Monday, February 10, 2020

Is It Wrong to Accuse Someone of Violating a Law That Does Not Exist?

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I asked a friend the following hypothetical question:

Imagine the following. Person A is an official of our government charged with, among other things, the responsibility to abide by and enforce the law. In the course of normal politics, Person A accuses his/her enemy, Person B who is also an official of the goverment, of a crime.  Lets say that Person A accuses Person B of putting pesto sauce on his kale on Fridays. "Thats outrageous, its against the law!". But as far as anyone knows, the laws about kale make no mention of pesto sauce, nor has there been any case about pesto sauce and kale in all of recorded history, and it is reasonable to expect Person A to know this.  In other words (a) the issue is not at all subtle, and (b) Person A is responsible in some sense of that word in his official capacity, to understand, in broad strokes, the state of the law about kale and pesto sauce (and if he was confused, he could go ask somebody).  The question is, has Person A, in accusing Person B of violating the law, in fact violated the law himself?

And my friend the Harvard-trained entertainment attorney replied:

You are right that there is an idea that people in office are supposed to understand and respect the law, but mostly it’s just aspirational, not a legal standard to which they are held. It’s probably not a crime for a public official to make outrageous statements claiming violations of the law that he knows are not violations at all. If you and I (i.e someone not protected by making a statement relating to duties in a public office) did the same thing, it might be defamation because it is defamatory to wrongfully state that someone committed a crime, though maybe not because if he really did put pesto on his kale and the only falsehood in my statement is that in doing so he committed crime, it is possible that might not be considered defamation, because defamation usually goes to the truth of the underlying act not to its characterization as good/bad or legal/illegal. In making the statement in his official capacity and even in wrongfully prosecuting a case for violation of a law that he knows that he is making up, he is probably immune from prosecution under several different theories, but it could be grounds for removal from office.


To which I said:

We must thank our friends the Russians for their help in improving Democracy by stress testing it. It wont be possible to indulge this kind of behavior going forward now that we have endured Trump. Sadly, even lawyers, and particularly lawyers in positions of trust, must now be held to a higher standard. But that does not necessarily mean an orange onesie learning new skills, it may merely mean they are not permitted to be Attorney General or POTUS.






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