[This article appeared in the Journal of Social, Political and Economic Studies, Spring 1999, pp. 93-118.]
The Rule of Law and Democracy:
Ideals, Realities and "the Human Chokepoint"
Dwight D. Murphey
Wichita State University
It would seem unavoidable that ideals, such as of the Rule of Law and of broad democratic participation, are in actual life always threatened by human factors that lead away from them. During the 1990s, however, two prominent cases in the United States - the criminal and civil trials of O. J. Simpson, and the impeachment of President William Jefferson Clinton - point to what now appears to be a conscious use of human weaknesses to fly in the face of the ideals. This reflects an apparent awareness that in every human procedure there are decisional "chokepoints" where sophistries of all kinds can deflect the outcome from what it would be if normal rational processes were followed. While this impacts on law, the "chokepoint" phenomenon is equally a problem for democracy itself, since its decisional processes are also predicated, ideally, on accurate and adequate information.
Key Words: Rule of Law, democracy, human factors affecting Rule of Law, human factors affecting democracy, O. J. Simpson cases, Clinton impeachment, legal profession, legal ethics, sophistries and the law, Legal Realism.
Ideals are important to a society, not because they are always adhered to, which everyone knows they will not be, but because they guide behavior, public and private, and because they provide the basis for a general belief that the society is well-founded and worthy of allegiance. The latter of these has to do with the "legitimacy" of the social order and of its political and legal systems; i.e., with the society's overall acceptability to the people within it. Unless the institutions enjoy legitimacy, the society devolves into a chaos of individual struggles as people pay attention only to their own interests because they have no faith that principles are adhered to in common. Moreover, people feel little or no basis for loyalty to the society when it comes under attack. When times are good, a loss of near-universal consensus may lead only to pervasive cynicism. American society is for the most part in this condition today. When times are bad, or when strident voices make contending claims to social or ideological allegiance, peoples' unwillingness any longer to find grounds upon which to defend the existing society puts its very existence in jeopardy. The United States experienced this collapse of internal cements in the late-1960s during the years of the New Left when the revolutionary rhetoric was strident but, perhaps more importantly, the response to it was morally and intellectually disarmed.
It isn't misplaced, then, for the supporters of democratic participation, the Rule of Law, or any other ideals that people consider important to look periodically at the health of the system they endorse. Are the ideals being at least reasonably approximated in life? Or have they been undermined so severely that they are perceived more as hypocrisies than as guiding principles? Beyond that, the ideals may even be in the process of becoming forgotten altogether.
Such a concern is not to be confused with the "social criticism" in public discourse and "legal relativism" in jurisprudence that in the nineteenth and twentieth centuries have pressed an attack against the mainstream bourgeois society and the ideals that actuate it. In the ideological context of western civilization since the early nineteenth century, the Left, while believing deeply in its own verities, has used relativisms of all sorts as a way to undermine confidence in the verities of the main culture, telling people "your way isn't Truth as you believe it to be; it is only one of many alternatives." Social, cultural, legal and other relativisms have also reflected the empirical orientation of modern thought, and would have played a major role even in the absence of ideological positioning. When in this essay I urge a realistic comprehension of the human factors that vitiate ideals, I am no doubt identifying with the second of these factors, the empirical frame of mind; but I would have us understand the problems inherent in law and political processes so we can better strengthen them - a very different thing from ideological attack. Vigilance about the health of ideals may be hard to distinguish from destructive attack, but is essential to their vital realization.
As we proceed, there will be a logical sequence leading to my main point:
. First, to recall the ideals that underlie "democracy" and the "Rule of Law";
. Then to see what qualifications are necessarily placed on those ideals by a need to serve other values that are also thought to be important, so that even at its best an ideal is rarely undiluted; and
. Finally, to notice the extent to which "human factors" quite naturally work, even in the normal course of things, to subvert the ideals.
With these as a backdrop, I will refer to two of the more infamous cases from the 1990s to illustrate the point to which I am leading:
That the undermining of the ideals has become worsened by what seems to be a growing awareness among opinion molders and lawyers, at least in the United States, that in all human processes there are "chokepoints" that call for human decisions and that these decisions can be deflected from what normal rational processes would lead them to be by playing upon a more-or-less pervasive inability of people to think.
If sophistries, obfuscations, false dichotomies, mischaracterizations, and biases are brought to bear upon these chokepoints, the procedures of rational deliberation - such as in politics and the courts - are turned from serviceable ideals into putty. Bias, partisanship, sycophancy and sophistry take the place of reason.
Since the uses of sophistry have been known for thousands of years, it would be foolish to think of them as something new. What now seems noteworthy is the extent to which sophistries have come to make up the common coinage of the body politic and of the law in an advanced society like the United States. Ideals long held as basic to the social order run counter to opportunistic manipulations of human weakness, and are subverted by them. These manipulations seem to have reached a crescendo. My observations will be drawn from the O. J. Simpson criminal and civil trials, and the impeachment of President William Jefferson Clinton. This article will point to the sophistries that have recently been manifested, doing so not as commentary on the two cases for their own sakes, but as part of the larger observation about the existence of "chokepoints."
The Ideal of Truth in both Democratic Participation and the Rule of Law
We will see how much the ideal of truth is deviated from, but nothing seems clearer than that "truth" is fundamental to both of the values we are discussing: democratic participation and the Rule of Law. It is possible for a society to subordinate truth-seeking to other values, seeing greater good in, for example, religious orthodoxy or tribalistic loyalty. The ideals of democratic participation and the Rule of Law reject those preferences, and are based instead on the society's placing fundamental value on human personality and individuality.
By truth I mean an accurate and adequate knowledge of the facts that are relevant to any given decision, with the facts being understood in due proportion. People in their role as citizens will hopefully make "informed decisions" about candidates and issues. This requires that they have extensive information. The information must be complete in all materials, with nothing important blacked out; and the public will need to assign significance to particular information with a reasoned sense of proportion about its relationship to other information. It is hard to imagine meaningful "democratic participation" without these conditions being at least approximated.
