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Could a judge be charged with perjury for breaking a promise made during a confirmation hearing?

Lessig suggests no.

|The Volokh Conspiracy |

Chiafalo v. Washington involved the so-called "faithless electors." During the arguments, Justice Gorsuch asked Larry Lessig, if a faithless elector could be charged with perjury for violating a sworn oath:

JUSTICE GORSUCH: Counsel, could a State, for example, ask an elector to make a sworn statement as to his present intention to vote for a particular candidate, make the pledge an oath?

MR. LESSIG: Yes.

JUSTICE GORSUCH: And could a State later prosecute that elector for perjury if that statement under oath --if there's evidence that that was a false statement?

I chuckled at Lessig's answer:

MR. LESSIG: In principle, absolutely, Your Honor. We think, in practice, that would be just like with a Judge making a promise to a Senate committee upon confirmation --prior to a confirmation, it would be incredibly difficult to imagine enforcing in a way that wouldn't just be retaliatory against a particular elector.

In other words, a perjury prosecution would really be a pretext for a vote the judge cast.

Remember, promises made to Susan Collins are not enforceable.

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31 responses to “Could a judge be charged with perjury for breaking a promise made during a confirmation hearing?

  1. Baggett v. Bullitt 377 US 360 (1964):

    [a Wash state promise under oath required of state employees] does not offend due process because the vagaries are contained in a promise of future conduct, the breach of which would not support a conviction for perjury

  2. Remember, promises made to Susan Collins are not enforceable.

    I don’t think anyone but Collins took Kavanaugh’s promise seriously.

    1. A long time ago, a knew a Professor at a law school. He was absolutely brilliant in his subject matter; probably the most brilliant professor at the school, and possibly the most intelligent legal scholar I have ever had the good fortune to know.

      Anyway, one day he was describing how he was exploring a lawsuit in a different field than his specialty. And I was honestly dumbfounded at the sheer amount that he did not know and got completely wrong. From the things you would expect from a law professor (basic procedure, how litigation works in the “real world”) to realizing that outside of his specialized niche, even this brilliant legal mind did not, in fact, have a grasp of the intricacies of this different area of the law (yet had the hubris to believe that he did).

      Not sure what my point is, but I am absolutely amazed that Josh Blackman is able to post on so many diverse legal topics that come up. That’s the word …. amazed.

      1. That’s not just Blackman

        How much of the commentary on the Wisconsin Supreme Court yesterday came from people who had spent even 5 hours learning about Wisconsin administrative law?

        1. “That’s not just Blackman”

          Perhaps, but the posters that you might tend to trust (Eugene Volokh, Orin Kerr, Will Baude) are known for posting mostly within certain subject areas and are very careful and circumspect when they venture out.

          I am truly …. impressed …. that Just Blackman can pontificate about each and every area of federal and state law that is in the news! It’s like eating a whole wheel of cheese!

    2. I don’t know what promise(s) Kavanaugh made to Collins. But a commitment made [i]to[/i] a person whose own commitments cannot be confidently relied on (Collins), moreover [i]by[/b] a person whose truthfulness may be suspect (Kavanaugh), might be seen as sure thing. Hopefully, come January next year, Maine will be represented by a more trustworthy solon.

      1. …might {i]NOT[/i] be seen as a sure thing…

      2. The decoration you are looking for is <i>this</i>

  3. MR. LESSIG: In principle, absolutely, Your Honor. We think, in practice, that would be just like with a Judge making a promise to a Senate committee upon confirmation –prior to a confirmation, it would be incredibly difficult to imagine enforcing in a way that wouldn’t just be retaliatory against a particular elector.

    Now, Mr. Lessig, if an elector can be held legally accountable when the elector makes a sworn statement as to his present intention to vote for a particular (vote for or against) candidate or (bill), could make the pledge an oath would this not extend to politicians also. When a politician stands before the public is he not making a promise (or giving an oath) to the elector that that politician is going to do what is promised. So if that politician fails do do what is promised could that politician be removed by the courts instead of the voters? To me this situation is the same as an elector promising ahead of time to vote for the candidate supported by the party and a politician who makes a promise to the voters that elected him/her and then fails to at least attempt to fulfill that promise. This you know happens in every election in this nation. The politician promises to do all things to get elected than he/she does what he/she think is best for himself/herself first and party secondly and finally for the nation even though what is done is right opponent to what was promised.

    1. Politicians’ statements to voters aren’t usually under oath.

  4. The supremes should let the electors vote anyway they choose. The result will be the political parties doing a better job in appointing only faithful electors in the first place.

  5. If I swear at time X that I will buy chocolate ice cream, but when I get to the store at time Y opt for the chocolate instead, I’ve committed no crime at time X. Even if I’ve told everyone beforehand that I really intend to purchase chocolate, I’m eating a chocolate bar at the time, and go out of the room whistling the Bee Gees “Chocolate Symphony”, there’s nothing actionable at time X. Stricto sensu, the breach can only be at Y, since the statement at X always might have been true.

    Mr. D.

    1. Correction: If I swear at time X that I will buy *vanilla* ice cream…

      1. That’s not totally right, because perjurious intent can be proven with circumstantial evidence.

        1. But it’s not an inchoate offense. The bad act is the speaking of the promise to vote for Frodo or whomever, with the present intent to do otherwise. A deliberately false statement of present mental state or intention. And that’s a Schroedinger’s box until the action that either vindicates it or makes it untrue.

