Tangled Webs: How False Statements Are Undermining America: From Martha Stewart to Bernie Mado ff (Anglais) Broché – 27 mars 2012
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America faces a crisis: an explosion of perjury and false statements occurring at the highest levels of business, politics, sports, and culture. In Tangled Webs, Pulitzer Prize-winning author James B. Stewart applies his investigative reporting and storytelling skills to four dramatic cases, all involving people at the top of their fields: Martha Stewart, I. Lewis "Scooter" Libby, Barry Bonds, and notorious financier Bernard Madoff. Stewart draws on extensive interviews with participants-many speaking here for the first time- and previously undisclosed documents to show how such successful role models found themselves accused of criminal deception.
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Stewart uses extensive sources for his own narration. Chief among these are notes from investigations, court proceedings, and personal interviews. Although the book is non-fiction, it's a page-turner, because the machinations of the perpetrators and their victims are suspenseful, ensnaring, and powerfully emotional. Each of the perpetrators would ultimately explain their deceits as motivated by "loyalty," but this seems mostly self-serving and devious. Whatever loyalty they had in mind was to themselves, as all were readily prepared to let underlings and associates take hard falls to cushion their own. In the end, most of the celebrity liars recovered reasonably, with the exception of Madoff who will be in prison for a long time and has lost the love of his family and seen one of his sons commit suicide pursuant to the shame he showered on them.
These continuing losses of Madoff as well as those of Bonds, recently convicted of obstruction of justice, aren't covered in the book which was written in 2010 although published in 2011.
This book has several strengths, and perhaps just one weakness. The strengths are the readable and interesting writing, about larger-than-life "heroes" turned "villains." As he points out, these villains "evidently expect to be admired for this behavior." Meticulously researched and artfully written, the book provides considerable details, easily read and enjoyed. It also addresses a central problem "lying under oath [that] undermines civilization itself."
If the book has a weakness, it would be its failure to look at the bigger picture in order to frame the problem more usefully, to bring it perhaps closer to an appropriate remedy. The bigger problem, in my opinion, is that lying is rampant throughout all of society, not just at the level of criminal investigations and judicial proceedings. While it's true that celebrities routinely lie to protect their wealth and status, the problem seems far more extensive. We have in the US a system rigged for the rich and powerful, whether individuals or corporations, that rewards lying as "business as usual." Why is that? Two reasons, primarily: (1) lying pays and (2) liars are not punished. That might sound hard to believe, if you've not actually investigated it. However, there are few laws against lying, they are usually not enforced, and in many cases--such as politics--the Supreme Court protects liars. The Court has ruled that politicians can routinely lie and broadcasters must be willing (if they are not already eager) to sell to the liars and their campaign organizations advertising time to carry those lies to as many people as they can possibly infect.
So, when Stewart suggests that fixing this problem "requires a capacity for moral outrage," he's right, but as a remedy that prescription falls far short. To bring the epidemic under control, we are going to need to invent and employ new solutions. For example, Snopes on the Web publicizes some lies ("urban myths") and many people check Snopes before they pass lies along. PolitiFact and FactCheck, two other Web sites, investigate political lies and policy lies. New products such as Wolfram Alpha, StateOfTheUSA, and numerous regional indicators projects aim to provide curated and reliable answers to important questions. Wikipedia enables many people to edit and polish statements, hopefully bringing them rapidly to a state of truth. A new organization, TruthSeal.org, offers means for people and organizations to affix seals of truth to their vetted claims and to offer bounties for people to present falsifying evidence. In these and other ways, we might create stronger incentives for truth telling and stimulate social networks of people to ferret out lies in the public information commons. By changing the incentives, rewarding truth tellers and punishing liars, we could hope to begin to change the course of this rampant social disease.
Without some change to the rules of the game, we should continue to expect the same outcomes, over and over.
In fairness to Stewart, he wanted to tell a compelling story and get people thinking seriously about how our society encourages obviously sociopathic behavior. He does that extremely well. Another book will be required to look at the bigger, more general problem, consider the situation from a problem-solving point of view, and lay out the best courses of action for implementing remedies. Readers who might be interested in my own study of that problem and proposed recovery plan should consider TRUTHINESS FEVER: How Lies and Propaganda are Poisoning Us and a Ten-Step Program for Recovery.
That always gets some laughs when I say it to clients and to witnesses I am preparing for testimony. I am not encouraging them to lie under oath; quite the opposite. Instead I am telling them a fact of courtroom life-"there are going to be lies told, and you had better be prepared for them." I explain that the fact that people on the other side may lie, it does not allow lies on our side. My job, as a lawyer, is to ferret out those lies and expose them. Once a witness is revealed as a liar on a subject, the witnesses credibility on every subject is shot.
