In response to my light-hearted little post about a borrowed jug, MS made a series of three enormously knowledgeable and interesting comments. Rather than let them languish in the comments section, where only the most devoted readers will find them, I decided to combine them into a "guest post" so that everyone will read what he/she had to say.
Here they are:
As your son will tell you, pleading in the alternative is a
standard methodology that is taught in first year Civil Procedure. It can be
very infuriating. In the example provided by Dean, the pleading is not as
absurd as it may appear. Whether a contract has been formed, and what its terms
are, can be a complex fact issue when there is no written document to
memorialize what was agreed on, if anything. So the defendant is disputing
whether, as a matter of law, an oral contract was formed by the words the
parties exchanged; if the court determines that a contract was formed, then, he
claims, the plaintiff, not the defendant, breached it.
What Giuliani is doing he may think is like pleading in the alternative, but it
is not as sophisticated.
Regarding the nature of oaths, I need to expand a bit on my
comment in the previous blog entry relating to alternative pleading. The
example of alternative pleading regarding the contract is easily defended for
the reasons I gave – whether a contract has been formed can be a complex
combined factual/legal issue, particularly in the absence of a written
document. However, the example of the borrowed jar is quite different. Whether
a jar existed, whether it was borrowed; whether it was broken, etc., are not
complex legal issues. They are solely factual allegations that are either true
or false. What the imaginary pleader in the case of the jar is doing is relying
on the burden of proof – it is the plaintiff, the person suing for the alleged
broken jar, who, by law, has the burden of proving every factual element of
his/her case. So, rather than admitting that there was a borrowed jar and that
it was broken, the defendant is denying each of the elements and telling the
plaintiff to prove them. Pleading in the alternative with respect to such
factual allegations, however, is not without its risks. Under the federal court
rules, a party that continues to deny factual allegations in the face of strong
evidence that the factual allegations are accurate (e.g., a document signed by
the defendant indicating s/he borrowed the jar) can be sanctioned by the court
with an assortment of penalties, e.g., reimbursing the plaintiff’s attorney for
the legal expenses required to prove the allegation true.
What does this have to do with what Giuliani and Trump are doing? Most of
Giuliani’s double-talk relates more to factual issues, like whether the jar was
borrowed, rather than combined factual/legal issues, like whether a contract
was formed. Moreover, Giuliani is not (as of yet) representing Trump in a legal
proceeding, ala’ Clinton’s deposition in the Paula Jones lawsuit. Remember when
President Clinton was castigated for answering a question during that
deposition by saying, “It depends on what the meaning of the word “is” is.”?
His answer, although criticized as being “legalistic,” was a perfectly good
answer to a very badly worded question by Jones’ attorney. The attorney, using
the present tense, asked Clinton a question about whether he was having sexual
relations with Monica Lewinsky. Clinton focused on the use of the present tense
and gave a perfectly acceptable answer in a legal proceeding. From this
perspective, contrary to the shouts for his impeachment, he did not commit
perjury. Clinton was a defendant in a civil lawsuit; he had every right to be
particular in his answers and to expect that the plaintiff’s attorney ask
questions in a professionally worded manner.
What President Clinton did in the course of a deposition, however, was not an
acceptable answer outside the context of a legal deposition. When addressing
the American people at a news conference, for example, when acting as the
President of the United States, he had an obligation not to give cunning,
legalistic answers to questions. Although in that context he had not taken an
oath prior to testifying, he had, as Trump has, taken an oath of office
specified in Aritcle II, Sec. 1 of the Constitution to, “faithfully execute the
Office of the President of the United States, and ... to the best of [his]
Ability, preserve, protect and defend the Constitution of the United States.”
Article II, Sec. 3 of the Constitution provides that the President “shall take
Care that the Laws be faithfully executed.... .” I submit that when Giuliani,
on Trump’s behalf, gives blatantly contradictory answers to factual questions –
none of which relate to issues of national security – as if he is pleading in
the alternative in a legal proceeding, Trump, via Giuliani, is violating that
oath.
I agree that Giuliani will not be sanctioned by any court
for his conduct. But that is primarily because his representation of Trump is
not part of any legal proceeding. But the point I was attempting to make in my
earlier comment, perhaps a bit obscurely, is that precisely because it is not
related to a legal proceeding, his conduct on behalf of a mendacious President
is much worse. In a legal proceeding, Giuliani’s tactical maneuvering, his
“pleading in the alternative,” would, up to a point, constitute legitimate
advocacy on behalf of his client. But outside the context of a legal
proceeding, we have a right to expect a degree of candor, a degree of
consistency, in our President that, in a legal proceeding, might be regarded as
poor gamesmanship. The President should not need to recite an oath to tell the
truth, with his hand on a bible, to be expected to tell the truth at a press
conference. Yes, it is true, that most politicians and most presidents, bend
the truth. But, as President Obama noted in his recent speech in South Africa,
it used to be when a politician was caught in a lie, s/he at least would affect
embarrassment. Trump, aided and abetted by Giuliani, doubles down on the lies.
He lies more than any other President has done; and then he contradicts the
lies, and lies about the lies. For all of Nixon’s faults, and there were many,
when he declared, “The American people have the right to expect that their
President is not a crook. Well, I am not a crook.” he at least recognized that
there was a standard of decent behavior that the President owed the country,
even though he failed to live up to that standard.
By his outlandish advocacy on behalf of Trump, Giuliani is doing serious harm
to the office of the President that will have a lasting, deleterious effect on
this country. Trump’s critics express legitimate concerns about the
repercussions his policies will have on international relationships and voice
concern that he may do something rash militarily in order to prove his manhood.
But even if, hopefully, none of these worse case scenarios come to pass, the
harm that Trump’s behavior is causing to the psyche of this country will last
well after he is long gone. He is teaching the young people in this country
that the way to be successful in life is to lie, cheat and bully your opponent.
Giuliani’s contradictions in defense of Trump is legitimizing that behavior.
