I’ve filed (faxed, with original FedExed for delivery tomorrow) another Trump-related legal-ethics complaint. This one is against Marc Kasowitz, the private lawyer who is leading Trump’s defense. The complaint is available here. (Regarding the prior complaint, my earlier post.)
The complaint is based on the report in the New York Times about Kasowitz’s communications with White House staff members:
His visits to the White House have raised questions about the blurry line between public and private interests for a president facing legal issues. In recent days, Mr. Kasowitz has advised White House aides to discuss the inquiry into Russia’s interference in last year’s election as little as possible, two people involved said. He told aides gathered in one meeting who had asked whether it was time to hire private lawyers that it was not yet necessary, according to another person with direct knowledge.
From Richard Grunberger, The 12-year Reich: A Social History Of Nazi Germany 1933-1945 (1971; Da Capo reprint 1995):
Techniques for promoting Nazi newspapers are best illustrated by Julius Streicher’s own local daily, the Fränkische Tageszeitung, which sent this circular to all readers reluctant to renew their subscriptions:
Your intention expresses a very peculiar attitude towards our paper, which is an official organ of the National Socialist German Workers’ Party, and we hope that you realize this. Our paper certainly deserves the support of every German. We shall continue to forward copies of it to you, and hope that you will not want to expose yourself to unfortunate consequences in the case of cancellation.
“I really, really like the work in Congress, I really do, but I love my family more. People may try to make it more than that, but it’s really that simple,” Chaffetz said on MSNBC. “I just turned 50. I’m sleeping on a cot in my office.”
Chaffetz On No 2018 Run: ‘I Just Turned 50, I’m Sleeping On A Cot In My Office,’ Talking Points Memo xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx
Everyone familiar with the academic literature on statutory interpretation is aware of the vehicles-in-the-park hypothetical. It was formulated by the legal philosopher H.L.A. Hart to illustrate the argument that the words in which a law is written must have “a core of settled meaning”—a set of standard instance in which no doubts are felt about [the law’s] application”—but will also have “a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.” Harvard law professor Lon Fuller denied the existence of any core area in which the law’s applicability was clear; for Fuller, the law’s applicability turned not on linguistic semantics but on the law’s purpose. Thus, he asked whether, under the hypothesized prohibition against vehicles in the park, “mount[ing] on a pedestal in the park a truck used in World War II…in perfect working order” would fall within the law’s core or its periphery.
Less well known is a separate hypothetical offered by Fuller to support his challenge to Hart. Fuller posits a law making it a misdemeanor “to sleep in any railway station.” He then supposes that two people have been arrested for violating this law; one who dozed off while waiting for a train, and one “who had brought a blanket and pillow to the station and had obviously settled himself down for the night[,]” but who had been arrested before he fell asleep. “Which of these cases,” Fuller asked, presents the ‘standard instance’ of the word ‘sleep’?” And would it be faithful to the law to say that the law had been violated by the second person but not the first?
The hypothetical is thought-provoking because applying what is assumed to be the literal meaning of the law—that what it prohibits is being asleep in a railway station—would yield a conclusion that seems nonsensical: that the law was violated by the dozing passenger but not by the guy who was bedded down but still awake. The hypothetical has been discussed by some very smart legal scholars and philosophers over the years, including Kent Greenawalt, Fred Schauer, John Manning, Scott Soames, and Andrei Marmor, and with few exceptions (mainly Robyn Carston) they have accepted that assumption. Schauer put it as well as anyone: “Sleep is a physiological state, and as a matter of physiology Fuller’s businessman was sleeping. Period.”
But in fact (you can guess where this is going, can’t you?), the assumption’s validity is doubtful at best. It is entirely consistent with actual usage to use sleep in a railway station to mean ‘use a railway station as a place to sleep’ rather than ‘be asleep in a railway station.’
No linguistics in this post, just law. The post is about a legal-ethics complaint that I’ve filed with the District of Columbia Bar against three lawyers in the Office of White House Counsel, including White House Counsel Don McGahn.
