Lies Matter—The Punishment of Lying Politicians

IIntroduction: Deception, Democracy, Derogation

On January 28, 1998, in front of cameras of anxious journalists, the US President Bill Clinton made a statement that shocked the world. Commenting on the “rumor” of his sexual relationship with White House intern Monica Lewinsky, he asserted that he “did not have sexual relations with that woman, Miss Lewinsky.”¹ However, after being hard-pressed by increasingly indisputable evidence, Clinton finally admitted his “‘inappropriate’ conduct with Lewinsky” on August 17, 1998² and confessed that he “lied under oath at a civil deposition.”³ The scandal led to an impeachment for perjury, a federal crime for lying under oath;⁴ yet the impeachment failed, with Clinton promptly acquitted.⁵ The failure of the impeachment rekindled disputes over a controversial political question: should politicians be punished for lying? If so, where should the limit of private and therefore unpunishable lies of statesmen, as differentiated from their punishable lies made in the public sphere, be rightfully drawn? This essay argues that within the contemporary legal framework, politicians lying on public affairs should be punished.

Certain conceptual definitions must be clarified before discussion. This essay adopts a narrow definition of “lying,” distinguishing it from other camouflage techniques. Jurecic defines lying as “an act undertaken intentionally to obscure the truth and which therefore must be performed with a knowledge of the facts,” thereby distinguishing it from “bullshit,” an act “undertaken without any relationship to truth whatsoever.”⁶ We can achieve a more accurate definition by referencing Sandel’s distinction between a lie and a misleading statement, the latter being an “artful dodge” of partial truth instead of the former’s “bald-faced lie.”⁷ A distinction between public and private lies must also be drawn. Within the liberal school’s two prevalent methods of defining the private sphere—broadly defining it as issues “not governed by the public power of the state,” or narrowly defining it as issues inside “a sphere of intimacy to which one might retreat in face of the pressures to conform within society”—this essay adopts the narrow definition to emphasize the difference between a politician’s actions conducted as a private person and those as a public figure.⁸

Proper definitions of moralism and utilitarianism in the political perspective are also indispensable to our analysis. Here, this essay adopts Maynard’s definition of moralism: “the view that proper practical normative judgements about politics . . . depend, in some sense, on moral judgements.”⁹ Meanwhile, Foot defines utilitarianism as the combination of the belief that “the rightness or goodness of actions . . . consists in their positive productive relationship to these states of affairs” and “the identification of the best state of affairs . . . in which there is most happiness, most pleasure, or the maximum satisfaction of desire.”¹⁰ Finally, discussions in this essay will be confined to democratic nations, as lying attacks “at the very heart of democracy and the whole project of enlightenment epistemology”¹¹ and makes “political discourse” impossible and democracy “in crisis.”¹² Moreover, leaders of autocratic states with their de facto existence above the law cannot be spoken as legally punished or punishable: just as their multiple outrageous actions are unrestrained by laws, their lies are likewise hardly identified—at least in public—let alone penalized.

IIJustifications and Detriments of Political Liars

The discussion begins with the argument that lies are ethically detrimental in nature and therefore should receive moral punishments, whatever the circumstance might be. Sullivan, for instance, presses the necessity of punishing lying politicians by arguing that such persons as Clinton “demeans and threatens the entire system of government he is elected to defend.”¹³ A common utilitarian counterargument, of course, would emerge at this point with its justification of “white lies” that bring benefits. Sandel argues that Franklin Roosevelt’s denial of his plans of entering the Second World War in 1940 was justified, since it was “for the sake of a just cause”;¹⁴ however, the statement that lying might generate positive utilitarian results cannot obscure the natural immorality of lies. Kant comments that the so-called white lies do not justify deceit by their self-proclaimed intentions but only “escape being punishable merely by accident,” yet on the other hand “public justice can hold nothing against” telling the truth “whatever the unforeseen consequences might be.”¹⁵ In other words, despite that a lie and its consequence receive separate moral judgements and sometimes a lie can cause a positive result, the very fact of deceit should always be penalized. Adding to that, Sidgwick points out if “the lawfulness of benevolent deception in any case” was admitted, we could not “decide when and how far it is admissible by any clear method except that of utilitarianism,” a criteria against “Common Sense” in this case.¹⁶ Therefore, a “white lie” should not be exempted from punishment completely.

Some might also argue that lying as a practical tradition of politicians is within their administrative discretion despite its ethical-legal impropriety, and therefore should be exempted from punishment. For instance, Sartre emphasizes the “dirty hand” norm by using Communist leader Hoerderer’s statement: “I have dirty hands right up to the elbows. I’ve plunged them in filth and blood. Do you think you can govern innocently?”¹⁷ Walzer, however, suggests a moral rebuttal against the two counterarguments by stressing that the status quo is maintained not because it is morally accepted, but for the fact that “there is rarely a Czarist executioner waiting in the wings for politicians with dirty hands,” even if “most of us believe that those who govern us” are actually known by their “dirty hands.” This is because “we won’t be able to do that [i.e. punish the lying politicians], however, without getting our own hands dirty.”¹⁸ With a firmly moral stance, he insists on punishing lying politicians and calls for public action to conduct the punishments. The Editorial Board of New York Times expressed a similar argument in 2016, stating that “in the absence of” political leaders who “care about the truth,” “citizens who think for themselves will need to light the way.”¹⁹ Whether Walzer’s argument is excessively idealistic or not, the current commitment of the civil society on punishment against lying politicians is indeed far from satisfactory.

