The Lying Lords of the Law – How the Law Exalts Immorality
(Can the Law rectify the present political quagmire?)
Today’s political questions, like all political questions, are intertwined with legal questions. For example, the Congress of the United States has to decide whether it will vote for a robust and revivifying infrastructure bill along the lines advocated by Bernie Sanders, or a miserly, miserable bill recommended by neo-Confederate cowards like Joe Manchin. Also, the Congress, and potentially the Courts, will have to decide whether the filibuster rule is invalid because it is patently anti-Democratic or whether it is immune from legal attack even though there is nothing in the Constitution, or in any federal statutes, which authorizes or condones the rule. In addition, the men at the helm of government must decide whether mandates, to wear a mask during this covid emergency, are valid or whether they violate some undefined, elusive principle that allows one to do whatever one wants even if one’s behavior can spread death.
Some people think that these questions can only be resolved by the Law. These people reverently seek the guidance of the Law, an entity which supposedly possesses all the grey-haired, good graces of Andy Hardy’s Father-Judge in those god awful late 1930’s Andy Hardy films, starring Mickey Rooney and Judy Garland, which were designed to make America ignore the Depression, ignore the rise of the Nazis and sink into spineless, politically impotent quietude.
Since so many people look upon the Law with wholly ignorant, puppy dog adoration, I think I ought to tell you what I, as a lawyer, learned about the law.
When I worked at a law firm which represented insurance companies, and strode around New York with all the puffed-up pomposity that only an insecure, poor Jewish kid from Brooklyn can affect, I savored the respect lavished upon me because I was an attorney.
However, at the same time I had contempt for the scores of peons who complimented my “towering legal mind.” Didn’t they know the G-d’s honest truth: We attorneys are a tribe of urbane, erudite, legal thieves. We attorneys use convoluted reasoning, verbal obfuscations and all of the informal logical fallacies delineated by Aristotle to make that which is right wrong and that which is wrong right.
However, enough abstract condemnations of Law. I will be concrete. I will explain, with specificity and precision, precisely how attorneys lie every single day.
Very simply, my legal education taught me to lie (I am a lawyer, am currently admitted to practice in the Courts of New York State, in the Southern and Eastern Districts of New York in the Federal Courts, and I am a graduate of NYU School of Law). Just a few examples:
A) When New York Attorneys Routinely Forge Judge’s Signatures
Different jurisdictions have different procedural rules. In this section, I am referring to civil litigation, or non-criminal cases, in the New York Courts.
Before a lawsuit goes to trial, counsel might want to get information from a third party. In New York State, he can do so by serving a subpoena on a third party. The person who gets the subpoena can protest the subpoena by asking the Court to quash the subpoena for any number of reasons. However, most people who get a subpoena don’t realize that they can protest its validity. The subpoena is an imposing document, especially in the New York Courts, since it often bears a Judge’s signature and states that a Judge has ordered the third party to answer questions or tender books and records.
However, New York law does not require that a Judge sign a subpoena:
(a) Without court order. Subpoenas may be issued without a court order by the clerk of the court, a judge where there is no clerk, the attorney general, an attorney of record for a party to an action…
The New York Civil Practice Laws and Rules, Section 2302 (a); You can find this at https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvp-sect-2302.html and many other sites (Emphasis Supplied)
Although an attorney can issue a subpoena without the Court’s assistance, the Blumberg Company, desirous of assisting attorneys in their deft distortion of the Law, created a form which contains a space for a judge’s signature and archaic language asserting that the judge ordered the subpoena. And in New York, many attorneys use the Blumberg form and regularly forge the signatures of Judges when they compose subpoenas. As I said, the law doesn’t require a judge to sign a subpoena, but the forms have a space for a Judge’s name, and counsel knows that what appears to be a judicial directive to appear for questioning will make the average laymen surrender pretty quickly. The first time I drafted a subpoena, my boss, who of course was also an attorney, told me to “pick and sign the name of any New York judge.”
In some cases, I have made motions to quash the subpoena, and in my motions I argued that the subpoena was, among other things, a bald-faced lie as it forged the name of a Judge who supposedly ordered the subpoena. The judges who heard my motions, challenging the subpoenas, never addressed this issue. They addressed my other arguments, to the effect that the witness had no relevant testimony to offer and that the request for testimony was an unfair and unduly burdensome “fishing expedition” (when you want to say that your adversary is just wasting time looking for stuff that does not matter, you say he is on a fishing expedition), but they always steered clear of my allegation that the subpoena was, essentially, a fraudulent document.