The same holds true for the trial of cases in courts of law. If the reality underlying a dispute cannot be revealed by the evidence, with the various parts viewed in due proportion to each other, the outcome of a trial will differ widely from what "justice" would demand if the true facts were known. The court may make a ruling, and that will usually have the socially beneficial effect at least of putting the dispute to rest between the immediate parties, but the ideal of connecting "justice based on reality as reconstructed" to "justice based on reality as it actually happened" will not be served. The action of the court will be arbitrary, rooted not in fact but in the imperfections of trying to reconstruct the facts. The court system has legitimacy - i.e., nearly universal acceptance - so long as people have reason to believe that in general judicial processes are rooted in a perception of reality as it actually happened. If it comes to be suspected that they are not, one of the cements of the social order disappears.
There are ambiguities in the ideas of "accurate," "adequate" and "due proportion" in the definition just given. The problem of due proportion will be discussed, though not exhaustively, as we proceed.
Other Values, Leading to Competing Ideals
Even in the discussion of ideals as such, the matter becomes clouded when we realize that truth-seeking, as one highly important value, comes to be mixed with other values, manifested in separate ideals, that the society believes must also be served. Harvard professor Alan Dershowitz has pointed out about criminal trials that "truth, although one important goal..., is not its only goal...." He gives the example that "the requirement is that guilt must be proved 'beyond a reasonable doubt.' But that is inconsistent with the quest for objective truth, because it explicitly prefers one kind of truth to another. The preferred truth is that the defendant did not do it, and we demand that jurors err on the side of that truth" [his emphasis]. (1)
Likewise, he points out, the United States follows the exclusionary rule, barring the admission of illegally obtained evidence, because the courts want to deter governmental misconduct, preserve privacy, and assure freedom from unreasonable governmental intrusion. The lawyer-client privilege, which bars an attorney from testifying about confidences received from the client, is intended to enhance the right to an attorney, but this comes at the expense of truth-seeking, taken just by itself. Rape shield laws do the same thing, barring evidence about a complaining witness's own sexual history so that the witness is not "victimized a second time," even though the complaining witness's past sexual behavior may be both relevant and material to inferring whether the sex was forced or consensual, and to which version of the facts to believe. The Fifth Amendment "privilege against self-incrimination" invokes a similar trade-off. (2)
The conflict among such competing values means that the principles are subject to continuing adjustment, as the values themselves come to be considered more or less important. Many people think that the search for truth in criminal proceedings has been unduly compromised by emphasis on the other values just mentioned. This appears to be so, and different adjustments of the various "exclusionary rules," to allow the admission of more relevant evidence, would in my opinion be called for. But it is also clear that if there are no effective checks on governmental misconduct, the search for truth is itself perverted. An example is the Stalin purge trials where men like Bukharin confessed to elaborately contrived stories that are known to have been false. Another instance is found in the Israeli trial of John Demjanjuk on the charge, eventually demonstrated to be false after Soviet records became available, that he had been Ivan the Terrible at the Treblinka concentration camp. (3) History shows that truth-seeking can be diminished to insignificance when ideology and governmental interest take over.
The Human Factors that in Varying Degrees Always Threaten the Ideal of Truth-Seeking
The admonition is sometimes made to young lawyers, "never forget that law is a human process." This may be taken merely to mean that one shouldn't be overly bookish or introspective about law, but should realize that success with clients and in court will depend in significant part on satisfying the preferences of a world of extroverts. The ready willingness to have a beer with friends is as important as mastering the law itself; "getting the client" is as important as doing the work. Gregariousness is, after all, important to life.
It doesn't take a young lawyer long, however, to find that the "human factor" in law is this and much more, besides. To say that a process is "human" carries with it not just conviviality, but all the weaknesses and foibles of human beings, as well as their strengths. Here, in considerable detail but by no means exhaustively, are some of the "human factors" that law, as an organized system in society, contains within it, despite its ideals that seek a higher purity. As we review them, we will notice that much the same can be said about the effect of human weaknesses and even depravities on the political ideal of an "informed public":
1. That decisions made later by those who weren't directly involved in an event must be based on a "mediated" or "reconstructed" reality, and that this is greatly affected by the "lenses" through which people interpret facts.
Neither justice nor political decisions are meted out on the spot by direct observers to all the relevant events. A trial at law and the on-going formation of public opinion in a democracy are based on the next-best-thing, which is actually quite a poor substitute even though a necessary one: a reconstruction of the events through the eyes of witnesses and commentators. Herein lies much chance for error and for the intrusion of a multitude of factors. One of these is the fact that witnesses, commentators, judges, juries and voters look at things from their own varied perspectives, or "through their own lenses."
Dershowitz was on the defense team in the Simpson criminal case. He recognizes the "lens" concept when he says that "all people - white, black, Hispanic, Asian, Jewish, male, female, gay, heterosexual - view the world through the prism of their experiences...Each juror brings to the deliberations what researchers call interpretive bias." An example: "We had a sense, confirmed by our jury expert, that the prosecutor had seriously misread this jury by assuming that the women jurors would view its forensic and time line evidence through the prism of spousal abuse rather than through the more relevant lens of race and of distrust of the Los Angeles Police Department." (4)
Common observation shows how differences in perception run so deep that they are, perhaps, existential. When a dog owner takes his terrier out on a leash, he finds that the terrier, ensconced in its plane of existence, is fascinated by smells, rabbits and squirrels, while the owner pays attention to an airplane overhead or thinks about the article he's writing. The two living creatures are there together, but in "different worlds." A study of the differences between men and women from a "plane of existence" perspective would be fascinating. Imagine how much these differences in emphases and perception come to bear both in the trial of cases and in politics. In the Clinton impeachment, many people steeled themselves against the details and weren't prepared to credit anything negative because they saw the whole affair as simply "Clinton's enemies ganging up on him," whereas other people found that view of it incongruous because they were looking at the events and the evidence without such a filter.
In fact, it is this "lens" feature that highlights an essential ambiguity, as was previously indicated, in the ideal of truth itself. Facts - accurate and adequate - aren't enough; they must be seen in due proportion to other facts. But ideologies, religions, cultures and social philosophies differ profoundly in their understanding of the context in which facts are to be found. This impacts fundamentally on the concepts of relevance and materiality. Judges' views of what is normal about relevance and materiality stem from their immersement in a given society's consensus about how things relate to each other. Thus, "due proportion," "relevance," and "materiality" are to be understood relativistically. This doesn't mean, however, that any view of them, or any application, is equally good with any other, unless we are willing to posit that all cultures and all social philosophies are themselves equally valid and serviceable to values we hold dear.
