The Contagion of Government Lying

“Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” – Justice Louis Brandeis (1856-1941)

Last week, this column chronicled the startling admissions of lying by White House senior adviser Ben Rhodes. Rhodes readily acknowledged to The New York Times that he lied to the public and to members of Congress during the negotiations that produced the recent Iranian nuclear deal so as to temper the “irrational” fear that some senators and representatives had of the mullahs who run the government in Iran.

He was asked — not subpoenaed — to testify before the House Oversight and Government Reform Committee about his lying, and he refused to show up, claiming his lies were protected by executive privilege. Because he spoke publicly about this, he has no privilege, yet nothing further happened. The committee gave up the ghost.

The judge’s response in the case was curious. He ordered the DOJ lawyers to take ethics classes. I would have done differently. Lying to the court is so severe a violation of the ethical rules, so disruptive of the moral order, that its significance is diminished by the so-called cure of ethics classes.

I would have barred all lawyers who lied to me from ever appearing in my courtroom, and I would have removed them from the case. I would also have referred what I knew about them to ethics prosecutors in the states and federal districts where they are admitted.

Lawyers have an obligation of candor to the judges before whom they appear. That duty is no less serious when the lawyers work for the government than when they work for private clients.

Because the government prosecutes people who lie to it and its liars almost never can be prosecuted, government lying is grave. It is equivalent to government lawbreaking because when people to whom the government lies — judges or litigants or members of Congress or the public — rely on those lies, they often do so to their detriment. They lose a right or an opportunity that often cannot be recaptured.

I have often asked rhetorically whether the government works for us or we work for the government. The answer to this inquiry is obvious. It is only a fiction that the government works for us.

Yet fear of the consequences of government lying should terrify anyone who believes in the rule of law and fair play. Those consequences can be as contagious as government lawbreaking.

Reprinted with the author’s permission.

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