As demonstrated by Sidgwick’s “Common Sense” rebuttal above, the completely utilitarian perspective on this issue of lying politicians is unacceptable. Despite that the practicability of Walzer’s staunchly moral attitude is still susceptible, three fundamental conclusions can at least be drawn from the rebuttals of Kant, Sidgwick, and Walzer: one, lying is by nature detrimental and thus should never be exempted from punishment, even for a politician with seemingly benevolent motivation; two, lying should always be punished from a theoretical and ethical perspective, whatever the reality of juridical-political practice is; three, the contemporary custom of not punishing deceitful statesmen in the political arena needs a change. Such conclusions, unfortunately, still fail to answer our question: should we adopt Walzer’s perspective and determine that all lying politicians should be punished? Although the positive answer is indeed tempting, the societal effects of this idealistically moral stance must be considered: we must consider the aforementioned boundary between public and private lies. This essay argues that only the politicians who lie on affairs related to their public duty should be punished, while they should still enjoy the right to lie privately like any others.

Of course, the differentiation is unnecessary if the lying behavior is illegal in itself, such as perjury. Within legal practice, one consequence of encouraging punishment against politicians’ private lies is the misdirection of public attention. Lewis, for instance, points out that prosecutors in the Clinton-Lewinsky Affair were actually investigating sex instead of lies: a dangerous trend of overemphasizing private scandals at the expense of investigative justice on public crimes should thus be noted. The trend of prioritizing defaming scandals over real legal offences can also be extended to other private areas, and punishments against lies on private affairs would easily fuel such a trend if encouraged. This dangerous trend can lead to serious consequences: the zeal of gossiping individuals and media would end “the privacy of anyone who aspires to office,”²⁰ which entails an aggression against the politicians’ human and civil rights. From a utilitarian perspective, the focus on private affairs would force the prosecutors to investigate private affairs more frequently and lead to impaired procedural justice, and encourage partisan witch-hunts based on whispering campaigns and vaguely accusations of immorality.

The common counterargument that deception on private affairs reflect the general moral fallacy of a politician would naturally emerge here. Sullivan, for instance, commented on the Clinton-Lewinsky Affair that “the lies about sex are not exceptions to the general rule; they are the rule” for Clinton.²¹ However, despite that an exmarital sexual scandal such as Clinton’s is indeed morally reprehensible, it is risky to punish such private outrages by circumventing the law. Legally, politicians should be punished only after they have expanded their lies to the public realm or extended their moral untrustworthiness into public commitments. Some would still argue that the politicians’ lies almost always have impacts upon their capability of administrative duty: for instance, politicians covering up their diseases always suffer from a decline in competence of satisfying administrative responsibilities. Similarly, a politician may lie about an inappropriate personal handling with businesses, which later results in the corporation’s successful extortion against his/her policymaking. However, in the first scenario, the decision to lie about a leader’s health issues is usually a governmental consensus for security reasons that requires the agreement of representative legislators, rather than the personal will of the statesman alone. In the second scenario, the improper personal handling in itself entails illegality, the punishment of which needs not consult the various attitudes on private lies. Therefore, the potential public consequences of private lies still do not automatically justify punishments against the statesmen’s private lies.

Unsurprisingly, Lewis isn’t alone in defending politicians’ lies in the private realm. The US First Amendment, in fact, also provides a legal framework for protecting lies in the private sector but not those related to public responsibilities. The First Amendment, stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,”²² gives private lies a constitutional protection. However, regulations on speech can be justified if they meet a heavy burden, “which requires the government to prove the regulation furthers a compelling interest and is narrowly tailored to achieve that interest.”²³ According to Steiner and Eduardo, interests are “compelling” when they are regarding “regulation vital to the protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity, and respect for fundamental rights.”²⁴ Interpreting the burden from the perspective of lying regulation, it authorizes the right to regulate and punish lies related to public affairs. Therefore, politicians’ lies on private affairs should be protected, while those related to public duties should be punished.

IIIConclusion: Fine Balance Between Privacy and Punishment

The status quo of punishment against lying politicians is indeed far from satisfactory. Yet from a moral or utilitarian perspective, this essay does not encourage punishment against politicians’ lies on the private sector. More than twenty years ago, Clinton lied under oath yet still avoided effective punishment, with the media paying “excessive focus on the president’s sexual conduct” instead of the lies themselves.²⁵ To avoid drawing too much public attention to private affairs and wasting national resources, we must give a leeway for politicians to lie about private affairs. Yet to protect the democratic system and maintain trust, we must punish those lying about affairs relevant to his public responsibility to the people.

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