2. That reality is often perceived through a series of snapshots rather than in its full flow and complexity.
Trials and political discourse both tend to rely on snatches of fact rather than fact as understood in its continuing flow. Those who saw the movie Kramer v. Kramer will remember that the character played by Dustin Hoffman was shown to be an attentive and caring father. When, however, a court hearing was held on custody of the son, an injury to the boy at a playground was taken totally out of that context, so that the father was made out to be just the opposite of what he was. We should notice that this wasn't because of any trick on the part of opposing counsel; it is inherent in testimony that focuses on specific incidents. The totality is easy to lose sight of, being less dramatic and much more difficult to grasp. In hearings on child custody, most domestic relations courts, with loaded dockets, couldn't possibly spend the time needed to listen to evidence about the entire context sufficiently to evaluate it. Often, nobody knows the total context but the two contending parties, and they see it very differently.
In public discourse, the media and the people themselves have their attention directed to similar snatches of fact: the sinking of the Maine, the Gulf of Tonkin incident, an atrocity committed by one side that receives media attention even though atrocities on the other side are ignored or successfully hidden. In Kosovo, the American public is currently given a caricature to believe: that the Serbs are the evil-doers who commit atrocities, while the Albanian independence movement stands on the side of an innocent civilian population. Almost no one in the United States knows (or seemingly cares to know) anything about the history of Kosovo: that it is sacred ground to the Serbs because that is where the Ottoman Turks defeated them in 1389, leading to almost five centuries of subjugation to the Turks; and that the ethnic Albanian claim arises out of nothing more commanding than a much higher birthrate in recent years. (5) Whether an understanding of these things would make any difference to American policy can't be known, but what is clear is that on this point, as on many others, the United States' "participatory democracy" operates on only the most fragmentary of information, and seems very little concerned about doing otherwise.
In the criminal trial of O. J. Simpson, attention became focused on whether detective Mark Fuhrman had used the "n-word" several years before. (6) It should be noticed that this was a very different thing from an inquiry into the totality of Fuhrman's record to see whether he really was biased racially or, more to the point, given to manufacturing evidence. The context and flow were obliterated by a snatch of fact. Although this isn't inevitable in the trial of a case, and Judge Ito could have prevented it in the Simpson trial, there is a strong proclivity from the very nature of trials, as dramatic reenactments, for specifics to prevent an understanding of the larger reality.
3. That the "adversary system of justice" and the ideals of the legal profession have much to be said for them, but, as often interpreted, build in some unpalatable realities.
Under the adversary system, each side in a dispute has its own champion, a lawyer who presents its side and is clearly identified with achieving the best he can for it. Neutrality and objectivity are left to others, assigned differing roles as judge or jury. The conventional wisdom is that "out of this clash will come the fullest airing of truth, since if one side leaves a stone unturned, the other will see benefit in revealing it." It is similar to John Stuart Mill's idealization of free speech in the second half of his essay On Liberty, in which truth is forever engaged in vanquishing error and is appreciated all the more because of the conflict.
In law, this role-playing aspect is often thought to carry beyond the courtroom to such things as the negotiation of contracts. A common perception of the "fiduciary duty" a lawyer owes a client is that the lawyer must strive for maximum advantage for the client, since the attorney is neither more nor less than a vigorous representative of the client's interests. Instead of drafting a lease that looks after the legitimate needs of all the parties and makes the transaction optimally workable, the lawyer will load it with "landlords' clauses" if he represents the owner and "tenants' clauses" if he represents the lessee.
The United States Supreme Court has in recent years opened the legal profession to advertising and price competition. This points the practice of law much more toward a "money-getting trade" than toward a service profession in which a semi-aristocratic elite informs all of its actions on behalf of clients with detached principles of balance and public good. Sol Linowitz, a prominent attorney, writes that the shift that has occurred results in "a game where the lawyer for one side or another [wins] advantages for his client by cleverness." (7)
Linowitz favors the earlier ideal of the legal profession as "a cooperative activity...a helping profession," the purpose of which is "to obey, not evade, the law." The lawyer is an "officer of the court," and owes it deference. The attorney needs to make an independent professional judgment about his client's cause, providing wise counsel and not sharing the client's antagonisms. Even a mediocre settlement is better than litigation, since a balanced view shows that a lawsuit usually drains even the winner. The bar is a fellowship whose members enjoy a high level of liberal education and are concerned about their reputation. Linowitz quotes Alexis de Tocqueville's perception of the American bar of his day as an aristocracy. (8)
What Linowitz sees now, however, differs sharply from this ideal. He sees lawyers taking a "marketing" approach to their practice, so that the lawyer-client nexus shifts from "relationship to transaction," with the lawyer obedient to the expectations of the client. The lawyer's work has become "a collection of techniques a technician is paid to apply for the benefit of a client." He adds: "The mechanics have increasingly supplanted the humanists." (9) The same change has occurred in politics. A long time ago, while the ideal of "republican virtue" was ascendant, politicians liked to see themselves as pillars of character and principle. Their ideal was to serve constituents and varying interests, but through a filter of reasoned judgment and consistently with a high sense of honor. There are important residuals of this even today, but the tone of politics has on the whole come to bear the same relationship to principle as Monica Lewinsky's attitudes bear toward traditional sexual morality - which is to say, little at all.
4. That incompetence, a lack of common sense, emotions, personal peculiarities, mistakes, passions, prejudices, and other such factors are, to a greater or lesser degree, a part of any complex human endeavor, and certainly a part of both law and politics. To some extent, they will vitiate any organized legal and political system.
Vincent Bugliosi, the prosecutor of Charles Manson, discusses these less admirable human factors in his book Outrage: The Five Reasons Why O. J. Simpson Got Away With Murder: "From the tone of my remarks in this book, I'm sure it's very obvious to the reader by now how upset I am with incompetence and the lack of common sense in life...[T]hese characteristics are not benign. They are responsible for much, if not most, of the great problems, misery, and injustice in the world." (10)
It would be tedious to provide illustrations at length, since it is enough for each reader to consult his own experience. As just one instance, consider the low regard for truth that many people have. Self-regarding, they are wrapped up in their own worlds that they don't want disturbed.