I have spoken to other attorneys about this, and they defended an attorney’s right to forge a judge’s signature. One attorney told me that an attorney could forge a Judge’s name because an attorney is an officer of the Court.
Really. If an attorney is an officer of the Court, then I think the Attorney General of the United States is an officer of the Court, but I didn’t hear anyone say that Nixon’s attorney general was allowed to lie because he was an officer of the Court. I want the people to understand something: The lairs of the liars and shitheads are not only in the administrations of conservative republican Presidents; they are disseminated throughout the sapphire-blue cities saturated with rich liberals who persecute the poor as much as the supposedly far more malignant right wing. (I may have said this before, but I’ll say it again: Take a look at a chapter, in Michael Harrington’s “The Twilight of Capitalism,” entitled “Bourgeois Liberalism.” In about a dozen pages he explained how the New Deal and the Great Society helped the rich more than the poor. If you want to know why so many blacks don’t vote, so many poor whites vote for republicans, and the liberal base appears to be upper middle class whites whose knowledge of capitalist excesses has nothing to do with personal experience and is solely derived from the ladylike ruminations of academia, this chapter is indispensable reading.)
B) How Lawyers Teach Clients to Lie at their depositions
i) Say “I don’t recall” to defer relating your version of the truth
Before trials, lawyers often conduct depositions. In a deposition, you question the opposing party and force him to commit to certain facts. You don’t want the other side to constantly wiggle around, change their story and become a baffling moving target. You want to pin them down.
For example, you may ask the deponent if a traffic light was red. If he says yes, this will make it hard for him to say it was not red at trial – if he says something inconsistent at trial, the deposition testimony is read to the jury and he is unmasked as a lying fool. However, the other side might not want to say if the traffic light was red because it might not yet be clear what factual assertions will help its case.
However, there is a way for a party to refrain from telling the truth. Although you can’t change no to yes or yes to no without losing credibility, you can say “I don’t remember.” If you say, at the deposition, that you don’t remember, you can say whatever you want at trial and your assertion, at the deposition, will not be read to the jury. This gives a party the chance to delay in stating his position. The party can justify the change in his answer, from I don’t recall to something more concrete and specific, on the grounds that in the interim he recovered his memory. (Generally, memories decline with age, but the Law imagines fountains of youth at the ready to revive one’s memory)
This is why Ronald Reagen said “I don’t recall” to dozens of questions at his deposition regarding the Iran-Contra hearings. This is why you shouldn’t respect the legal system.
ii) Say that you never spoke to a single person in the world about your upcoming deposition
At the beginning of a deposition, the witness is often asked if he spoke to anyone about the deposition in advance of the deposition. Very often, the witness responds by saying he spoke to no one. Usually, he says this because his attorney told him to say this even if it is bullshit.
If Joe says, at his deposition, that he spoke to Steve about his upcoming deposition, then the other side may depose Steve to determine how Joe’s conversation with Steve may have influenced what Joe said at his deposition.
Therefore, when Joe is asked, at the beginning of his deposition, if he spoke to anyone about his deposition, he will say no. He will say no because his attorney has told him to say no. This lie may appear minor, but it crosses a Rubicon of sorts. When the attorney instructs his client to lie, the client in encouraged to lie whenever he can get away with his lie.
Of course, we know Joe is lying when he says he spoke to no one. If one is going to a deposition which may influence whether or not one will win one’s suit for 50 million dollars, believe you me: One will tell his wife, his best friend, and maybe a dozen other friends and acquaintances that he has a deposition, scheduled for next Monday, with regard to his suit for 50 million dollars.
iii) How to Change a Client’s Testimony by Pleading Bladder Problems.
Sometimes, clients say really stupid things, at depositions, which will hurt their case. A conniving counsel will claim he has to go to the bathroom. Over the urinals, one can tell one’s client that he should change his testimony.
C) Do you remember Justice Clarence Thomas’s confirmation hearings? He was asked, among other things, what he thought of Roe v Wade (The landmark decision holding that women had a right to an abortion) when it was handed down. He said he had no opinions about the decision, explaining that when it was decided, he was busy in law school and his attention to his law school work precluded paying attention to the news. Does anyone really believe that? Of course you know this was nonsense. Everybody was talking about Roe v. Wade, and I can assure you that any law student who was not in a coma knew about Roe v. Wade. He made that up because had he mentioned his beliefs about Roe v Wade, he would be recused from a case in which abortion was at issue. More specifically, if he had honestly answered the Senator’s question, and had said that he was opposed to abortion (he is, I believe, opposed to abortion and he was selected to satisfy George Bush’s right flank) and the Order in Roe v Wade which legalized abortion, we would have concluded that he had already made his decision about abortion and that his mind would not be sufficiently “open” to entertain differing views. Since his mind had been decided insofar as abortion was concerned, he could not be allowed to participate in a Supreme Court case in which abortion was at issue. So a man destined to sit on the high court of this country unabashedly and obviously lied to the American people. Very simply, he was selected by George Bush for the Supreme Court so he could vote against abortion, but he had to keep silent about this or he would not be allowed to vote on a case pertaining to abortion.