The complaint relates to the episode in March when, two days after the House Intelligence Committee’s public hearing with Jim Comey and Admiral Mike Rogers, Rep. Devin Nunes (chairman of the Committee) held an impromptu press conference at which he breathlessly announced that “he had been shown evidence that ‘on numerous occasions, the Intelligence Community incidentally collected information about U.S. citizens involved in the Trump transition.'” (NYT [watch video]; press release.) Nunes then rushed to the White House to present this information to the president, who said that it “somewhat” vindicated his claim that President Obama had wiretapped him. Nunes was widely seen at the time as carrying water for Trump, and that view was confirmed when it was reported that the information in question had been provided to Nunes by the White House.
It was later reported that two lawyers in the Office of White Counsel had been involved in disclosing the information to Nunes. One of those lawyers, Michael Ellis, had until only a few weeks earlier been the House Intelligence Committee’s general counsel. Ellis is the primary target of the complaint, and the principal allegation against him is that his reported actions violated violated legal ethics that arose because of his previous work the House Committee’s lawyer.
As I’ve noted, John McGinnis and Mike Rappaport have responded to my post “The language of the law” is not actually a language. They disagree with what I said, and in this post I will return the favor.
McGinnis and Rappaport make two basic points. First, they say that I did not address their argument that The Language of the Law is a technical language and that as a result there is a gap in my analysis. Second, they dispute my argument that the rules of legal interpretation are not analogous to the cognitive processes that underlie comprehension.
The Language of the Law as a technical language
McGinnis and Rappaport accept the point in my earlier post that legal language—or The Language of the Law, to use their preferred term—is not a full-blown language comparable to Hindi or Pirahã. Their paper recognizes that The Language of the Law is “not wholly independent of ordinary language”, and they describe it as “an overlay on ordinary language.” And they don’t take issue with the statement by Peter Tiersma that I quoted: “If we isolate what is distinctive in legal English, leaving out features of ordinary speech, what remains is far too incomplete to function as a language.”
This is important because McGinnis and Rappaport also don’t disagree with my statement that the strong version of their analysis (meaning the version that assumes a “wide conception” of language) relies on their analogy between The Language of the Law and ordinary language. So in order to defend that portion of their argument, it’s essential for McGinnis and Rappaport to show that their analogy is valid. I don’t think they’ve done so.
Posted in "A technical language", "interpret", "interpretation", "Language of the law", "language", Discourse coherence, Interpretation versus comprehension, Law & linguistics, Legal language, nature of, McGinnis, Polysemy, Rappaport, Rules (vs. generalizations, regularities, etc.)
John McGinnis and Mike Rappaport have posted a jointly-written response to my post “The language of the law” is not actually a language. If this is an area that you’re interested in, you should read what they have to say.
I intend to prepare and post a response, but in the meantime, here is what they believe was the most significant gap in my argument:
Most significantly, Goldfarb fails to address our argument that the language of the law is a technical language. There is little doubt that there are technical languages: many authors have recognized them and many authors have maintained that the language of the law is one such technical language. Goldfarb, however, never explains how he would account for such languages. To be persuasive, he must provide such an account and then explain why our arguments about the language of the law do not follow under his account.
In my first language-of-the-law post the other day, I talked about the fact that the words interpret and interpretation are polysemous—they can be used in multiple different ways that are related to one another: they can be used to refer both to the conscious process of deliberation that underlies legal interpretation and to the automatic and effortless cognitive processes that underlie the comprehension of utterances and texts. And I said that although it’s not unusual to use those word in both ways, in the context of discussing legal interpretation the can be to obscure the fact that the processes differ. As a result, I prefer to use interpret and its derivatives only with respect to legal interpretation, and to use the words comprehend and comprehension to refer to the cognitive processes by which utterances and texts are understood.
It occurred to me that this would provide a good lead for me to discuss some of the assumptions that underlie my efforts to apply linguistics to legal interpretation. I’m going to do that now, and I’m going to do it by drawing on (and adapting) something that I wrote as part of a book proposal.