          Say someone’s testifying at trial, and they say that, being a good person, they’re not angry at the defendant. Opposing counsel then points out that the defendant has burned down his house, committed adultery with his wife, and backed over his dog while leaving. Witness then admits that he’s angry with the defendant. Basis for a perjury prosecution?

          Mr. D.

    2. No. I acknowledge your correction to vanilla, but the comment is backwards. The crime is at time X or not at all. (We might not have enough information at time X to prosecute, of course. But that’s when the crime occurred.) The crime is the lie, not the purchase; changing your mind isn’t a crime.

      1. But the point is that even if you establish ex ante intent to deceive, you can never establish a contemporaneous intent to deceive, which is why actions on a contract are called breach, and not “bad promising.” If the promisor in fact intended to deceive when making the promise and then repented and performed, you’d have no crime even if he went on Howard Stern and told the whole story.

        NB, I’m arguing what the law should be, not what it is.

        Mr. D.

        1. Escalier: To state the obvious, if Bob says “I will do X” (but if pressed would concede at the time that it would be very, very likely that he would do Y) and then in fact does X, Bob hasn’t said anything false.

          Mr. D.

    3. I’ve never practiced criminal law, but we seem to be equating perjury with breaching a promise. As I understand perjury, it involves a deceitful misrepresentation of an existing fact.

      Now, I can state that my present intent is to do x instead of y. If I later do y, the question remains whether I lied or just changed my mind. As another noted, there may be objective manifestations of my intent at the time I made the promise. Or there may not.

      1. How could there be incorrigible proof of a present mental state or intention, though? Neurology says that our understanding of our own actions is imperfect — we actually reach for something before deciding to reach for it, despite thinking otherwise. If you say that “Raymond Shaw is the kindest, bravest, warmest, most wonderful human being I’ve ever met in my life.” believing that you were not telling the truth, but for some reason you ended up believing yourself before you finished saying it, what was your mental state, and did you make a false statement of present belief?

        Mr. D.

  6. If I tell credit card company X, that if they provide the funds for me to purchase items Y, Z, and A, that I promise to pay them back for it at time B…

    And then when time B happens, I decide that, no, I really won’t be paying you back, that was just a promise, but you can’t hold me to it, and I changed my mind…

    Does the credit card company have any recourse?

    1. I am enjoying the idea of AL insisting he be under oath for every purchase he makes.

    2. The company may sue on the contract.
      The company may also be told by a judge that they should have
      thought more about it when they contracted with such a reckless and irresponsible person.
      In re Dorsey 120 B.R. 592 (Bankr. M.D. Fla 1990)

    3. You have civil liability for breach of contract. We’re talking about criminal liability for perjury.

  7. Why wouldn’t a contract form requiring anyone who is on the elector slate to vote for the candidate whose names is on the ballot with a monetary penalty if they do not fulfill their duty under the contract or if they find they cannot for whatever reason step aside and allow an alternate.

    I wonder if there is a procedure for naming alternate electors if an individual elector is unable to vote for some reason like death or incapacity.

    1. Penalties for breach of contract are generally not enforceable at common law. I suppose the legislature could change that generally or make an exception in this case–unless the Supremes find that violates federal law.

  8. ReaderY would like to point out that the hypothetical of a prospective judge making a pledge as a condition of getting confirmed was discussed by ReaderY as the best analogy from appelents’ point of view, prior to the oral argument.

    I think the answer is correct. Since testimony before the senate at confirmation hearings is under oath, in theory a judicial candidate who promises something and breaks the promise could be prosecuted for perjury.

    But permitting such a prosecution would be a very uphill battle, because it interferes with ability of judges to change their minds based on the evidence and argument that appears before them. How could you prove a judge intended not to follow the pledge at the time of making it, rather than when hearing the case?

    The situation is radically different from someone who doesn’t pay a loan. The law expects judges to listen to the evidence and argument rather than follow their preconceived views, so doing so is an expected outcome, hence can be presumed until proven otherwise. And if should be presumed. Not presuming it interferes with judicial independence. But there is no analogous legal obligation or expectation causing borrowers to change their minds after contracting for their loan. Hence the law can keep expectations and presumptions neutral, lowering the burden of proof.

    If the appellants’ theory that being an elector is like being a judge with an expectation of exercising independent judgment is valid, as I think it is, then pledges and statements made in the process of appointing judges provide a good analogy of how pledges and statements made in the process of appointing electors should be handled.

    1. Despite the title of the post, Gorsuch wasn’t asking about perjury for breaking a promise. In his hypothetical the elector made a false statement under oath about his intentions at the time, and the prosecution would be for lying about his intentions and not for changing his mind or otherwise failing to deliver.

      1. Yes, but exactly the same is true of an elector’s pledge, which is why it is a good analogy under Professor Lessig’s theory.

      2. Sorry, exactly the same is true about a judge breaking a statement he makes about his intentions or views at a confirmation hearing, where he is also under oath.

  9. Elena Kagan to the Senate Judiciary Committee: “There is no federal constitutional right to same-sex marriage.”

    https://www.nytimes.com/interactive/projects/documents/elena-kagan-documents#document/p329

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