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Tuesday, August 14, 2018


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.


DavidPalmeter said...

Moving back to the lighter side, I once advised a developing country in a dispute settlement proceeding in GATT, the predessor of the WTO. My client had been charged with imposing countervailing duties on imports that were subsidized, contrary to the GATT agreement. Indeed the exports were subsidized contrary to GATT requirements and, indeed, the procedures employed by my client were also contrary to them.

My suggestion that they just go back and do it over in the correct manner was rejected. So we went with the best arguments we could come up with. To the surprise of very few, we lost. A while later, I ran into one of the members of the panel that heard the case. He told me how the panel summarized our argument: (1) We didn't do it; (2) We won't do it again; (3) They deserved it anyway.

MS said...

Prof. Wolff,

Thank you for converting my comments into an honorary post on your blog. I did not expect this.

In a previous comment to a post on your blog, I observed that we frequently have to accept as true things that we cannot confirm by personal observation, e.g., a political candidate’s accomplishment claims. It is reported in today’s news that a GOP candidate in Florida falsely claimed that she had an undergraduate degree from Miami University in Ohio. Initially, the GOP came to her defense, asserting that rumors that she was misrepresenting her credentials were “fake news.” The candidate has now admitted that she lied about her degree, asserting that she did so “by mistake.” I would not be surprised if she was inspired to misrepresent her credentials by Trump’s example.

Of course, Trump did not invent dishonesty or greed, but he is popularizing it. I suspect that my assertion at the end of my comments that Trump’s behavior is having a toxic influence on young people was too conservative. I suspect that he is having a toxic influence on the ruminations of middle aged and retired people as well – people who question whether, in retrospect, they followed too honorable a path in their lives. How much better they would be living had they lied and cheated like our President. I must admit that, even I, in my weaker moments, have pondered how much better I would be living – eating in upper end restaurants every night, living in a more palatial home, vacationing in exotic locales – had I followed Trump’s example and gouged my clients with higher fees, won more cases by distorting the facts or law in my briefs, etc. In such moments of discreditable envy, I have to remind myself, “Virtue is its own reward. Virtue is its own reward.”

s. wallerstein said...


As you say, greed and dishonesty have been around for a long time, and I suspect that most people over age 16 have long realized that there are short cuts to "success". Look at any 19th century novel, Balzac for example, and it's all there.

Maybe I'm weird, but while I like to have enough money to pay the dentist (and that has not always been the case) and to buy what I want in the supermarket, I have no interest in eating in expensive restaurants or wearing expensive clothes. As long as my apartment has a working bathroom and kitchen, I couldn't care less whether it's palatial or not. That's not an ethical question in the least: it's more of an aesthetic question. Trump and the super rich seem ultra-vulgar to me, superficial: I have and never have had any interest in being around them. I prefer the company of thoughtful, creative and autonomous people, the kind who have other interests besides money.

I agree that Trump's vulgarity is contagious and surely, some people get infected by it, although I think that "money money money", the cash nexus, commodification, is the essence and the logical result of neoliberal capitalism. But it holds no interests for me. It's herd mentality.

Jim said...

Professor Wolff --

Getting back to the concept of taking an oath to be a witness in court, what follows is something that I have always found to be an interesting story. When Tocqueville was conducting research for "Democracy in America," he would sit in on a number of court cases in order to observe the proceedings. He was repeatedly struck by how many U.S. court judges would reject the testimony of anyone who was known to be an avowed atheist or anyone who refused to swear on the Bible. The reasoning was that an atheist could not be rendered trustworthy to present a valid testimony since he or she had no moral or ethical code to live by. But this should be of little surprise. After all, John Locke, in his "Letter on Toleration," argued that while we should tolerate practitioners of all religions, atheists should not be tolerated because, without a referential moral code, their word is untrustworthy. When dealing with real life situations, however, Tocqueville found this quite fascinating yet difficult to comprehend. Why would a judge reject the testimony from someone simply because he or she did not adhere to a religion? Therein lies a key insight about U.S. culture and society that we continue to live with to this day.

-- Jim

Matt said...

resent a valid testimony since he or she had no moral or ethical code to live by. But this should be of little surprise. After all, John Locke, in his "Letter on Toleration," argued that while we should tolerate practitioners of all religions, atheists should not be tolerated because, without a referential moral code, their word is untrustworthy. When dealing with real life situations, however, Tocqueville found this quite fascinating yet difficult to comprehend. Why would a judge reject the testimony from someone simply because he or she did not adhere to a religion?

I think it's not just that, for Locke (and many others at his time or influenced by him) atheists do "not adhere to a religion", but that they don't believe in eternal damnation that makes oaths ineffective. The point of an oath is, traditionally, you are asking to be damned if you say something untrue. But, if you don't believe in God, and so don't believe in eternal damnation, then how can the oath bind you? Of course, that seems quaint to many who do believe in God these days, too, but it seems that it was taken seriously by Locke and many people at his time. (John Dunn, the important interpreter of Locke's political thought, has argued that this idea is key to much of Locke's political thought, his moral philosophy and even to lots of his work on epistemology, though I'm not really competent to evaluate the last part of the argument.)