Here’s a revolutionary thought. Our public servants have been lying to us at a fantastic rate. Suppose we decided we didn’t like that? I know this is far beyond the pale these days, but what would happen if we demanded our officials not lie to us? Crazy, I know, but lying is a kind of malfeasance. So what might happen when public officials who tell us direct lies suffer consequences? And if they don’t stop lying, we, oh, I don’t know, maybe, you know, fired them, or put them in jail?
Think about how most employers treat their lying employee. Suppose I employed, I don’t know, a gardener. (Hey, I’m fantasizing here; I hate weeding.) Suppose my gardener told me that she’d weeded the flowers we both knew she hadn’t? And she neglected to mention spilling all that gasoline on the shrubs? I’d at least reprimand her; if she lied again, I might find another gardener. Smaller lies and exaggerations come and go (“Sorry, I didn’t have time for that,”), but open lies are a different category, especially when you’re taking my money for it.
Suppose I lied to my boss at work? What would happen to you if you claimed you’d finished something you hadn’t? Or suppose you did something embarrassing under your company’s name but decided to pretend it hadn’t happened? You know, bringing the network down, agreeing to accept a cash payment, meeting Russian government representatives to open secret communication channels with our chief global adversary, that kind of thing? For most employers I’ve worked for, lying was “written warning followed by termination” stuff. And I think that’s the way it should be. Don’t you? Things start falling apart if you don’t stop people from openly lying.
We don’t call government people ‘public servants’ ironically. We pay them directly and let them spend our government’s resources to do specific public work for us. It doesn’t matter if you’re a meter-man or the senior Senator from the great state of Ohana; work for the government, and you are literally and legally a public servant. That has consequences, or at least it should.
If you, as a taxpayer, ask a public servant about official actions, must they tell you the truth? Legally, yes, except for specific and limited areas spelled out in advance.
Practically speaking, of course, no, public servants don’t have to tell you the truth, and they can even lie to you. There are reasons why so few people will risk telling you anything. We don’t prosecute people for lying by omission. We barely twitch for openly venial lying, and then only if they’re under oath, and even then only very rarely. At the same time, we vigorously prosecute people who disclose data, even when they should, and in spite of Whistleblower laws.
Whatever the laws say, public lying has no real legal consequences. There aren’t even social consequences these days. The liars have banded together to exclaim that everyone lies, and explain to you that if you’re shocked, you’re the sucker. And that must be true, right? We’re embarrassed for even asking. Nobody wants to be that chump.
So what kind of lies do our public servants do commonly? Some lies are institutional. We declare millions of documents ‘classified’ or restrict access every year. Some of those classifications are correct, protecting information that deserves to be closely held. Honestly, most people classify anything vaguely questionable to cover their asses; it’s so much safer than acting honestly. Some classifications are openly criminal, only enacted to hide embarrassing events. Think about police videos. Yes, there are laws against overclassifying and withholding information, whether it’s high crimes or just the automatic nonsense. Want to guess how many people we reprimand for misclassification each year, on average?
Have you ever said it would take an Act of Congress to change things? For open honesty, we have one: The Freedom of Information Act (FOIA). Here’s part of the Wikipedia description:
…Following concerns that the provision had become more of a withholding than a disclosure mechanism, Congress amended the section in 1966 as a standalone act to implement “a general philosophy of full agency disclosure.” The amendment required agencies to publish their rules of procedure in the Federal Register, 5 U.S.C. § 552(a)(1)(C), and to make available for public inspection and copying their opinions, statements of policy, interpretations, and staff manuals and instructions that are not published in the Federal Register, § 552(a)(2). In addition, § 522(a)(3) requires every agency, “upon any request for records which … reasonably describes such records” to make such records “promptly available to any person.” If an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, FOIA expressly places the burden “on the agency to sustain its action,” and directs the district courts to “determine the matter de novo.”
– Wikipedia, Freedom of Information Act
And despite that, administrations ever since have increasingly refused to comply with FIOA requests, forcing people to go to court for documents they should have handed over. Stonewalling works well: most people can’t afford to sue. And denying access has zero risks: we don’t prosecute or reprimand people for not obeying the FIOA law, even when they do it egregiously.
I’m not denying the Trump administration elevated public lying into laughable, gobsmacking nonsense, but they’ve only pushed the boundaries. It’s not like public dishonesty was in decline before Trump arrived. Each new political generation adds another layer of slime over acceptable political conduct, and we allow it, losing even our sensation of surprise.
Is lying part of the natural political landscape, as unavoidable as death and taxes? Ah, no. Really, no. Not a bit true. No, as in “Oh hell, no!” Lying is always bad. Good people don’t lie. Lying is dishonorable. And here’s the Southern guy in me: no real gentleman lies. I can’t even pretend it’s a tough ethical choice.
With that beginning, here’s the legal definition of malfeasance in office, as published by the Justia US Law site. You don’t have to read it end-to-end, but I included it in case you’re interested. The critical bit is the item A. (1):
Universal Citation: LA Rev Stat § 14:134
SUBPART F. OFFICIAL MISCONDUCT AND
CORRUPT PRACTICES
- 134. Malfeasance in office
- Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
- Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
- (1) Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars, or both.
(2) In addition to the penalty provided for in Paragraph (1) of this Subsection, a person convicted of the provisions of this Section may be ordered to pay restitution to the state if the state suffered a loss as a result of the offense. Restitution shall include the payment of legal interest at the rate provided in R.S. 13:4202.
The law talks about illegal actions, not words or statements, but suppose that speaking about public actions was a part of your job description? What if you accepted a position (paid by taxpayers, using our government resources) to talk to the public about public actions taken by their representatives: press conferences, town halls, direct meetings, that kind of thing? The things you state during those events are actions whether they’re claims, denials or ommissions. If someone charged with public statements considers a lie (or a knowing, critical omission), doesn’t that sound like they might “…Intentionally refuse or fail to perform any duty lawfully required of him,”? Every federal employee takes an oath to support their office, and I’m pretty sure ‘Lying to the public to keep your boss happy’ isn’t in there.
The truth is important. I think honesty is critical, and dishonesty threatens American democracy. As a republic, we elect representatives to act for us, assuming voters can make informed decisions. We need to know what our representatives are doing in our names if we’re going to vote in our interests. Public understanding is a bedrock, essential assumption underlying the whole deal. This is elementary civics stuff.
But what’s good for all of us as a whole — open honesty — can be bad for an individual who doesn’t want to admit what they did or didn’t do. For them, lying to the public helps them avoid blame and get reelected. Public honesty isn’t in the interests of the dishonest.
I’m not saying that everyone lies, just that the system can’t self-correct. Liars will lie if they can get away with it. Even if individual representatives try to hold to the old school idea of honor, it doesn’t stop the current crop of dishonorable people from lying. If we want our public servants to stop lying, it’s our job to stop them. They can’t and won’t stop lying on their own. That’s just not the way the system works.
Thankfully, I don’t think we’re helpless. We can make lying expensive enough to correct some of the worst problems. We need to call liars on their nonsense, especially our own tribal leaders, as quickly as we can. I’m not pretending it’s easy, but it’s feasible.
All we have to do is pretend to be as brave as high school students.
