Norton is the Rothgerber chair in Constitutional Law at the University of Colorado Boulder.
When regular people lie, sometimes their lies are detected, sometimes they're not. Legally speaking, sometimes they're protected by the First Amendment – and sometimes not, like when they commit fraud or perjury.
But what about when government officials lie?
I take up this question in my recent book, "The Government's Speech and the Constitution." It's not that surprising that public servants lie – they are human, after all. But when an agency or official backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.
My research found that lies by government officials can violate the Constitution in several different ways, especially when those lies deprive people of their rights.
Consider, for instance, police officers who falsely tell a suspect that they have a search warrant, or falsely say that the government will take the suspect's child away if the suspect doesn't waive his or her constitutional rights to a lawyer or against self-incrimination. These lies violate constitutional protections provided in the Fourth, Fifth and Sixth Amendments.
If the government jails, taxes or fines people because it disagrees with what they say, it violates the First Amendment. And under some circumstances, the government can silence dissent just as effectively through its lies that encourage employers and other third parties to punish the government's critics. During the 1950s and 1960s, for example, the Mississippi State Sovereignty Commission spread damaging falsehoods to the employers, friends and neighbors of citizens who spoke out against segregation. As a federal court found decades later, the agency "harassed individuals who assisted organizations promoting desegregation or voter registration. In some instances, the commission would suggest job actions to employers, who would fire the targeted moderate or activist."
And some lawsuits have accused government officials of misrepresenting how dangerous a person was when putting them on a no-fly list. Some judges have expressed concern about whether the government's no-fly listing procedures are rigorous enough to justify restricting a person's freedom to travel.
Can the Constitution stop the government from lying to the public? theconversation.com
When a person or agency backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.
But in other situations, it can be difficult to find a direct connection between the government's speech and the loss of an individual right. Think of government officials' lies about their own misconduct, or their colleagues', to avoid political and legal accountability – like the many lies about the Vietnam War by President Lyndon Johnson's administration, as revealed by the Pentagon Papers.
Those sorts of lies are part of what I've called "the government's manufacture of doubt." These include the government's falsehoods that seek to distract the public from efforts to discover the truth. For instance, in response to growing concerns about his campaign's connections to Russia, Donald Trump claimed his predecessor that Barack Obama had wiretapped him during the campaign, even though the Department of Justice confirmed that no evidence supported that claim.
Decades earlier, in the 1950s, Sen. Joseph McCarthy sought both media attention and political gain through outrageous and often unfounded claims that contributed to a culture of fear in the country.
When public officials speak in these ways, they undermine public trust and frustrate the public's ability to hold the government accountable for its performance. But they don't necessarily violate any particular person's constitutional rights, making lawsuits challenging at best. In other words, just because the government's lies hurt us does not always mean that they violate the Constitution.
There are other important options for protecting the public from the government's lies. Whistleblowers can help uncover the government's falsehoods and other misconduct. Recall FBI Associate Director Mark Felt, Watergate's "Deep Throat" source for The Washington Post's investigation, and Army Sgt. Joseph Darby, who revealed the mistreatment of prisoners at Abu Ghraib. And lawmakers can enact, and lawyers can help enforce, laws that protect whistleblowers who expose government lies.
Legislatures and agencies can exercise their oversight powers to hold other government officials accountable for their lies. For example, Senate hearings led McCarthy's colleagues to formally condemn his conduct as "contrary to senatorial traditions and … ethics."
In addition, the press can seek documents and information to check the government's claims, and the public can protest and vote against those in power who lie. Public outrage over the government's lies about the war in Vietnam, for example, contributed to Johnson's 1968 decision not to seek reelection. Similarly, the public's disapproval of government officials' lies to cover up the Watergate scandal helped lead to President President Richard Nixon's 1974 resignation.
It can be hard to prevent government officials from lying, and difficult to hold them accountable when they do. But the tools available for doing just that include not only the Constitution but also persistent pushback from other government officials, the press and the people themselves.