D) Applying Hegelian Dialectics to the Law and inciting a Riot of Illegality
Hegel said that every thesis had within it the seeds of its own antithesis.
If we apply Hegel to the lying law, we must conclude that the law will give birth to blazing and honest illegality.
Some of the readers of this essay might have disputes with landlords or merchants or bosses. I want to tell you, from the bottom of my heart: Be as deceptive and as vicious as your heart permits.
I guess I am thinking of Dostoyevsky’s assertion that if G-d is dead, everything is permitted. Since the people who run the state are unmitigated lying bastards, the peons in the state should ditch their scruples with dispatch.
Think about it: Donald Trump avoided service in Vietnam by complaining of a heel spur, but he doesn’t even remember which foot hurt. Think about it: Donald Trump says, without any evidence, that 3 to 4 million people voted illegally. Think about it: Donald Trump used the immoral shenanigans of bankruptcy law to rip off and not pay tens of thousands of sub-contractors, craftsman, plumbers, and electricians all over South Jersey. Why shouldn’t you lie to avoid the obligation to pay rent, especially if you live in places like New York or San Francisco where our imperious, iniquitous landlords are like the landlords of the England of Charles Dickens. Think about it: The law has decreed that crime shall pay.
Since the princelings of the Supreme Court have nixed the Covid-inspired eviction moratorium, I suggest that we bring back some of the stunts, of dubious legality, that poor people employed in the Depression. To stop evictions, dozens of tenants should descend on the premises, stand in the doorway, and stop the city marshal from evicting the tenants and changing the locks.
Perhaps we ought to do what farmers did in the Midwest in the Great Depression. Arthur Schlesinger related that at a foreclosure hearing designed to throw a farmer off his land, a bunch of fellow farmers went into the courtroom. The Judge scolded a farmer for wearing his hat. The farmers had had enough.
The farmers kidnapped the Judge. They took their judicial victim many miles away from the courthouse. The stripped him naked. And then they administered the justice of the American Revolution: They tarred and feathered him, i.e., they dipped him in hot tar and then threw him in mounds of feathers.
Perhaps we should take a page out of the record of the Catonsville Nine. They were a small group of Catholic antiwar activists, and they went to their local draft board and burned the records of guys who were due to be drafted to go to Vietnam. Of course, in this digital age we can’t destroy the system’s records by absconding with documents. However, perhaps we can learn how to do a virtuoso performance of hacking ala the Russians and their campaign against Hillary Clinton. Perhaps, we can hack computerized court files and destroy judgments which provide that a certain person is in debt or must be evicted or should be imprisoned. This might seem extreme, but it somehow seems just.
For example, for many years housing court cases, in New York City, were not reported to credit reporting agencies unless a money judgement was awarded to one of the parties. However, this changed in the Clintonite 1990’s when a new enterprise provided landlords with a list of all people who had ever been in housing court with their landlord. (The New York City Civil Court gave the information to the company.) If one wanted to rent an apartment, the prospective landlord might find out that one had been in litigation with a landlord before, and that prospective landlord may then refuse to rent. This put the tenant in a cruel predicament: He may be in litigation with his landlord not because he doesn’t pay his rent bill but because he brought suit because his apartment receives no heat and hot water. However, this sort of suit may put a tenant on the damning list of people who have been in court with their landlords. The upshot is that more people might have to put up with their landlord’s refusal to render basic services because if they protested, and their protests went to Court, they might never get a new apartment from a different landlord.
Of course, court records can really serve the purpose of libeling and destroying one’s life. When someone is convicted in Court for dealing drugs, one might go to jail, have a lot of empty space on one’s resume, and then never get hired after one finally leaves jail. But how are people convicted? They are convicted as if they are commodities on an assembly line.
For example, about ten years ago, New York Law provided that if one was indicted for murder, and one had to resort to court appointed counsel because of no money, one’s counsel would get a grand total of one hundred dollars to obtain the services of a private investigator who might be able to determine who really committed the murder. I don’t know how much one hundred dollars will get you today, but I remember that in the past a private investigator would conduct “directory research” or simply look in the phone book, for 100 dollars.
