Contempt for Truth and the Law

During Trump’s first term as president, the Washington Post found that he lied or made misleading statements 30,573 times. The Post apparently is not keeping the same tally for his second term, but Trump’s contempt for the truth seems to have persisted. For example, he steadfastly maintains that the 2020 election was “stolen” from him, and that tariffs are paid by the country on whose goods they are imposed, not by the businesses and consumers that buy those goods after import. For a cogent and incisive analysis of just how big a lie that second one is, click here and set the timer at 2:28.

There are those—perhaps many—who think that all pols lie. But insofar as Trump is concerned, it doesn’t matter now. Our Supreme Court, in its infinite wisdom, has ruled that a president cannot be held criminally liable for “official” acts, presumably including the most bald and outrageous lies. And earlier legal analysis says much the same for civil suits. So there is, at the moment, no sanction whatsoever for a president lying in the course of arguably “official” duties: not civil, not criminal, not administrative, not even customary. Like emperors of old, our president can make things up as he goes along. The people can believe and knuckle under, or protest at their peril.

Even in John Roberts’ miserable understanding of democracy, there is some incentive for truthful talk and lawful behavior. No one else in our system enjoys the same near-absolute immunity for deliberate dissemination of falsehoods. In his celestial immunity from ordinary human morality, the president is alone.

That simple fact opens the door, perhaps, to the salvation of our Constitution and our Republic. However much a misguided Supreme Court might wish to make him so, the President is not actually omnipotent. He has the nuclear codes, but he cannot personally launch the missiles that might spell the end of our species. He’s not at the controls, and he doesn’t now how. Only the dedicated men and women in the nuclear silos or submarines can. He can’t even send a telegram or a secure message without the help of those who know how to work the machines. In a nation, an age and a government of unprecedented technical and organizational complexity, the president must act through others.

Does this simple, practical fact allow purveyors of human morality—truth and law—to put a foot in the door of the Oval office? I think maybe so. Here’s how.

Viewed broadly and fairly, the Trump presidency is the result of a long-developing popular rebellion against the rule of law and its inevitable complexity. Its origins long antedate Trump’s entry into politics. I dimly remember a Time magazine cover from the eighties, showing a statue of Lady Justice, with her characteristic blindfold, frowning deeply over the caption “Too Much Law?”

That cover reflected a general angst among the population about the prevalence of law and lawyers in every field of human endeavor. It also reflected a reality at that time: the vast majority of legislators, both state and federal, were lawyers, as were the vast majority of officers and higher-level administrators of state and federal agencies.

Most were graduates of a four-year college and a three-year law-school. Each thus had had at least seven years of higher education, culminating in three years of exclusive study of law. And each graduate typically specialized in a particular field of law—for example, civil, criminal or administrative—in the last one or two of those years. It took that much education to steep these civil leaders in the long history of law and the Enlightenment that underlies our democracy.

Besides all these years of training, lawyers in government have two other unique characteristics. First, they have a license to practice law in one or more states. Second, that license (and thus their right to practice their profession) depends on their continuing compliance with the rules and standards of their profession and of the courts before which they practice law. Notably among them are two fundamental norms: (1) respect for the truth; and (2) respect for and obeisance to the courts before which they practice.

Rules requiring truth in the courtroom are incumbent on every member of the bar. Most states’ rules reflect the substance of Rule 3.3 of the Rules of Professional Responsibility of the American Bar Association (“ABA Rules”), which are quoted in full in a footnote below. Their essence lies in ABA Rule 3.3(a), which reads in part: “A lawyer shall not knowingly . . . (a) (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer[.]” (emphasis added)

In other words, a lawyer may not lie or knowingly mislead a court, ever. Other rules, quoted below, expand on this notion, requiring a lawyer to correct even inadvertent misrepresentations of which he or she is aware.

Anyone who has attended a year of law school—let alone who has graduated and become a member of a state bar—knows and understands these obligations. They are the essence of the practice of law. Anyone so trained also understands that practicing law is not just a business run for profit: lawyers are by profession “officers of the court or courts” before which they practice, and responsible, along with the court itself, for maintaining respect and for and obeisance to the rule of law.

All lawyers, upon being sworn into a state or federal bar association, take an oath to respect, obey and maintain these professional rules. If they fail to do so, their licenses to practice law can be suspended or revoked. Or they can be reprimanded and/or sanctioned by tribunals of their state bar association(s). (Many lawyers are licensed in more than one state; during my practice years, I was licensed in three.)

The point here is simple but profound. The “morals of business” and “public relations”—including such touching rules as “let the buyer beware” and “say what sells”—just don’t apply to lawyers. The courts before which they practice impose a higher standard. And so, traditionally, have legislatures, administrative agencies and other organs of government whose workers have, throughout our history, been mostly licensed lawyers.

So when a lawyer representing the federal government tells a court that an illegally deported person like Kilmar Ábrego Armando García is on a plane that cannot be reached by radio and cannot turn back, he damn well better be right. There better be no way of communicating with the pilot, and no way of turning the plane back or diverting it to a third country, if only to fuel and return. Otherwise, that lawyer has violated Rule 3.3 and is liable for censure, sanction, suspension or disbarment, depending on how a bar tribunal views the severity of the untruths.

Another lame excuse for continuing to send García to the vile Salvadoran gulag CECOT was that the court’s order to return him was rendered by the judge orally, and not in writing. But there is no rule to that effect in any court that I know of. A judge’s order rendered in open court in proper session must be obeyed, especially by the lawyers in his/her court. Otherwise, the administration of justice would break down.

In any event, most courtroom sessions are transcribed in real time by a court reporter sitting in close proximity to the judge. So most likely the judge’s order to return García was being reduced to writing even even as it was delivered orally. It likely was, a few minutes or at most an hour later, part of the written record of the proceedings.

The point here is again absurdly simple. The “no written order was served” excuse sounds plausible to the average Joe or Mary who has never spent a day in law school and who has no lawyer relation to consult. To any lawyer it is absolute nonsense: the sort of lame excuse that one would expect a naughty six-year-old to make and quickly regret making.

No government—let alone one based on intricate laws derived from centuries of history, science and technology—can function if legal duties yield to lame excuses of the type made by naughty six-year olds. Unfortunately, our Supreme Court has rendered our Chief Executive mostly immune from the laws that apply to the rest of society.

But the President is only one man. He has no training in the law, and he has taken extraordinary steps to keep his college grades and test scores secret, undoubtedly for a reason. He has demonstrated little technological, organization and practical skill, except perhaps in distracting, deluding and deceiving.

As a practical matter, he therefore must act through others, many of whom are lawyers and are held to a higher standard of honesty, candor and duty. Isn’t is about time to start holding some of those lawyers to the standards of their profession, by the usual procedures, before our entire government degenerates to the morals of the bazaar?

Endnote: ABA Rule 3.3

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

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