James Stewart, as a journalist and as a lawyer, has seen this epidemic grow. When the rich and powerful like Bill Clinton, Barry Bonds, Bernie Madoff think nothing of rising their right hands, swearing to tell the truth, and lying through their teeth, something has gone terribly wrong. But although James Stewart's excellent book focuses on the lies of the power elite, the truth is that perjury is probably the single-most common crime in America today. And as Stewart notes, its not just the witnesses, lawyers are often the enablers, the messengers of deceit, spreading the word, "we need you to say X". And when X is really Y, that is perjury.
So where does it stop? Hopefully the end begins now. Our nation cannot endure long if truth is simply a commodity, rather than a sacred flame that lights a democratic ideal.
And in spite of the participation of some lawyers in this culture of deception, many of my colleagues before the bar agree with me. When I tell my joke, most don't crack a smile.
Read this book and join the revolution.
In opening and concluding sections, the author ties the four stories together by shucking his customary objectivity for a jeremiade against perjury and official lying. He has passionate feelings on the subject that no doubt were part of the source of his energy that allowed him to so meticulously record these events. While I am more than sympathetic to his views on this point---in my case he is preaching to the choir---I did not find those parts of the book particularly persuasive; they are not the reason to buy it. This may be in part because of the very excellence---the irrefutable, closely documented objectivity---of the main body of the book. This is one book where reading just the first and last chapters is the exact opposite of what you should do.
I did not.
But I did learn more than I ever thought I wanted to know about the nuts and bolts of the Martha Stewart prosecution and the prosecution of Barry Bonds. I read the sections on Bernie Madoff, but I still do not understand the investigation of him. Yes, I get that his investment firm was merely a gigantic Ponzi scheme, but the covering scam he used to deceive regulators and investors remains impenetrable to me. I am not sure that is Stewart’s fault, but I suspect it is.
Stewart is, of course, right: The administration of justice depends on truth-telling. If we lie with impunity, then the center will not hold. Got it. In an ideal and transparent world, discovery of facts would be what the law school professors used to call "a mere matter of proof."
Stewart has a lopsided view of the world. He frets about the consequences of witnesses who lie to the government without ever stopping to consider what happens when government lies to the people. This gives the book a quaint, 1950s kind of feel: If we all just told the truth, why everything would be all right.
Reality is, and, frankly, always has been, a lot more nuanced.
The government has perverted the grand jury process. A device once intended to protect people from an over-reaching government is now a secret tool the government uses to launch lengthy and intrusive searches. The cloak of grand jury secrecy is used to justify a one-sided game of hide and go seek. A federal agent might knock on your door to ask questions. He won’t tell you what others have said about you. He will tell you he cannot relay such information. But he will question you if you permit him to do so. And he will take notes. If those notes don’t match the account given by another witness, you just might face a federal prosecution for lying to a federal official. We let government define the truth while permitting it to deceive.
Can someone tell me why it is a crime to lie to the government, but mere business as usual for the government to withhold the truth? The current rhetoric is that the government needs investigative tools to protect us against crime. There was a time in which we viewed ourselves more in need of protection from government. All we like sheep have gone astray. We don’t even know how many crimes are defined in the penal codes of the state and federal governments. We’re broke, and yet we imprison more folks per capita and for longer periods than any other nation on Earth. There’s something wrong here, all right.
The fact that a few privileged plutocrats lied to the government and got caught is not what is undermining America. Stewart spend no time arguing this proposition. What is undermining the nation is the loss of a common set of interests and a common conception of right, the very things that Cicero long ago taught define a commonwealth. There is a crisis of legitimacy in the nation that runs far deeper than a few isolated prosecutions.
I recently watched an interview with San Francisco’s Tony Serra on the topic of snitching, or becoming an informant for the government. Serra argues that it is wrong to snitch: it undermines a person’s sense of honor, and it undermines the adversarial process, thus turning us all into potential agents of the state when the price offered for what we have to say is right. The government can buy witnesses with liberty, Serra argues. A defendant who offers something to a witness gets charged with witness tampering. This asymmetry is fatal to liberty.
So, too, with lying. We get the government we deserve. If we permit government to lie with impunity that cheapens the value of truth. Is it any wonder that a people distrustful of its government will lie to government agents?
Clients who lie to government agents face the risk of jail time. They face that risk even if they tell the truth, so long as the government chooses to credit the contradictory tales told by another as truth. The fact of the matter is that determining what is truth is rarely simply a "mere matter of proof." Sometimes the truth is a matter of what one chooses to see. Giving the government a set of two-way mirrors in its search for truth blinds the very people and makes engaging the government risky business for us all.
Go ahead and read Stewart’s book. It won’t hurt you. It is a painstaking recreation of several high-profile cases. The book can be read with profit by any criminal defense lawyer handling white-collar criminal cases. But don’t read the book to see what is undermining America. Stewart hasn’t a clue. He apparently believes that if we all just rolled over and gave the government what it wanted all would be well in this the best of all possible worlds.