Court appointed counsel is often underpaid and overworked. Sometimes, as a consequence, they do a lousy job. I remember encountering a case in which a Defendant was convicted of murder as his attorney slept during the trial. The Defendant sought to revoke his conviction on the grounds that counsel’s representation was inadequate. The United States Supreme Court upheld the conviction. They had to. If they had reversed the conviction on the grounds of inadequate representation, they would have opened up a Pandora’s box which would have made us admit that poor Defendants are usually not given adequate representation and that that system is inherently, irredeemably, rotten to the core.
Since the judgments of courts are often meritless, I have suggested, in this piece, that Court records be tampered with and that data bases be hacked.
Of course, hacking government computers would be criminal, but criminal behavior is sometimes the noblest and bravest sort of behavior. Unfortunately, most people have a cramped and undeveloped sense of right and wrong. Most people think that the law and morality are one and the same. However, in my very first week of law school, I was advised that law and morals are two distinct and separate phenomena. I was taught that the law is interested in maintaining continuity with the past. The law wants people to know what they can expect if they behave in a particular way. If conduct A yielded legal result B in the past, conduct A should yield legal result B in the future. This sort of continuity – or should we say stasis or moral stagnation – allows people to know what to expect.
Of course, in the past it was perfectly legal to set Jews on fire for not conforming to the Roman Church, and people continued to die of infectious ailments that today can be vanquished with penicillin, but we will give people anti biotics today, precedents be damned. Somehow, insofar as the law is concerned, the past has an incontestable choke hold on our lives. Of course, the rule of Stare Decisis, which holds that Courts should decide cases the same way as they did in the past, is not sacrosanct, and the Court will at times have the balls to ask what would be good for society, but its tendency to adore the past like a fetishist for Victorian Pride and Prejudice, makes is reek like the workhouses of Charles Dickens.
I think therefore we can conclude that the law is not a repository of moral goodness. So what therefore is morally right.
E) The Superior and Antithetical Morality of Andre Gide
To me the best concept of morality was provided by Andre Gide: When one does what one thinks is right, even though most people think it is bad, one is acting morally.
The moral person is the person who disobeys the law in Germany and hides the Jew from the Nazis. The moral person is the person who violates United States Law by destroying draft records to obstruct the prosecution of the completely unjustified Vietnam War. The moral person violates Trumpian prejudicial law and hides the Latin American immigrants from deportation authorities. (Your rebuttal: Gidean morality is anarchy. My retort: Anarchy is better than Auschwitz.)
And so the moral person spits on the system. By contrast, the law-abiding person is a cipher of a “man,” a weak and lily-livered cowering conformist who will follow Hitler or Stalin or Trump or whatever brutish bastard holds the reins of power. Instead of following his G-d-given moral judgment, he will follow the law. Following the law is a rationale for disobeying G-d. (Although I am a Jew and have had many problems with Catholicism, I have had an abiding attraction for St. Thomas Aquinas’s Natural Law theory. He said there is such a thing as Natural Law. It is G-d’s Law and most children, by the age of 7, understand its most basic precepts, one of which is “Thou Shalt Not Kill.” In the early part of the 20th Century, most people adhered to legal positivism, which said the only law which mattered was the law of the State. However, after the Holocaust WE LEARNED THAT THE LAW OF THE STATE JUST WASN’T GOOD ENOUGH) So please let us tarnish and mar and debauch our damned “democracy” with gusto and contempt.
The law of course has a position, regarding morality, which is antithetical to Gide’s position. There is something known as the Lawyers “Code of Professional Responsibility.” It says, among other things, that an attorney shall avoid even the appearance of impropriety.
That, in a nutshell, is what it’s all about: appearances. In the Supreme Court’s decision validating Bush’s theft of the 2000 presidential election, it said that the recount had to be stopped because if the controversy continued it would appear as if our system was disordered or incompetent and people would question our system’s virtues. The law does not seek the truth; the law seeks to make the citizenry slavishly believe the bullshit peddled by the CEOs and miserly monsters of AmeriKKKa. Of course, the law is supposed to condemn that which is foul and improper, and not only the appearance of impropriety, but in the end it seems to care only for appearances.
Postscript: In the immediately preceding paragraphs, I suggested that illegal conduct might be preferable to legal conduct. I suggested that the law be dispensed with or contravened with rebellion and riotous rage. However, these suggestions and assertions were merely intellectual musings. I have not committed illegal acts. I do not condone committing illegal acts. I will not commit illegal acts.