Deceptive Truth: Kant, Sandel, & Bill Clinton

Occasioned by the suggestion of Sandel that it may sometimes be morally permissible to deceive people, so long as you do so without lying, I here examine such alleged truths as “I did not have sexual relations with that woman.”  After setting up the issues in Section 1, in Sections 2-4 I examine questions of language, communication, and truthfulness in assessing whether candidate deceptive truths really are true. These sections require little if any prior familiarity in the area. The fifth section, however, probably will be hard to follow unless you have some acquaintance with Kant’s ethics. Lacking that, you still may well be able to follow the Sections 6-8, and the final section on the Clinton impeachment has no prerequisites.

Kant famously held that it is never morally permissible to lie. When the murderer turns up at your door searching for the friend you are harboring in your house, you may not say, “She just ran down the alley.” Benjamin Constant came up with the murderer at the door as a counterexample to Kant’s absolute prohibition on lying, but Kant doubled down, embracing prohibition even in this extreme case (“On a Supposed Right to Lie from Philanthropy.”) This may have been a mistake on Kant’s part. At least, as I will argue later, Kant’s moral theory may well have the resources for providing a more palatable response to murderers at your door.

My chief purpose here, however, is not to join the legion of Kant scholars, all of them more Kant-knowledgeable than I, who have tried to improve upon what Kant said about this famous case. My focus, instead, is on deceptive truth telling – sometimes suggested as a tactic for doorstep murderers. In particular I am concerned with these questions: What are deceptive truths like and how common are they? Would Kant have made a moral distinction between lying and deceiving by saying something true, and if so, what sort of distinction? How should we evaluate the morality of deceptive truths, and, in particular, how do they stack up against lies?

                        1. Sandel on Kant on Deceptive Truth

Sandel, in the 7^th video episode of his enormously popular Harvard course (http://www.justiceharvard.org/2011/02/episode-07/#watch) suggests that Kant might be OK with a deceptive truthful statement to the murderer at the door. Perhaps, having told your friend to pick someplace to hide in your house, you say “I don't know where she is.” This would be truthful, says a student with Sandel’s apparent concurrence, because you have in your mind a sense in which you believe it to be true. You don't know where in your house your friend is hiding. (lecture 12:42 – 14:05) She might be in the basement ski locker and she might be up on the widow’s walk or under the billiard table. You would not have said what you did, had you not recognized the sense in which it was true. In fact, you hit upon it, by thinking “what can I say that is true but will probably save my friend.” So the moral law, which requires truthfulness, controlled your choice. You acted, in that respect, out of obligation.

Many relevant truths, of course, would have been friend-unhelpful. This one, however, might protect your friend by deceiving the murderer. In particular, you hoped that the murderer would interpret “don’t know where” in a sense that would exclude your knowing that your friend was in your house. (You may well have used a tone of voice and emphasis to encourage that misapprehension, e.g., a why-are-you-bothering-me-? tone of voice. Try saying “I don’t know where she is,” in different ways to see how you might be able to influence your imagined audience.) What you depend upon here to follow your obligation to tell the truth and yet save your friend is the vagueness of “know where.” 

 

Sandel illustrates his point further with Bill Clinton’s famous “I did not have sexual relations with that woman.” (15:37- 18:03) The vagueness here is in “sexual relations.” Clinton, in support of his truthfulness, presumably would have maintained that oral sex did not constitute sexual relations, taking that phrase to include only genital-genital intercourse. It seems obvious, however, that he used this phrase precisely because he knew that most people would take it considerably more broadly.

Sandel apparently thinks that Kant would not condemn Clinton’s ploy, or at least would not condemn it so sternly as he would a lie. I think that Sandel is wrong in this because Clinton’s statement, as well as much of what people try to pass off as deceptive truth telling is, in fact, just lying.

Sandel, however, would be on reasonably firm ground in saying that Kant would agree with him in characterizing the “don’t know where” and “sexual relations” statements as true. Unfortunately in this they would both be wrong, as I will soon argue. If I am correct, then Kant’s absolutism about truth would immediately undermine Sandel’s thesis about Kant’s attitude towards your deception of the murderer and Clinton’s deception of that very large television audience.

