Why would Kathleen Kane lie under oath?

Photographer: Clem Murray/Philadelphia Inquirer/TNS via Getty Images

The Troubling Case of an Attorney General Who Lied

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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It’s never the wrongdoing -- it’s the lying about it. Pennsylvania Attorney General Kathleen Kane, who announced her resignation Tuesday in the face of a possible 14-year sentence for her conviction on perjury charges, proves the truth of that adage for public corruption cases. Leaking grand jury proceedings to embarrass a political rival would not have gotten her sent to prison. But lying about it under oath could and will.

How could a state’s top law enforcement official be so dumb? Why are perjury charges so serious? And why don’t people, even lawyers, realize it?

The answer goes back to the origins of the legal system. To put it bluntly, the truth of testimony under oath is the single most important component of legal justice. Whether at trial or at depositions, most factual statements most of the time aren’t easily verifiable or disproven. Unless we can treat truth as the default option, the entire justice system -- civil as well as criminal -- becomes little more than a charade.

For roughly 3,000 years, almost all legal systems -- Babylonian, Roman, Jewish, Christian, Islamic, what have you -- shared a single solution to making people tell the truth: the oath. The idea is simple. If you swear by a god or God you believe in, you won’t lie -- because you’ll be afraid of punishment.

In a world where it was and remains difficult to check veracity, the sincere oath is a spectacular ploy to ensure that justice is done. An oath-based system assumes that people lie frequently in daily life. But when it really matters that they tell the truth, they will tell the truth, provided they are put under oath.

Sometime in the 17th or 18th century, the oath system began to break down, as more and more people stopped believing that God would punish them for lying. Observers at the time noticed the change, and were profoundly worried about the consequences for justice. George Washington put it this way in his Farewell Address: “Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice?”

But the legal system couldn’t just give up on its most basic presumption. And it hadn’t gotten that much easier to prove that statements are true or false.

Convicting liars of perjury and sentencing them to harsh prison terms was the answer. It’s a distant second best to divine enforcement. In fact, punishing perjury is simply the desperate attempt of the legal system to make do without religious faith.

But you can see why it’s so important -- and why an attorney general who commits perjury is especially devastating to the credibility of the justice system.

That leaves the question of why people, including law enforcement officials, perjure themselves anyway. One reason is that they know how hard it is to get caught. But more fundamental to the crime of perjury is that today, lying under oath may not feel that different from lying in ordinary life.

The eventuality that George Washington feared has come to pass. An oath no longer creates a sense of awe and terror for most people.

That’s probably especially true for lawyers, who spend a lot of time around people who are swearing things under oath that may or may not be true.

Kane’s case demonstrated a real disrespect for the sanctity of oaths. One instance of her perjury involved her statement to the grand jury that she did not sign a “secrecy oath” or promise that she would not publicly reveal the contents of past grand jury investigations to which she became privy in her job. In fact, Kane had signed such an oath -- and she had also violated it by leaking grand jury information.

In other words, Kane lied under oath to the grand jury about having taken a different oath that she also broke.

The first one probably would not have gotten her convicted. Technically it’s a crime to violate a secrecy oath and leak information. But it isn’t a crime of the same order as lying to the grand jury. The first oath violation compromises grand jury secrecy. But the second oath violation, lying to the grand jury, undercuts the justice system as a whole.

The psychology of lying to cover up past wrongdoing is familiar enough -- just think of Bill Clinton lying under oath about his relationship with Monica Lewinsky. But it’s the blurring of ordinary lies with false testimony that’s the source of public disasters like the Kane case. It’s been a couple of hundred years since the legal system lost the “sense of religious obligation” that powered witness credibility. We’re still limping along without a very satisfactory solution.

(Replaces photograph accompanying this article to show Kathleen Kane. An earlier version featured another woman.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net