07/15/2011
By JEFFREY ROSEN
James B. Stewart
dedicates his new book “to all who seek the truth.” But in his view, the ranks of committed truth-seekers are shrinking before our eyes. “Mounting evidence suggests that the broad public commitment to telling the truth under oath has been breaking down, eroding over recent decades, a trend that has been accelerating in recent years,” he declares. “Perjury has infected nearly every aspect of society.”What is Stewart’s “mounting evidence” that perjury is on the rise and “false statements are undermining America
”? He concedes that “it’s impossible to know for certain” whether lying is “worse now than in previous decades,” but he emphasizes that “prosecutors have told me repeatedly that a surge of concerted, deliberate lying” by white-collar criminals “threatens to swamp the legal system.” There is simply too much lying, he laments, and “too little is prosecuted to generate any meaningful statistics,” in contrast to other serious crimes, like murder. “We know how many murders are committed each year — 1,318,398 in 2009,” he writes in the first sentence of “Tangled Webs.”At this point, if I were caught up in Stewart’s prosecutorial spirit, I might object that the first sentence of his book is a lie. In fact, according to the F.B.I.’s statistics, an estimated 1,318,398 violent crimes, not murders, were committed in the United States in 2009. And a vast majority of these violent crimes didn’t involve murder; they involved robbery and aggravated assault. But of course, it would be hyperbolic and unfair of me to accuse Stewart of lying without knowing more about the motive behind his false statement. Perhaps it was an inadvertent error, in which case calling it a lie seems much too strong. On the other hand, perhaps it was a deliberate misrepresentation devised to create a more dramatic opening — perhaps, in other words, he felt that comparing lying to robbery would be less vivid than comparing lying to murder. Deliberate misrepresentation seems highly unlikely for a Pulitzer Prize-winning journalist of his caliber, but without knowing more about his motives, I can’t make a fair-minded judgment about how seriously to treat his false statement.
Unlike Stewart, the Anglo-American legal system has long been sensitive to these fine distinctions. It has treated some lies more seriously than others, depending on the intent of the speaker and the effect on other people. It’s true, as Stewart notes, that perjury was dealt with severely in 16th-century England. (“The offender was typically punished by cutting out his tongue,” he observes wistfully.) But he doesn’t note that English and American courts were so concerned about the human instinct to tell self-protective lies that they avoided putting defendants in situations in which they might be tempted to commit perjury. Until the late 19th century, American courts never examined defendants under oath, considering it a form of moral torture to force people to choose among self-incrimination, contempt of court and perjury, along with the eternal damnation they believed was the real punishment for betraying an oath to God.
Although Stewart, now a business columnist for The New York Times, claims that lying has been on the rise, a more plausible thesis is that prosecutions for false statements have been rising — not because of growing contempt for the truth but because defendants are increasingly prosecuted for doing nothing more than denying their guilt to investigators. (These are the kinds of lies that courts used to excuse under a doctrine called the exculpatory no.) It wasn’t until the post-Watergate era that prosecutors began routinely to indict people not merely for lying under oath but for lying to federal officials even when not under oath — using a novel law that is the basis for several of the prosecutions Stewart celebrates.