It is necessary here to make a point of historical clarification. What I am saying was a lie is “I did not have sexual relations with that woman, Miss Lewinsky.”  I make no such claim about “I have never had sexual relations with Monica Lewinsky.” The first was in a televised statement from the Roosevelt Room of the White House on January, 26, 1998. The second was a deposition response on February 17, 1998, in the Paula Jones case. The latter statement being under oath, raised an issue of perjury, vigorously pursued by Ken Starr’s investigation and grand jury and by the Republican majority of the Judiciary Committee of the House of Representatives.

  

As a witness in the grand jury Clinton, speaking about the deposition, gave a defense that was unavailable for the televised statement. There was a loophole left by plaintiff’s lawyers in the definition of “sexual relations.”  Under the deposition definition, to have sexual relations one must have contact with at least one body part of the other person that is listed in the definition. The list does not include the mouth. Therefore under the definition, and so far as we know from the testimony of Lewinsky and Clinton, she had sexual relations with him (involving a listed body part), but he did not have a sexual relations with her.

“Sexual relations” is symmetric, you say? Well, perhaps it is in common speech, but that is one of the hazards of using stipulative definitions in a deposition. They take strict precedence over ordinary meanings. Clinton exploited this bit of weak lawyering. 

Because his White House statement, the video of which Sandel showed his Harvard class, was made to the general public, however, and, in any event, came before the deposition definition was propounded, Clinton could only have defended it in terms of our common and everyday language. That defense fails.

After going through that argument that no “sexual relations” and “don’t know where” are lies, I will shift fields to establish that there are some uncontroversially true deceptive statements. I will then take a little deeper look at the question of the moral permissibility of deceptive truth, both from Kant’s point of view, and from ours as best we can have a view looking quickly.

Sandel helps his cause rhetorically by talking about being “evasive” and “misleading truth” rather than about “deceiving” and “deceptive truth.” But intentionally to mislead is to deceive, and deception goes beyond evasion. I will use the more accurate terminology for the cases at issue.

2.  Few Deceptive Statements Exploiting Ambiguity or Vagueness Are Truthful

Consider a case in which everyone in the audience understands the content of what the speaker said to be something that is, in fact, false, though false unbeknownst to the audience. The audience, then, is misinformed. They are deceived, as well as misinformed, if the speaker, knowing its falsity, intended them to come to believe it.  Usually this sort of deception is accomplished by lying. In the cases we are interested in, however, the speaker will deny lying, arguing that what he intended was a sense of what he said on which it was true. The whole point of the maneuver is to avoid lying.

Clinton could have said, “I never had any contact with that woman of the most remotely sexual nature.” That, however, would have been an unvarnished lie. He also could have told a benign truth, e.g. “I did not have genital-genital or genital-anal sex with that woman.” The downside of such truthfulness, of course, would have been the next questions that would have sprung up in millions of minds. So Clinton chose, instead, to deceive, as best he might, without telling an unequivocal lie, at least by his own lights. He could later try to defend his statement as true if worse came to worst. What was more important to him than future damage control, however, was current deception.

I want to avoid, where possible, tedious niceties in distinguishing between truthfulness as telling what is believed true (whether true or not) and truth telling as saying something that really is true (whether believed so or not). To that end I am going to assume that my speakers know the truth about what they are talking. The speaker at the door was correct in believing his friend was inside, and Clinton knew what he had and had not done in the Oval Office.

When what the speaker both intends and expects to communicate is false, and when she succeeds in communicating that falsehood, how could what she said be true? The key is supposed to be speaker intention. It is not what she intends her audience to come to understand, however, but instead some internal elevation to the status of “her meaning” of something entertained but not communicated. Clinton's counsel at the impeachment hearings tried this exact line of argument. Clinton did not lie because of the meaning of "sexual relations" "in his own mind." (lecture 17:22)

   

Clinton may well have recited to himself mentally, “What I mean is that I did not have genital-genital relations.”  He could add “and I really, really mean that.” But why should we take this little internal ceremony to have any relevance to fixing the meaning of what did not remain in the speaker’s head, but passed his lips and out to the television audience – an audience that he intended to understand something different from what he really, really privately meant?

The idea of arriving at truth through private intending brings us to the very brink of Humpty Dumptism: "When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."   A disciple of Humpty Dumpty can make “7 + 5 = 11” true so long as by “11” he intends “12”, but if he is teaching addition, his pupils may suffer some inconvenience.

Our intuitions in the Clinton-type deceptive “truth” cases may be led a little astray by influence from cases where the audience is misled, but there is no intent to deceive. A teen asked by an older brother whether he has “had sexual relations” with his girlfriend, might naively think that “sexual relations” meant the same thing as “sexual intercourse” as defined by the rudimentary sex education module of his health course at school. (His teacher was shy about going into details.) So thinking, and therefore with a spotless conscience, the teen answers “No,” despite those study breaks he and his girlfriend take.

