it's bacitracin. It's to again pick one example. >> But we all we all learned in law school that lying to investors or lying under oath, lying to a judge or jury, lying to your customers, there there are well-established legal principles. But for some of us we're scratching our heads saying, a politician lying to their voters, isn't that what some of the cynics say they do every day? >> You know what I would say about that and I I addressed that issue of that that's what they do every day. Well, you know, if we don't do anything about it, then, you know, we only have ourselves to blame. This is, you know, fool me once, shame on you. Fool me twice, shame on me. Um and to be clear, I am not talking about making statements about opinions or policy positions. Those are not falsehoods at all. You may disagree with those, but that that is not in any way, shape, or form what I'm talking about. And it also I'm not talking about saying something that's a mistake. Um this is something that within the criminal law people know very well, which is that you have to be able to show that somebody knowingly and intentionally said something factual that was false. The The example that I chose to use in the book, although there's unfortunately and sadly in my view thousands of examples, but I used sort of the big lie that is still going on about material fraud in the 2020 election, um which we still hear and it still is a litmus test for people getting confirmed um in the Senate. Um and that to me is a good example of something that is a factual statement, not an opinion. Um and of course the government would have to show that it was knowing and intentional, but you know, I give examples of how, for instance, Jack Smith was going to be able to prove and and said that he had the proof to be able to prove that beyond a reasonable doubt. >> You You raise in the book this concept of marketplace of ideas, which we all attribute to the great jurist Oliver Wendell Holmes, and there is some suggestion in the law that a marketplace of ideas is the appropriate response and antidote to lying, but you uh raise the question of whether it really does work in this context. Can you elaborate? >> I have a lot to say about that. It's probably in many ways is the least original part of my book, so I just want to be fair to you people listening. Um it's this isn't entirely from me, but um the idea of um the marketplace of ideas and that being the solution um is one that is not applied when it comes to intentional falsehoods. So, we just talked about lying about Enron shares, lying about Ruby Freeman and Shemima, lying about on prescription labels. The solution that the law comes up with is not, "Oh, do it because it all comes out in the wash in the marketplace of ideas." Marketplace of ideas is is one that applies to opinion and it doesn't apply to false factual statements. Having said all of that, one of the things that I write about is how much in our media environment now with Balkanized media, even where marketplace ideas used to be applied, it is a challenging concept because we no longer in a position where we are necessarily confronted with those opposing views. People go into the internet and they see just their little media bubble that they you know want to see and algorithms only make that much worse. But I don't really have to take on that issue. It's a huge problem, but it is one that I think only furthers my point that that you really cannot rely on the marketplace of ideas nor is there a history of doing it in the context in which I'm saying that there should be this this there should be a way to hold politicians and candidates to account if they intentionally lie about false about factual material. >> I'm showing my age, but we need someone like Walter Cronkite to referee this in order to make it work and unfortunately they're not making any more of them. Maybe David Brinkley. Um So you talk in your book about three particular statutes that you think it would be very helpful for Congress to adopt that would make this environment a lot better going forward and and deal with situations like people claiming that elections were stolen when there is no evidence of that at all. Can you can you walk us through your suggestions? >> I think probably the easiest way to think about it is to put them into two buckets. Um one bucket is um is what we've been talking about, which is um criminalizing. Um that is that if you say something that is intentionally false, you can make it a crime. Um and I give examples in other countries um because I looked overseas to see how have other so-called first world countries dealt with this problem and even England, you know, which we we we think of as as very much coming from we come from their tradition in so many ways um has um sanctions, Brazil has sanctions, France has sanctions, Germany has sanctions. Um the second bucket is not criminalizing, it is that you cannot hold office and it is that you you forfeit the ability to hold office. An example of that from England is they have a law that if you intentionally lie in a particularly material way about your political opponent in a campaign, you cannot hold office. And the the last time that was applied in England, the person who actually won that election was disqualified because in essence he had falsely, the court found, claimed that his opponent was a terrorist. Um and so there are examples from other countries that I'm not saying we should take hook, line, and sinker, but you know, this is one where in America we're so reticent about looking overseas for other examples, I um I quote Ruth Bader Ginsburg who was a huge proponent of not doing that, of trying to look overseas to see what can we learn? Not that you take something whole hog and say, oh, it's this this will definitely work in our situation, but it can help you in understanding what might be a solution and also what might not be, what might not work. >> From Brazil you took the example of someone who willfully makes a false statement about election results or process would be disqualified for running for office for a period of years and apparently that's been in place in Brazil for some years and seems to have worked. I don't know if there've been any litigation in Brazil on that law yet or not. >> There has been quite famously Mr. Bolsonaro who has and he has a remarkable similarity that I go through with Donald Trump. In fact, this past summer when I was writing that chapter