I wanted to fall in love with James Stewart’s Tangled Webs, (Penguin Press, New York: 2011). The subtitle alone persuaded me the author was on to something important: "How False Statements are Undermining America: From Martha Stewart to Bernie Madoff." But my love was not to be. I read my way to the very last page, more out of a sense of professional obligation than due to any sense that I was about to discover something new and important.
I did not.
But I did learn more than I ever thought I wanted to know about the nuts and bolts of the Martha Stewart prosecution and the prosecution of Barry Bonds. I read the sections on Bernie Madoff, but I still do not understand the investigation of him. Yes, I get that his investment firm was merely a gigantic Ponzi scheme, but the covering scam he used to deceive regulators and investors remains impenetrable to me. I am not sure that is Stewart’s fault, but I suspect it is.
Stewart is, of course, right: The administration of justice depends on truth-telling. If we lie with impunity, then the center will not hold. Got it. In an ideal and transparent world, discovery of facts would be what the law school professors used to call "a mere matter of proof."
Stewart has a lopsided view of the world. He frets about the consequences of witnesses who lie to the government without ever stopping to consider what happens when government lies to the people. This gives the book a quaint, 1950s kind of feel: If we all just told the truth, why everything would be all right.
Reality is, and, frankly, always has been, a lot more nuanced.
The government has perverted the grand jury process. A device once intended to protect people from an over-reaching government is now a secret tool the government uses to launch lengthy and intrusive searches. The cloak of grand jury secrecy is used to justify a one-sided game of hide and go seek. A federal agent might knock on your door to ask questions. He won’t tell you what others have said about you. He will tell you he cannot relay such information. But he will question you if you permit him to do so. And he will take notes. If those notes don’t match the account given by another witness, you just might face a federal prosecution for lying to a federal official. We let government define the truth while permitting it to deceive.
Can someone tell me why it is a crime to lie to the government, but mere business as usual for the government to withhold the truth? The current rhetoric is that the government needs investigative tools to protect us against crime. There was a time in which we viewed ourselves more in need of protection from government. All we like sheep have gone astray. We don’t even know how many crimes are defined in the penal codes of the state and federal governments. We’re broke, and yet we imprison more folks per capita and for longer periods than any other nation on Earth. There’s something wrong here, all right.
The fact that a few privileged plutocrats lied to the government and got caught is not what is undermining America. Stewart spend no time arguing this proposition. What is undermining the nation is the loss of a common set of interests and a common conception of right, the very things that Cicero long ago taught define a commonwealth. There is a crisis of legitimacy in the nation that runs far deeper than a few isolated prosecutions.
I recently watched an interview with San Francisco’s Tony Serra on the topic of snitching, or becoming an informant for the government. Serra argues that it is wrong to snitch: it undermines a person’s sense of honor, and it undermines the adversarial process, thus turning us all into potential agents of the state when the price offered for what we have to say is right. The government can buy witnesses with liberty, Serra argues. A defendant who offers something to a witness gets charged with witness tampering. This asymmetry is fatal to liberty.
So, too, with lying. We get the government we deserve. If we permit government to lie with impunity that cheapens the value of truth. Is it any wonder that a people distrustful of its government will lie to government agents?
Clients who lie to government agents face the risk of jail time. They face that risk even if they tell the truth, so long as the government chooses to credit the contradictory tales told by another as truth. The fact of the matter is that determining what is truth is rarely simply a "mere matter of proof." Sometimes the truth is a matter of what one chooses to see. Giving the government a set of two-way mirrors in its search for truth blinds the very people and makes engaging the government risky business for us all.
Go ahead and read Stewart’s book. It won’t hurt you. It is a painstaking recreation of several high-profile cases. The book can be read with profit by any criminal defense lawyer handling white-collar criminal cases. But don’t read the book to see what is undermining America. Stewart hasn’t a clue. He apparently believes that if we all just rolled over and gave the government what it wanted all would be well in this the best of all possible worlds.