Rosenberg is executive director of Open the Government, a nonpartisan group advocating for government transparency and accountability.
It is hard to ignore whistleblowers these days. A whistleblower complaint about a controversial exchange between President Donald Trump and Ukrainian President Volodymyr Zelensky triggered the impeachment inquiry and subsequent trial that dominated the news for months. Even while it was focused on the impeachment trial, the Senate was also looking into reports from another whistleblower alleging that a Trump political appointee interfered with an audit of either the president or Vice President Mike Pence.
Even Hollywood cannot seem to get enough of whistleblowers. While movies and television shows about whistleblowers are not new, the theatrical and Netflix releases of several movies last year suggest a growing appetite for more insight into who they are and how their commitment to creating an accountable society benefits the greater good.
The protagonists' motivation in "The Report," "The Laundromat" and "The Great Hack" were the same: A desire to use access to information and free speech to expose abuse of power. They understand on a deep level, even in the face of formidable resistance, that transparency is the first step toward ensuring the accountability that can address societal ills. By exposing corporate or government wrongdoing, whistleblowers often face tremendous personal and professional risks.
In "The Report," Adam Driver plays Senate staffer Dan Jones, who doggedly dedicates several years to investigate the CIA's enhanced detention and interrogation program after the Sept. 11 attacks. Jones uncovers that detainees were severely tortured — one killed — using waterboarding and other CIA interrogation techniques. The resulting 6,000-page torture report concluded that the program did not yield any significant intelligence breakthroughs. To date, despite years of litigation and advocacy by transparency and accountability organizations, only the executive summary has been released. More than 5,000 pages remain hidden from view, and those complicit in torture crimes have not been held accountable.
In "The Laundromat," Ellen Martin (Meryl Streep) gets the runaround after her husband dies in a tragic tour boat accident. She and the other victims of the accident never get the insurance payment they are entitled to because the company's liability coverage came from a shell company in the Caribbean being investigated by the FBI for fraud — a fact she uncovers while investigating the company's deceptive practices.
The fictional account follows the byzantine true story of the Panama Papers, the release of which uncovered a complex, massive tax evasion scheme. The 11 million documents a whistleblower provided to a German newspaper detailed the ways in which some of the wealthiest individuals in the world used offshore banks and shell companies to exploit the global financial system for personal gain.
The Netflix documentary "The Great Hack" explores how a London-based data company, Cambridge Analytica, scraped the personal information of millions of Facebook users and, unbeknownst to them, used the data to influence the 2016 U.S. presidential election, the United Kingdom's Brexit movement and other elections around the globe.
The film's central figure, David Carroll, sued Cambridge Analytica demanding full disclosure of his data set profile (one of the millions the company created) and for details on how the company obtained it. The movie follows Carroll's attempt to reclaim his personal information by taking up the fight in Britain, where privacy laws are stronger than here. The movie also features interviews with Christopher Wylie, a former Cambridge Analytica employee who blew the whistle on the company, exposing the way it harvested and then weaponized data to influence elections and grassroots movements.
The fallout from the scandal and the lawsuit pressured Facebook into taking more responsibility for how it shares user data with third-party entities and has prompted Congress to consider strengthening federal privacy laws.
These three movies underscore whistleblowing as a right, not a crime, and debunk the misconception that whistleblowers act out of self-interest. Instead, audiences can see how all the characters are motivated to expose and correct unethical and illegal activity.
But to do so effectively, whistleblowers need the protection of stronger, streamlined whistleblower protection laws and a cross-section of experts in their corner — lawyers, freedom of information advocates, journalists and even members of Congress — to provide guidance on how to safely disclose wrongdoing.
The need for resources that encourage and protect whistleblowers is vital. As governments and corporations become less open, the role of whistleblowers as agents of accountability is increasingly important.Hollywood's championing of whistleblowers as critical sources of information about wrongdoing and as pillars of an accountable and transparent society is a positive trend that must continue.