Bugliosi tells how "lying is not only common in criminal as well as civil trials, it's routine and expected." He quotes New York lawyer Francis L. Wellman as saying: "Scarcely a trial is conducted in which perjury does not appear in more or less flagrant form." This has been underscored in the Clinton sex scandals: Monica Lewinsky admitted filing a false affidavit in the Paula Jones case denying sex with the President; and Juanita Broaddrick, who said she was raped by Clinton in 1978 while he was the Attorney General of Arkansas, had earlier filed an affidavit swearing no problem ever existed. Broaddrick recanted this when confronted by the Office of Independent Counsel, who gave her immunity. Her explanation for the affidavit as she gave it in a television interview: "I didn't want to get involved." From these instances, we see how little weight people - people who seem very much like the ordinary human beings around us - often give to the sanctity of an oath or to any general sense of civic duty. It would be a mistake to think people act this way only in special cases; instead, as Bugliosi and Wellman have generalized from years of experience, the desire of individuals to be self-regarding, and to lie if that is what serves their self-interest, is ubiquitous. The effects on a legal system's dispensation of justice and on public discourse within a democracy must be immense.
5. That even though the ideals of law are vastly at odds with the passionate wilfulness expressed by lynchings, the human factors at work in an organized legal system will always, to a lesser or greater degree, place the system somewhere between the Rule of Law ideal and the raw spontaneity of lynchings.
It's an oversimplification to think that law, as practiced, is one thing and lynching, as Americans remember it mainly from nineteenth century frontier communities in the West and the South, is something quite distinct. The adoption of legal forms simply cannot obliterate the impulses expressed in lynching: the desire for immediate justice; passion and outrage; an impatience with detached procedures and with technical features that substitute other considerations for a quick dispensation of justice in the given case; a willingness to judge summarily; and an assertion of will that defies accountability.
In daily life from a practical point of view, people see some of these impulses as laudable and even necessary. This is evident when audiences in theaters react enthusiastically when the movie's hero does something strikingly efficacious even though it would put him in jail in real life. And practical "corner-cutting" isn't limited to fiction; it easily becomes the customary way of acting for people who "know the real world" and move spontaneously to act effectively within it. In that context, ideals often seem to many people naive and even silly.
Interestingly, this is recognized by both sides in the Simpson case. Professor Dershowitz says police, district attorneys and judges, despite their ostensible commitment to "law," commonly "do what is necessary" [my wording] to accomplish what they see as justice in a larger sense (which is precisely what a frontier community does in a lynching). "Police know they can get away with certain kinds of common lies," he says, and refers to an "epidemic of police perjury." And judges, for their part, "speak the lie of pretending to believe witnesses who they must know are not telling the truth. What does it say about our system of justice that so many judges would pretend to believe policemen they know are lying, rather than follow the unpopular law excluding evidence obtained in violation of the Constitution?" Dershowitz quotes Scott Turow, who says: "The fact that the district attorney's office put these officers on the witness stand to tell this story and that the [judge] accepted it is scandalous. It is also routine...." (11)
Although Bugliosi sees the Simpson case in a diametrically opposite way, he says the same thing about his experience with law enforcement: while arguing that policemen rarely frame blacks, he observes that it does happen in drug cases, where "the framing officers justify it in their minds because they feel the person is guilty anyway." Bugliosi draws on his knowledge of the realities of police work when he says that "what is more common is police perjury to justify probable cause to conduct a search." He observes, in yet another connection, that "the black community knows that in these many cases of police brutality, the offending officer rarely, if ever, tells the truth; he lies, not just out of court, but on the witness stand." (12) If these abuses were reformed, legal processes would be brought closer to the ideal, but at a cost. To the extent there is an eternal war in society between the law-abiding mainstream and the criminal element, there is indeed a Zoroastrian struggle of good versus evil. In that struggle, efficacy is important. The "acting man" often thinks that greater punctilio makes the process ineffectual. This highlights the fact that "due process of law" is inherently better suited to a highly civilized society where crime is a rare phenomenon than it is for one in which a massive low-grade civil war is going on. If crime is rampant, the organized legal system feels great pressure to take on the characteristics of martial law.
Now, an Increasing Realization that Law Can Be "Nullified" Through Recourse to "Human Chokepoints"
What I have been describing is how the ideals of law are departed from in the normal course of a complex human process. Some of the departures can no doubt be reduced under favorable circumstances, so the extent of the departure isn't a given; but it is hard to imagine that an organized legal system will ever be completely free of them.
What we want to observe now, however, is something that is similar to these departures, but that takes them a crucial step further. It is something that has not been normal in American society, but that has recently become a salient feature of both law and politics. What I have in mind is the growing spirit of "shysterism," by which many lawyers have come to a potent realization: that the outcome of normal legal processes can be "nullified" by playing upon "human chokepoints." In every legal procedure, there are junctures at which the case turns on human judgment; and a lawyer-as-shyster comes to know that that decision-making can be manipulated by playing upon the intellectual and emotional weaknesses of the decision-makers. This same manipulation of many peoples' inability to think is apparent in the political arena, where sophistries are rapidly becoming the common coinage of public discourse.
It is here that the Simpson and Clinton cases are most illustrative. The acquittals in the Simpson criminal trial and in the President's impeachment came in the face of the great weight of the evidence: most especially, Simpson's blood alongside his victims' at the murder scene, and Clinton's semen on Monica Lewinsky's dress. In the first, obfuscations led to "jury nullification"; (13) in the second, they led to a similar manipulation of public opinion that then, by causing politicians to run for cover, deflected the outcome from what it would have been throughout most of American history.
Again, there are many specifics. Each of these constitutes what logicians would call a "material fallacy" by which attention is directed away from the evidence and reasoned argument:
1. An overwhelming flood of talk, placing an interpretive "spin" on the facts so that they are understood in a certain selective light.
Ours is an age of media, and "talking heads" beat every issue to death. Since television in particular believes that verbal combat is important to attract and hold audiences, widely varying views are presented and are argued over and over again. This means that the public is called upon to do something that many people find very difficult to do: to tell a good argument, passionately pleaded, from a bad one, also passionately pleaded.