We would say here that the teen meant nothing false. The difference from the Clinton case, however, is that what the teen intended to communicate was true. He was unaware of the way his brother would understand what he said. I am not denying that truthful statements often mislead because of vagueness or ambiguity. What I deny is that there are (many) deceptive truths of this sort. Where there is only one sense of a phrase of which the speaker is aware and under which he expects and intends his audience to understand what he is saying, that sense has a strong enough relation to his public utterance to use it in evaluating the truth or falsity of the statement.  This is so even if we would be happy to expand the description of the case from “What the teen said was true,” to “What the teen meant to say was true, but what his brother understood was false.”  The key is that in intending to communicate it, the teen meant to say the truth in a way that Clinton did not.

Our intuitions may also be led astray in cases where the speaker, unlike our naïve teen, is aware that there are at least two senses of a key word or phrase, intends to convey one, but can make a good argument that a different sense is somehow preferred, canonical, or strict. She makes her mental reservation to the effect that it is this latter sense that she “really means” while what she intends and expects her audience to understand is another sense – one that will mislead them.

Now there are some instances in which canonical meanings really do govern whether a statement is true or false. The Clinton deposition case is one. It was a rule of the deposition, blessed by the judge, that the first clause of the plaintiff’s definition of “sexual relations” was to be the meaning of that phrase for the deposition.  The definition was shown to Clinton immediately before he made his response. Where there is explicit stipulation, not rejected by the audience, it controls. To see whether any sort of canonical meanings determine truth or falsehood in other settings, however, requires a look at the specifics of the communication.

A neighbor is trying to organize a neighborhood watch, a project for which I have but tepid enthusiasm fearing it will compromise privacy or even degenerate into vigilantism. She asks me, “has your house ever been robbed?”  As a former professor of criminal law, I know that what she really wants to know is whether I have been victimized by a larcenous burglary of my house.  I tell her that my house “has never been robbed,” thinking to myself that no one has stolen anything from my house using force or the threat of force. I picture to myself a man with a gun standing outside my house and threatening to shoot it full of holes if it doesn’t throw up its sashes and hand over its granite counter top. On the other side of my mind is a clear memory of the time that a thief came in through a window and stole some cash and credit cards from a billfold left downstairs.

I take a little pride in reflecting that, if the neighborhood watch woman ever hears about that incident and confronts me with my duplicity, I will be able to defend myself by giving her a pious little lecture about the correct meaning of legal terms.  Smug as I might be, I will, nonetheless, have lied. It was no deceptive truth, but a deceptive falsehood. Knowing she had no knowledge of the legal meaning of “robbery,” what I communicated to her was false. (I will shortly, however, consider a closely similar case that may well be a member of a small set of exceptions to the proposition that there are no deceptive truths of ambiguity or vagueness.)

Kant, himself, was, I think, tempted slightly off course by a “literal sense” case. 

"Along with lying we may include: (a) aequivocatio moralis, i.e. moral ambiguity, insofar as it is deliberately employed to deceive the other; for example, a Mennonite swore an oath that he had handed over the money he owed to his creditor, and in a literal sense he could swear this, for he had hidden that very sum in a walking stick and asked his adversary to hold it."  (Lectures on Ethics)

I understand Kant here to intend that this was not a lie, albeit an “along with,” i.e. a sibling. I think he was in this too generous to the Mennonite, even though he was obviously not being very generous to Mennonites as victims of 18^th century German stereotyping.

 

Let us try to elevate into a theory the intuition that I spoke truthfully about crime at my house and that the Mennonite “could swear” as he did. The idea here is that a statement should be taken in the preferred sense (criminal law sense, literal sense) when evaluating its truth, even when there was no mutually accepted stipulation in play, the preferred sense was neither the sense in which the speaker expected the audience to understood the statement nor the way it was understood, and the speaker phrased and delivered his utterance to try to keep it from being so understood.  If there were language gods cognizant of and metaphysically enforcing best linguistic usage, my robbery statement and the Mennonite’s oath might be true on their language Olympus, but it is hard to follow this theory to the conclusion that they were true when and where they were spoken.

