It should come as no surprise that judicial decision-making is a significant challenge, particularly for judges who don’t have juries to take them off the hook and who have to make all their court’s decisions themselves. Like in New Hampshire’s Circuit Courts, where most people handle their court-related business.
In those courts, it’s the judges who have to assess the credibility of witnesses and count on sworn oaths to ensure at least a modicum of truthfulness. Defendants and witnesses may sometimes embellish helpful facts, but concern about the serious consequences of outright lies usually serves the intended purpose.
As for police officers and troopers, there’s a list in New Hampshire that’s been compiled over the years, called the “Laurie List” (based on a case by that name) that identifies law enforcement personnel who have demonstrated repeated untruthfulness and that now brands their testimony as largely unreliable. Needless to say, officers on that list have little future in any capacity that might require a court appearance, and most seem to leave the profession pretty quickly. They probably also have difficulty finding other employment, too, as the job market for certified truth-abusers is pretty limited. So, fear of ending up with a scarlet “L” on their uniforms surely helps with that courtroom constituency.
Then, of course, there are the lawyers, who have strict professional standards that can get them suspended or disbarred for making untrue or even misleading statements to a court. And that’s really what this piece is about, because there’s a proposal from the current administration to second-guess the absolute standards of truthfulness and accuracy by its attorneys, in the interest of continuing to advance programs and positions it knows have no legitimate basis. Like that elections all over the country have been rigged in massive conspiracies, which it says may well happen again despite the fact that there’s never been a shred of evidence to support those claims.
What’s more, there would be protection of its lawyers against state claims of ethical transgressions, say, for so-called “truthiness” or “truth light” instead of actual truth, as well as for downright preposterous claims based on sheer fabrication and/or misrepresented case precedents. That is, to insulate its lawyers from any real consequences in the states where those claims have been made, the proposal would call for disciplinary cases not to be heard by those states’ professional conduct committees — as the current law provides — until the Attorney General’s office first determines whether there’s any cause for the complaints. What could possibly go wrong with that process, which I hope has also occurred to the representatives who might decide whether to implement this new plan?
In fact, if you were looking for a contemporary case of the fox guarding the hen house, this proposal would be it. It’s also the reason why lawyers concerned about future employment opportunities are leaving federal government service in droves. Because even if there are some DOJ lawyers left whose integrity is important to them, their sleazy colleagues have poisoned the well so completely that judges are becoming unwilling even to listen to their arguments.
That’s a shame, too, because having a stint at the Justice Department on your resume used to create desirable options like federal court judgeships or promising political careers. Those days are now gone for perhaps a generation of government lawyers, and it will take serious and sustained work during several future administrations that actually respect the rule of law in order to repair the damage.
L. Phillips Runyon III has practiced law in Peterborough for 50 years and was the presiding justice of the 8th Circuit Court for 27 years.