Daniel Petrocelli, the attorney for the Goldman family in the civil case against Simpson, asks "Who were these pundits? Most seemed to be professional defense lawyers, but whoever they were, they pretty much shared one common characteristic: They knew very little about the case." Speaking of the Los Angeles Times' coverage, he said that "in an effort to balance the reporting of the day's events, they and most news outlets would create a distorted impression." (14)
Contentious repetition was heightened in the Clinton case during the year following the revelations about Monica Lewinsky by the fact that the President's defenders adopted a technique that had long-since become standard with Democrats in the House of Representatives: to settle on a common "line" at every juncture and have each voice reiterate it. When, for example, it came time to argue that "the public's tired of the case and wants the President free to 'go on with the peoples' business,'" the statement became a litany flowing from a thousand lips. Even though the method was transparent, it was effective. In logic, the act of making a point acceptable by constant repetition is called "argumentum ad nauseam." The fact that it has a Latin name attests to its having been around a long time.
The closest parallel we can think of historically is the "line" that the Communist Party had on all issues for many years; if Moscow changed the line, Communists everywhere conformed to it instantly. Prior to the Hitler-Stalin Pact, all Communists preached the "Popular Front" against Germany, but this changed overnight in August 1939 when Nazi Germany and the U.S.S.R. became allies. It switched back as soon as Hitler invaded Russia on June 22, 1941.
2. Altering the comprehension of events by mischaracterizing and minimizing them.
If a fact or event is called something a little different from what it is, and people hear that description often enough, most people won't realize that their perception of it has been subtly changed. Mischaracterizations distort perception, minimize or exaggerate reality as the case may be, and induce a loss of proportion.
The Simpson defense consisted of mischaracterizing the events as a police conspiracy to manufacture evidence, but in the main this was done not by verbal mischaracterizations but by ad hominem attacks, the introduction of irrelevancies, sowing confusion with the jury about the scientific evidence, and sliding over what was irrefutable. So it is to the Clinton case that we primarily look for examples of verbal mischaraterization. The following merely give some idea of the flood of such descriptions voiced during 1998 and early 1999:
With regard to the sexual behavior itself, it was common to speak in such terms as Clinton's "past mistakes," (15) "personal life," (16) "colorful life," (17) "sordid but trivial sexual liaison," (18) "tempted by the forbidden fruit," (19) "men in their weakness," (20) "I made a mistake," (21) "inappropriate relationship," (22) and "a private matter." (23) Compare these descriptions with the facts, which are universally accepted as established in light of the President's counsels' never having undertaken to rebut Monica Lewinsky's testimony. I recite them not out of a desire to include them here, but to highlight the stark contrast between them and the mischaracterizations: repeated acts of fellatio in and about the Oval Office, one of the more revered places in the United States; the President's masturbation in front of a 22-year-old woman; his masturbating her with a cigar; his ejaculating onto her dress; a number of late-night phone calls to her for "phone sex"; and testimony by Monica Lewinsky (referred to in the footnotes to the Starr Report but censored from the published testimony) of oral-anal sex. (24) The mischaracterizations so minimized the reality of the events themselves that, seen objectively, they amounted to flagrant distortions.
With regard to Kathleen Willey's account that the President put her hand on his penis, Gloria Steinem, founder of Ms magazine and a major personality within the feminist movement, said that "at most Mr. Clinton might be guilty of a 'clumsy sexual pass'." (25)
In the Paula Jones suit, the allegation was that the President, after having Jones brought to his hotel room by a State Patrolman, dropped his pants, revealed his erect penis, and asked Jones to perform fellatio on him. When Judge Susan Weber Wright ruled on the motion to dismiss, she was for that purpose required by procedural rules to assume the truth of all of the plaintiff's allegations. Just the same, Judge Wright held that the behavior was just "boorish and offensive" and did not rise to the level of "outrage" required under Arkansas law.
The same minimizing was applied to the President's lying. One commentator spoke of his "dissembling." (26) Call-in comments to the Wichita Eagle said "he got caught in a little white lie" and that "he made a mistake and lied. We all lie at one time or another." (27) These are odd descriptions to refer to intentional misstatements of fact over a period of more than a year before a federal court in the Paula Jones case, to the American people in nationally televised messages, to the cabinet officers, and to the federal Grand Jury convened by the Office of Independent Counsel. Even as this is written, the President still has not told the truth about his conduct.
3. Colored descriptions. In his delightful 1985 monograph The Book of the Fallacy: A Training Manual for Intellectual Subversives, Madsen Pirie, an Englishman, includes a section on "loaded words," by which he means "the deliberate use of prejudiced terms." "When the words used are calculated to conjure up an attitude more favourable or more hostile than the unadorned facts would elicit, the fallacy used is that of loaded words." An example: that the military leaders of a country may be variously called "defense chiefs" or "war lords." (28) Thus, during the Clinton saga, Independent Counsel Kenneth Starr's legal staff was spoken of as "attack dogs," (29) and columnist Carl Rowan said "the [Starr] Report oozes...." (30)
4. The fallacy of assuming that if something is one thing, that precludes its being something worse.
The fallacy that was perhaps most commonly voiced during the long Clinton episode was that if behavior or a statement can be said to be one thing, that automatically precludes it from being something else. It became a mantra to say, as even House Judiciary Chairman Henry Hyde did, that the case "has not anything to do with sex; it has a lot to do with suborning perjury, tampering with witnesses...." (31) (This was true about the specific impeachment charges brought by the House, which for political reasons deliberately omitted all reference to the sexual behavior as such; but it was a statement often voiced to characterize the entire episode.) There is, of course, no reason why the scandal did not involve both. The presence of the one thing does not preclude the other.
This error came in all sorts of guises. A letter-to-the-editor said "it was just a lie to save a woman's honor," (32) as though such a motive barred the many other aspects. A call-in comment said about Lewinsky that "she did nothing but live her life the way she wanted it." (33) Jill Docking, in 1996 a Democratic candidate for the United States Senate from Kansas, issued a statement arguing that "I think people will understand that it is Bill Clinton's personal problem, not that of other Democrats." (34) A columnist argued that "pragmatism, not depravity, impels [Americans] to cling to their bad-boy president." (35) [My italics.] In all these instances, the statement of one thing is made the pretext for denying something else even though that other thing should be examined on its own merits. It also amounts to an effort to oversimplify, isolating one factor and dismissing the rest.