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Lidquist a professor of law and political science at Arizona State University.
President Trump's legal and political defenders are all singing the same refrain: The president can't be impeached; he hasn't committed a crime.
Alan Dershowitz, the constitutional lawyer now representing Trump, said it during an appearance on CNN. Sen. Ted Cruz echoed it on Twitter, noting there was "not even a speeding ticket." And, of course, Trump himself has used the phrase "no crime" repeatedly as he seeks to delegitimize the impeachment hearings.
But does the impeachment and conviction of a president require an actual criminal offense, as the president's counselors and supporters argue?
Democrats clearly don't think so. Jerrold Nadler, the Democratic chairman of the House Judiciary Committee, lectured senators at the impeachment hearing Thursday that the Constitution made it clear that a crime was not necessary for the president to be impeached.
This question of constitutional interpretation is critical to experts such as me, since the two articles of impeachment now pending in the Senate allege actions — including the abuse of power and the obstruction of Congress — that do not themselves constitute a violation of any criminal law.
And even though the Government Accountability Office has concluded that Trump's withholding of aid to Ukraine was unlawful under the Impoundment Control Act, Trump's actions do not give rise to criminal penalties.
It's important to understand what is not on the table.
Under the impeachment clause of the Constitution, a president may be removed from office "on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."
Treason is a criminal offenses, defined in the Constitution as acts that "consist of levying war" against the United States or giving "aid and comfort" to its enemies. The Supreme Court has held that it can take place only in wartime.
Under this definition, Trump did not commit treason. Treason is not a catch-all phrase for unpatriotic acts. It requires actions like those of Benedict Arnold, the American general who betrayed his country to fight for the British in the Revolutionary War.
Bribery, also a criminal offense, was not alleged in the pending articles of impeachment.
That leaves us with "other high crimes and misdemeanors."
The Republican Party has long advocated for constitutional interpretation that relies on the original intent of the framers. So what did the framers mean by this lofty phrase, and what did they reject as impeachable offenses?
During the Constitutional Convention, George Mason moved that the impeachment clause follow the term "bribery" with "or maladministration."
But James Madison objected on grounds that it was too broad and would subject a president to tenure only at the pleasure of the Senate. So the phrase was replaced by "other high crimes and misdemeanors."
The framers intended the phrase to convey a more serious connotation than simple incompetence or poor administration. In Federalist No. 65, Hamilton made clear that impeachable acts must involve "the abuse or violation of some public trust" and "relate chiefly to injuries done immediately to the society itself."
Hamilton made no mention of the requirement that actual crimes be committed, nor as far as I know did any other framer suggest that actual crimes were mandatory for impeachment.
Examples of impeachable offenses cited by the framers provide further context. In response to concerns that the president could use his pardon powers to protect his own bad acts from detection, Madison responded: "if the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him."
Madison makes no reference to any crime. His concern here is the potential for the use of presidential power for personal or other inappropriate purposes.
Fellow framer James Iredell concluded that presidential acts to obscure or withhold information from Congress could also constitute a violation of the impeachment clause if Congress was induced to act based on the deception.
The framers understood that "high crimes and misdemeanors" included acts that may not necessarily violate any criminal law, but do constitute a serious violation of the public trust.
It also has to be remembered that the word "misdemeanors" had a broader meaning at the time it was added to the impeachment clause. As law professor and historian Frank Bowman has pointed out, in the context of British law at the time "misdemeanor" did not solely mean a less serious criminal offense. Rather, "crimes and misdemeanors" was used more colloquially to mean bad behavior.
Advocates for Trump say the current articles of impeachment do not meet the threshold as they do not allege criminal offenses. The framers would be surprised by this interpretation.
The articles allege that Trump abused his political power to serve his own ends, including his reelection, and that in so doing he undermined the nation's security policy in terms of its commitment to Ukraine's defense.
Whether or not the evidence supports this charge, an actual criminal offense is simply not a prerequisite for impeachment in this or any other case. The framers are clear on this point.