and was sort of astonished at how many similarities there both personally and politically. But the biggest difference being that they're different legal systems and as I was writing it Donald Trump was busy criticizing the judges in Brazil for holding President Bolsonaro to account for two things. One for lying to the public about the election saying that there was material fraud that in the election when it was found that he knew that was false. Sounds familiar. But they he they actually had a trial and the result was he was barred from running for a set term of years. He also was criminally prosecuted for engaging in an insurrection, a violent insurrection and again the difference is that his case actually went to trial and there was a finding against him. So, he was held to account in two separate ways. And I talk about the law there, what we might use in the United States as an example, again, if we get out of the situation we're in now. >> Andrew, the the concept of of keeping a someone who lies from holding office creates some interesting issues. We have this unfortunate situation in our political world money and political action committees. And these are groups who operate independent of the candidate and the candidate's campaign, but they are fully capable of lying and influencing. It doesn't take a lot of imagination to see these political action committees claiming that the 2020 election was stolen. How do we address that? How does your proposal address that problem? >> That's a great question. So, um first, if you could show that the lies that were being told were at the impetus of the candidate, then it's just like any any criminal case where if you use an agent knowingly to do something, you are you can be held responsible both civilly and criminally. But let's assume you couldn't do that. You could have a law to help deter exactly what you're talking about that just says it is a crime to lie in a material way to the public. In other words, you you don't have to make it lies about how you did in school or crowd size. You could make it something that's more restrictive, but you could say, as we do with respect to when you testify before Congress, or you know, when I was a prosecutor and people met with me and FBI agents, we would always warn them as a standard practice that the law is, even though you're not under oath, if you say something intentionally false to an FBI agent or to a prosecutor, that is a federal crime. Um and so why not have that with respect to um a PAC that would intentionally lie to the public? >> Right. And that's how That's a as you know as a prosecutor, that that's a very difficult burden of proof for you to to to show or to bear because I'm sorry, I made a mistake. I I I That was my opinion, but I really wasn't stating it as fact. Someone else told me and I I'm just repeating what I was someone else said. Uh so it's those prosecutions are difficult from your perspective. >> They are and they should be. Um but I'm speaking now both as somebody who's been a prosecutor for 20 years and a defense lawyer for 10 years. Um if the consequences are going to be a criminal consequences, the standard um should be the highest in the law, which is proof beyond a reasonable doubt. And even if this the consequence is something like you are barred for running, um that has a huge effect on the electorate. And again, it should have a very high standard. Um and so I I think those are necessary to not have um somebody targeted improperly, obviously something that we in my view are witnessing right now. Um and the courts deal with that and the law deals with that in general by standards of proof. >> Can we come back to something you said earlier and I think it's an important to this discussion, this distinction between opinion and fact? And I think for some of us that isn't an easy or obvious distinction to make, but I understand it's very important to what you're proposing. >> Yeah, so you know, that's one where I don't think I need to reinvent the wheel. Um so for instance, that is a legitimate concern, but defamation law deals with that all the time. Um, where somebody in defamation law says, "Well, that's just an opinion. I wasn't stating as a fact that Andrew Weissmann did X, Y, and Z. I was giving an opinion." Um, and similarly, if um, if politics is supposed to be um, about sort of what are the policies that somebody has, um, and are there policy differences, or even, you know, the integrity of the person, like their character. All of that is something that would be completely a safe space. Um, there's nothing about this law. Um, and so, I guess I don't have a lot of sympathy for the idea that, "Oh, aren't you going to sweep in um, material false factual, uh, allegations?" Um, and so, you know, that I I would love to be in the situation where we were seeing a law in action and um, tinkering around the edges to make sure that we were not, um, not, um, deterring speech that has to do with opinions. >> how do you see getting from point A, where we are now, to point B, where this law passes, given a divided Congress and their seeming inability to agree on much of anything? >> um, I am not that naive to think that this would become the law federally anytime soon, which certainly with the current um, Congress. Also, you have to remember, the people who would be passing this are politicians, and so, it would take a real statesman to be saying that they want to do this. Now, we have seen that in the past. Um, we have seen statesmen. Um, what I would say to people who are thinking about this is that we do have 50 states and you would be surprised many many states currently have laws where if you for instance are convicted of felony you are disqualified and barred from holding office. New York has a law like that. So where I do see this as something that is much more likely to be done is at the state level. Shortly after my book came out Governor Newsom announced that he was signing into law a provision that if you lied in a way that would materially impact ballots that that would be a crime. So I think that in terms of how do you get from your point A to point B I would say right now look to the states. >> Unfortunately we've run out of time. We've got a lot more we'd like to talk about but the good news is you're going to be in Maine here in September and we're we're very much look very much looking forward to seeing you then. >> I am looking forward to it as well. >> [music] [music]