5. Other "material fallacies."
In Pirie's book about fallacies, which I consulted for a more specific detailing of sophistry's techniques, he enumerates a great many errors in reasoning. Many of these were apparent in the public debate over Clinton, and some in the Simpson case.
Pirie tells of "amphiboly," defined as the fallacy of ambiguous construction, whereby a statement is allowed to be understood in more than one way. Although Pirie says this usually results from "careless grammar," it also arises from a less-than-honest lawyer's use of hairsplitting to avoid the commonly accepted meaning of words. President Clinton's own testimony, in which he said "it all depends on what 'is' is," and "I did not have sexual relations," will be unforgettable as the starkest reminder of how impossibly careful anyone must be when questioning a hostile witness or entering into a contract or a lease drawn by a lawyer intent upon deceiving. (36) Pirie associates several related fallacies closely with this. One is the fallacy of "definitional retreat," which he says "takes place when someone changes the meaning of words in order to deal with an objection raised against the original wording." Writing in 1985, which is worth noting so that it not be thought that he had a partisan view of the Clinton case in mind, he said that "if we are allowed to deal with objections to what we say by claiming that [words] mean something totally unusual, rational discourse breaks down altogether." He pointed out that "a useful device to provide covering fire for a definitional retreat is the presumption that everyone understood your second meaning all along, and only your opponent has been so finicky as to ignore it." Another fallacy, so closely related that it is hard to tell them apart, is "equivocation" - "using words ambiguously." It is also called "extensional pruning," which is when "we use words in their commonly accepted meaning, but retreat when challenged into a strictly literal definition." The conscious use of these things is called "hedging": "the advance preparation of a definitional retreat. The words and phrases are so carefully chosen that the option is retained to do a switch in definitions." (37)
The "argumentum ad hominem" is well known, and as with all these is ancient in its use. It involves attacking the proponent of a position rather than his argument. The Simpson defense centered on an attack on the police, the investigating detectives, the work of the coroner and of the Los Angeles Police Department's scientific laboratory. Such an assault on credibility is part of the adversary system of justice, where it is designed to play a vital role in truth-seeking by putting evidence to the test. But when it rises to the level of a devastating innuendo that is itself unsupported by an adequate evidentiary foundation, as it did in the Simpson case, it is transformed into fallacy. A jury is misled into being a "human chokepoint" rather than assisted. In the Clinton case, it was first Kenneth Starr and his staff, and then the Republican members of the House Judiciary Committee, including those who presented the case to the Senate as the House Managers, who were cast as "sex-obsessed" and "vindictive." This was to be expected, and is a part of the "heat in the kitchen" that is normal to politics. But with a significant portion of the American people, the case came to be understood exclusively in these terms: the reason for condoning everything Clinton did or said was that it was all being brought out unjustifiably for prudish, political or vindictive purposes. The ad hominem defense provided a complete cover.
Pirie points, also, to the "argumentum ad lapidem," which is the technique of ignoring the argument. During my years in the law, I have come to recognize this as one of the tell-tale traits of an effective trial lawyer or negotiator. When perfectly done, it requires a thorough-going insouciance by which a recognition of an unpalatable truth isn't revealed by even so much as a pause or a catch in the throat. This was the essence of the President's lawyers' presentation in the trial of Clinton before the Senate. Imagine being one of those attorneys and having to prepare that defense; to many of us, it would have seemed impossible. The key was to have the ability to go on for hours or even days without the slightest recognition of the specific facts or the gravity of the case. The attorneys who did this so well were greatly assisted, of course, by the knowledge that, even before anything had been said, they had enough votes to block conviction. It was simply a matter of going artfully through the charade. The same can be said of the Simpson criminal defense, once that particular jury was empaneled. "Nullification" through a "human chokepoint" was already in the script. More specifically, we see a good example of "argumentum ad lapidem" cited by Bugliosi: "Cochran [a Simpson defense attorney], having full knowledge that his own client had admitted to the police he had cut himself on his left middle finger on the night of the murders and was bleeding at his Rockingham estate, all before he left for Chicago, actually called a string of witnesses...who testified they never saw any cut on Simpson's hand." (38)
6. Lies per se.
In the year-long Clinton-Lewinsky episode, lies as such - spoken by the President, made the basis for affidavits and testimony, and repeated by his supporters - played a crucial role. Although some of them became the basis for Article I of the impeachment, and so can be said to have "gotten him into trouble," their overall effect was to gain time, which from a political standpoint proved invaluable to the use of public opinion as a chokepoint. They also helped prevent the Paula Jones case from coming to trial.
7. Use of a circle of partisans to repeat the lies.
Relative to the Simpson case, Goldman attorney Daniel Petrocelli says "there was a circle of people around [Simpson] who would lie to protect him." "We took the depositions of Allen Cowlings, Robert Kardashian, Jason Simpson, Cathy Randa, Skip Taft, and Arnelle Simpson. My own opinion was these people would say anything for their man." (39)
In the Clinton case, an army of surrogates went forth to misinform. Newsweek tells how Hillary Clinton "firmly denied the reports of her husband's extramarital affair on the 'Today' show and blamed a 'vast right-wing conspiracy.'" (40) George Stephanopoulous, formerly a senior advisor to President Clinton, wrote that at the early apex of the crisis Clinton "spoke publicly from the Roosevelt room. He assembled his cabinet and staff, and assured them that he was telling the truth. Then he sat back, silently, and watched his official spokespeople, employees of the U. S. government, mislead the country again and again and again." (41)
8. Manipulations of evidence.
Various approaches to evidence help obfuscate reality. These include such things as the blocking of important evidence; the prostitution of expert witness testimony; the denial of the cumulative effect of evidence; at the same time, the invalid stretching of inferences; the use of non sequiturs to draw conclusions that don't follow from the premises; and the making of any argument that's useful regardless of inconsistency or irrelevancy.
In the Simpson criminal trial, defense counsel succeeded in getting Judge Ito to bar the admission of most of the evidence of long-term marital conflict leading up to the murders. In the Clinton case, some of the most damning facts were censored from public view: the testimony of Juanita Broaddrick that she had been raped by Clinton and had falsified an affidavit for the Paula Jones case, just as Monica Lewinsky had, to avoid testifying; and the Lewinsky testimony about oral-anal sex.