Interpreting "high crimes and misdemeanors" to reflect the modern understanding of those terms as actual statutory offenses is inconsistent with the framers' original intent. Such an approach is also inconsistent with the broader theory of originalism, which relies on interpreting what the founders meant at the time of the Constitution's writing. Indeed, the president's position on "high crimes and misdemeanors" appears more consistent with the idea that the Constitution should be interpreted within a modern context as a "living" constitution — an interpretative method much criticized by many in the GOP.
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When it comes to democracy, sometimes Americans believe they not only invented the idea, they perfected it.
But two respected annual report cards out this week — one looking at democracy and the other at its anathema, governmental corruption — offer some sobering context for those who might instinctively believe that the United States is going to be naturally at the top of the heap.
The latest corruption study, by the venerable global watchdog group Transparency International, finds trust in the United States' political system at an all-time low and that government corruption has become a major concern for most Americans. The newest report on the state of global democracy by the Economist finds the United States dropping steadily in the last decade when compared with other countries.
American corruption on the rise
Since 1995, Transparency International has published its Corruption Perceptions Index, which analyzes corruption around the world. Countries are ranked from 0 (highly corrupt) to 100 (very clean). Overall, two-thirds of the countries scored 50 or lower, with the average being 43.
For the second year in a row, it found corruption in the United States on the rise. For 2019, the country received a score of 69, a two-point drop from the year before and its worst score in a decade. Because France got the same score, both were ranked No. 23 out of the 180 countries included in the index.
The United States faces many challenges, the group notes, including threats to its system of checks and balances, the growing influence of special interests and the use of anonymous shell companies to hide illicit activities.
"While President Trump campaigned on a promise of 'draining the swamp' and making government work for more than just Washington insiders and political elites, a series of scandals, resignations and allegations of unethical behaviour suggest that the 'pay-to-play' culture has only become more entrenched," the group reported.
No country received a perfect score, although Denmark and New Zealand came closest with an 87. Other highly ranked countries include Finland, Singapore, Sweden and Switzerland.
At the very bottom is Somalia, with a score of 9. Venezuela, Yemen, Syria and South Sudan were also among the most corrupt.
American democracy on the decline
Meanwhile the United States has only the 25th best democracy in the world, far from the "We're No. 1!" shouting of the typically prideful American view, according to the 14th annual Democracy Index published this week by the Economist Intelligence Unit, an arm of the British-based company that publishes the Economist magazine.
That ranking places the United States among the countries considered to be "flawed democracies" in 2019.
The good news is that the country's score of 7.96 (on a scale of 10) is the same as in 2018. But its score and ranking fell steadily during the past decade. In 2010 it was No. 17.
Still, North America retains the highest average score (8.59) of any region in the Democracy Index. That was thanks to Canada, with a score of 9.22 that pulled the region to the top.
The United States received a 9.17 for electoral process and pluralism but was dragged down by a 7.14 for functioning of government.
Americans' support for democracy remains strong, the report acknowledges, but adds that "popular dissatisfaction with how democracy is working in practice, both in terms of government dysfunction and a lack of political representation by the two main parties, has grown in recent years."
And where do the British authors rank their own country? No. 14, in the top tier of countries considered "full democracies." This from a country that still has a monarch as head of state and a Parliament paralyzed for much of the year over how to extract the country from the European Union
Overall, democracy is on the decline among the 165 independent states and two territories covered in the report. In fact, the average global score for democracy of 5.44 is the lowest since the index was first produced in 2006.
The top scorer was Norway. The rest of the top tier looked like a podium at the Winter Olympics: Sweden was No. 3, Finland No. 5 and Denmark and Canada tied for 7th. At the bottom was North Korea with a 1.08 — the latest reminder that President Trump sending a birthday card to Kim Jong-un was pretty unusual. (Russia, by the way, tied for 134th — which is 19 places ahead of China.)
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