Perjury and Polygraphs and Treason, Oh My!

Temperatures and political rhetoric were both above average in Washington last week.

Democrats accused Brett Kavanaugh of committing perjury during his testimony in front of the Senate Judiciary Committee. One group, the Democratic Coalition — the self-described “home of the Resistance” — went so far as to file a “criminal complaint” against the Supreme Court nominee.

Also last week, President Trump and others accused the author of an unprecedented anonymous New York Times op-ed of committing treason. Sen. Rand Paul, R-Ky., later suggested the White House use a lie detector on administration officials to determine the op-ed’s true author.

A few things to address.

First, Judge Kavanaugh did not commit perjury. (See here, here, and here explaining why.) But even if he did, the Democratic Coalition’s “criminal complaint” is futile. Only the governmentcan charge someone with a crime. On the other hand, the Model Rules of Professional Conduct for lawyers specifically bar filing “frivolous” claims, a rule that may be relevant for the attorneys behind this faux complaint.

Second, the author of the anonymous New York Times op-ed did not commit treason. The crime of treason is incredibly narrow. Under our Constitution, “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” It’s more than a stretch — not to mention unsettling — to assert that publishing criticism of the president in a newspaper amounts to levying war against the nation or giving aid or comfort to an enemy –- and an unidentified one at that.

Treason prosecutions are also rare, occurring fewer than 30 times in our nation’s history. This is for good reason. As observed by one federal court, “The reason for the restrictive definition is apparent from the historical backdrop of the treason clause. The framers of the Constitution were reluctant to facilitate such prosecutions because they were well aware of abuses, and they themselves were traitors in the eyes of England.”

Third, if the president truly wanted to find the anonymous author, a lie detector (also known as a polygraph test) is a poor way to do it. The American Psychological Association, among others, has dismissed its accuracy. In fact, a lie detector’s unreliability makes it inadmissible as evidence in most legal jurisdictions.

Hyperbole is always in vogue in Washington. But casual — and false — accusations of perjury and treason have regrettably become an accepted political norm. Words misused sow misunderstanding and enmity, leaving us none the wiser.

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