Experts offer invaluable insights in many cases, but the testimony is often "for sale" in the context of the adversary system. This didn't come into the Clinton case, where the DNA evidence was uncontested and the President's lawyers offered no witnesses. In the Simpson case, Petrocelli tells how Dr. Michael Baden was paid more than $100,000 to present his expert opinion that the struggle at the murder scene lasted for from ten to fifteen minutes; "the sole purpose of this argument was to devise a murder scenario lasting long enough to disqualify Simpson as the perpetrator." (42)
One of sophistry's more effective techniques is to insist that each fact in a pattern be seen only by itself and not as part of the pattern. In my book on the history of liberal thought in the United States, (43) I considered it essential to observe that an alienated intellectual subculture had existed since the 1820s, hostilely critiquing the main society. The alienation was evident in the social criticism voiced by Thoreau and Emerson, the letters of Henry Adams after the Civil War, the Bellamy wing of Populism, the Greenwich Village radicalism preceding and during World War I, and continuing later manifestations. Nevertheless, a professor once argued with me that each of those things was something separate, so that no generalization could be made about them. This amounts, in effect, to a denial of the ability to infer and an unwillingness to consider evidence cumulatively. The jury in the Simpson criminal trial in effect denied the great weight of the evidence, much of it incontrovertible, simply refusing to draw an inference of guilt from it. In the Clinton impeachment trial, such a denial was inherent in the Senate's truncation of the House Managers' presentation - and in the inhibitions the House of Representatives itself had felt toward bringing all the charges it could. The cumulative pattern was hardly touched upon.
At the opposite end of the spectrum is the act of drawing inferences expansively, going far beyond what the evidence justifies. This is perhaps the central sophistry in Alan Dershowitz's book defending Simpson. He argues repeatedly that the casting of doubt upon some of the police evidence (such as the bloody glove that "didn't fit") justified the jury's discounting all evidence from police sources: "All the police evidence and testimony would now come before the jurors bearing a presumption, or at the very least a suspicion, that it had been corrupted." Dershowitz traces the argument: "The defense never argued that there was a widespread conspiracy...we raised questions about the actions of an even smaller number of bad cops - Vannatter and Fuhrman - who could easily have sprinkled Simpson's blood...That was the conspiracy...[And then the leap:] the jurors then...could reasonably distrust the rest of the evidence" [my emphasis]. (44) This is an enormous and invalid leap, inserted without Dershowitz's usual perceptive intelligence. To make the leap, the jurors had to believe that a much wider circle of police officers, including some who were at the scene of the crime well before Vannatter or Fuhrman, were in on the conspiracy to frame Simpson. This was both unspeakably improbable and totally unsupported by evidence.
In logic, the drawing of an inference that doesn't follow from the premises is called a non sequitur, and is one of the best-known fallacies. In an op-ed column for the New York Times News Service, Karen Hall noted one about the Clinton case when she pointed out that the conclusion that "there's no point in getting upset..., because everyone in Washington is corrupt" isn't the correct conclusion to draw from Clinton's misconduct. The more justifiable inference, she said, is that it is time for more, not less, concern about official malfeasance. (45)
Finally, we see a willingness to call upon any argument that's useful, regardless of its inconsistency or irrelevance. When this is done, the sophistry and shysterism are plain to see. Petrocelli observed about the Simpson defense: "Whenever evidence was not collected or analyzed immediately, the defense claimed it was part of the sinister plot to get Simpson. At the same time, whenever the work was performed promptly, it was part of the 'rush to judgment' against Simpson." (46) In the Senate trial of Clinton, the House Managers were for a long time left in a limbo about whether they would be permitted to call any witnesses at all. Then they were allowed to present just three witnesses through videotape. This truncation by the Senate, largely due to the intractability of its Democratic members, didn't prevent Sen. Byron Dorgan, D-N.D., from making this criticism on television: "We've sat for three days and haven't heard anything new." (47)
9. Unending effrontery; in-your-face disavowal of facts.
Petrocelli speaks of O. J. Simpson as "a deeply flawed liar, a man with no conscience." When confronted at his civil deposition with the notes one of his own experts had taken about what he told the expert, Simpson simply denied them. It was a trait that found its most grotesque reflection in Simpson's having trademarked his own name on a set of knives just one month after the murders. "O. J. Knives. The man had no shame." (48)
The same unabashed pressing-ahead was a sine qua non of Clinton's remaining in office, and has been a characteristic not just of Clinton himself, but also of his supporters, not a single one of whom resigned from office in protest over the disgrace. To appreciate this fully, just imagine what any person with even the slightest sense of shame would have done under like circumstances: when caught in the most prurient conduct by the revelations of a young woman and when that account was known to be supported by conclusive physical evidence, most people would have been so humiliated they would perhaps never wish to be seen in public again. This is just the opposite of Clinton's reaction.
What the two cases demonstrate is that American society is today producing some individuals, and elevating them to the highest levels, who are untouched by either religious or acculturated scruples. That marks a sea-change in American culture. It is arguably one of the root causes for the growing effectiveness of the "shyster's" use of "human chokepoints." The inbred defenses that the civilization once counted upon implicitly to protect it have, to some significant degree, been washed away.
10. A cultivated technique of evasion.
In both the Gennifer Flowers and Monica Lewinsky scandals, Clinton used a technique magnificent in its simplicity: to say "I won't say anything until I make my statement [on such-and-such a day]"; then to make an equivocal, very brief, and totally insufficient statement; and finally to say "I've made my statement; now it's time to move on." He succeeded with this totally in the Gennifer Flowers instance because of the collusion of the media, who never insisted on an adequate explanation or revisited the issue after his "statement." The counterpart to this in the Lewinsky scandal was his ultimate admission that "I did have an inappropriate relationship." His Grand Jury testimony, broadcast to the nation, consisted of reading a written statement with this very meager explanation, and then insisting that he would give no details beyond it. Again, forbearance by others saved him: Kenneth Starr didn't have him cited for contempt of court or force him to claim a recognized privilege, such as his right against self-incrimination under the Fifth Amendment; and the media never pressed him for what precisely he meant by "inappropriate relationship."
A cynical recognition that there are "chokepoints" in all human decision-making is leading in the United States to a heightened level of sophistry. The nullification of what would normally be done through democratic participation and the Rule of Law moves the society even further away from its ideals than would occur through the virtually inevitable existence of human passions and weaknesses. This distance from ideals is significant in a civilizational context, since ideals are essential social cements to justify loyalty to the social and political system. Nothing less than "legitimacy" is at issue.
1. Alan M. Dershowitz, Reasonable Doubts: The Criminal Justice System and the O. J. Simpson Case (New York: Touchstone Books, 1996), p. 37.
2. Ibid, pp. 37-44.
3. For a frightening account of governmental abuse in the Demjanjuk case, read Yoram Sheftel, Defending "Ivan the Terrible": The Conspiracy to Convict John Demjanjuk (Washington: Regnery Publishing, Inc., 1996). Sheftel was Demjanjuk's lead defense attorney in the later stages of the case.
4. Ibid, pp. 111, 112, 108.
5. See the background of the conflict in Kosovo in Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Touchstone Books, 1996), p. 260.
6. The reference to "the n-word" hardly needs explanation for Americans today, but future readers may not know what it means. It relates to the racially derogatory word "nigger" in speaking of blacks. It was once commonly used, but is now counted as among the grosser indecencies.
7. Sol M. Linowitz, with Martin Mayer, The Betrayed Profession: Lawyering at the End of the Twentieth Century (New York: Charles Scribner's Sons, 1994), p. 2.
8. Ibid, pp. 2-4, 9, 10, 14, 15, 50, 55, 134, 144, 153 and 207.
9. Ibid, pp. 34, 38, 10 and 67.
10. Vincent Bugliosi, Outrage: The Five Reasons Why O. J. Simpson Got Away With Murder (New York: W. W. Norton & Company, 1996), p. 323.
11. Dershowitz, Reasonable Doubts, pp. 50, 47, 48.
12. Bugliosi, Outrage, pp. 256, 255.
13. By "jury nullification" is meant a conscious decision on the part of jurors to decide a case contrary to the instructions they have received from the judge. Such independent action by juries is consistent with anarchy or revolution (which will have merit, or not, depending upon the historical situation), but not with an organized legal system, which seeks to regularize the Rule of Law. Judge Harold J. Rothwax has this in mind when he says that "when the government is democratic and not oppressive, nullification mocks the rule of law." He was for twenty-five years a judge on the New York State Supreme Court, and says that "increasingly, we see high-profile cases of obviously guilty defendants who are acquitted by juries (the police in the Rodney King trial), or convicted of much lesser offenses (Reginald Denny). We see juries unable to reach a verdict even with the most overwhelming evidence (the Menendez brothers). Or, as in the case of O. J. Simpson, we see juries that simply fail to deliberate." Harold J. Rothwax, Guilty: The Collapse of Criminal Justice (New York: Random House, 1996), pp. 219, 200.
14. Daniel Petrocelli, with Peter Knobler, Triumph of Justice: The Final Judgment on the Simpson Saga (New York: Crown Publishers, Inc., 1998), pp. 408-9.
15. Op-ed piece by Froma Harrop of the Providence Journal, appearing in the Wichita Eagle, October 11, 1998: "...past mistakes."
18. Op-ed column by Denney Clements, Wichita Eagle, December 18, 1998: "...sordid but trivial sexual liaison." "Dissembled."
19. Remarks by Jesse Jackson in Newsweek, August 31, 1998, p. 43.
21. Clinton statement as per New York Times News Service report, Wichita Eagle, September 3, 1998.
22. The President's own mischaracterization of the behavior, August 1998 in his speech to the nation and Grand Jury testimony.
23. Call-in comment, Wichita Eagle, September 15, 1998.
24. The oral-anal sex is referred to in Footnote 209 at page 234, Footnote 28 at page 415, and Footnote 35 at page 416 of the Starr Report to the House of Representatives, as published by Pocket Books, New York, 1998. Each of the footnotes refers to the testimony Monica Lewinsky gave to the Grand Jury on August 26, 1998.
25. Quoted in the Washington Star National Weekly Edition, April 5, 1998, p. 11.
26. Clements in Wichita Eagle, December 18, 1998.
27. Wichita Eagle, both on September 15, 1998.
28. Madsen Pirie, The Book of the Fallacy: A Training Manual for Intellectual Subversives (London: Routledge & Kegan Paul, 1985), pp. 110-111.
29. Clements column, Wichita Eagle, December 18, 1998.
30. Column by Carl Rowan, Wichita Eagle, September 16, 1998.
31. Hyde is quoted in a Wichita Eagle editorial, October 11, 1998.
32. Wichita Eagle, October 11, 1998.
33. Wichita Eagle, September 25, 1998.
34. Docking is quoted in the Wichita Eagle, September 12, 1998.
35. Clements column, Wichita Eagle, September 25, 1998.
36. That Clinton's deceptions were deliberate is attested to by his Grand Jury testimony: "I met with certain people, and [to] a few of them I said I didn't have sex with Monica Lewinsky, or I didn't have an affair with her or something like that. I had a very careful thing I said, and I tried not to say anything else...." (italics added). As quoted in the Wichita Eagle, September 12, 1998.
37. Pirie, Book of the Fallacy, pp. 9, 47, 50, 60, 74, 89.
38. Bugliosi, Outrage, p. 330.
39. Petrocelli, Triumph of Justice, pp. 105, 259.
40. Newsweek, August 31, 1998, p. 31.
41. Article, "The Betrayal," by George Stephanopolous, Newsweek, August 31, 1998, p. 44.
42. Petrocelli, Triumph of Justice, pp. 569, 570.
43. Dwight D. Murphey, Liberalism in Contemporary America (McLean, VA: Council for Social & Economic Studies, 1992).
44. Dershowitz, Reasonable Doubts, pp. 87, 137, 138.
45. Karen Hall's column appeared in the Wichita Eagle, September 11, 1998.
46. Petrocelli, Triumph of Justice, p. 415.
47. Sen. Dorgan is quoted in the Wichita Eagle, January 18, 1999.
48. Petrocelli, Triumph of Justice, pp. 541, 519, 631.