If we were under the spell of this theory, we might picture a spectrum ranging from Humpty-Dumptism at bottom to canonical meaning at the top.  The deceiver can make no claims for truth at the bottom, but his deceptive statement gets better and better marks as its truth making sense gets closer and closer to the canonical top.

Something is correct about this spectrum picture. There are differences as we work our way up from Humpty Dumpty to canonical meaning. We may want to place more blame on the audience for missing a sense of better authority or wider acceptance. We also feel more admiration, if grudging admiration, for the speaker who can deceive by getting his audience to miss a more nearly common or authoritative sense. These differences, however, do not affect the falsity of what the speaker told his audience, a matter not decided in language heaven where the canonical prevails, but in the everyday world of what the speaker intended his audience to understand and what they did understand.

The Mennonite was depending upon anyone who heard or read his oath understanding “handed over the money”  to mean something close to the standard case in which the money is put, for all to see, into the creditor’s hand, coin or bill to flesh, with the creditor having full and knowing control over it. His mentally reserved sense of “x was handed over,” had to be broad enough to embrace “x was temporarily in the physical control of the receiver without his having any way of knowing it.”

Kant, apparently, was convinced that this very broad interpretation of “handed over” is a “literal sense,” but that depends upon a word for word form of literalism, blind to the way meanings attach to phrases as well as to the effects of context. There is such a sense of “literal,” but it tends to be a pejorative sense, not one with good claims to canonicity, and, as argued above, even the truly canonical only becomes the correct standard for evaluating the truth of a statement in special circumstances.

The Mennonite presumably believed that this was not a false swearing before God, who could look into his heart. We, however, might think such a God morally obtuse or at least gullible. But let us pass that. If he thought he could not be punished for perjury on this swearing if all the facts became known, I can only say that I would far rather have the prosecution side than the defense. (I never, in fact, prosecuted or defended a perjury action, although I think I discussed bringing perjury counts as a prosecutor, analyzed threatened perjury charges against clients as a defense counsel, and spent a lot of energy trying to prevent witnesses from straying towards perjury as a prosecutor, a criminal defense lawyer, and a civil litigator.)

My central thesis in all the above is that in evaluating whether someone is being truthful or is lying we should look to the actual act of communication – what the speaker intended the audience to understand and what the audience did understand.  So focused we will judge few if any deceptions relying upon ambiguity or vagueness to be truthful. Of course, we are free to evaluate truth or truthfulness by focusing on whatever sense we like of the words of a statement. Special purposes may promote to salience senses of words other than those the speaker intended to communicate.  For this reason, we may want to recognize deceptive truths of ambiguity or vagueness in some exceptional circumstances.   

                                    3. Possible Exceptions

One small class of exceptions or, at least, near exceptions, look to the future and involve vindication or correction. Suppose that my neighbor, rightly suspicious, prepared an affidavit requiring me to state under penalties of perjury that “my house has never been robbed during the period of my ownership.”  In the real world I would decline the request, but in a philosophical hypothetical in which I am a little more combative, I might sign it. I would be unafraid of the penalties of perjury, knowing that in the unlikely event my affidavit were shown to a prosecutor, no case would be brought because of the technical legal truth of my statement.

 

I actually think this case is best understood, not as an exception, a genuine deceptive truth, but as a two audience, two statement case. I intend to deceive my neighbor, and as to her my affidavit is a lie. The affidavit as a legal document, however, has also a second audience, players in the justice system. The same signed words on paper that were a lie in the hands of the neighbor are a non-deceptive truth in the hands of the prosecutor.  Sworn statements are often prepared by lawyers, and decisions to prosecute for perjury are made by lawyers steeped in the criminal law. The conventions of affidavit evaluation incorporate the legal argot. (Here is the difference from the Mennonite’s walking stick case. “handed over” is not part of the technical lexicon of the law, and the sense that made the oath true is not one that would jump to the mind of lawyers or judges.)

Vindication can come more immediately and with the audience actually before the speaker.  I tell my criminal law class that my house has never been robbed. I then recount the burglary of and theft from my house, and ask the class how what I have told them is consistent. Because this occurs early in the first semester, with no writing assignments yet made, some students will have read ahead and will have the answer, even if they were originally sucked in by my robbery statement.  I could insist that this too is a two audience case, my naïve class of 10:20 AM and my enlightened class of 10:24.  I see no harm, however, in admitting that this is a case in which I say something true and thereby succeed in deceiving, temporarily, by exploiting an ambiguity.
 

Here the canonical status of the sense of “robbery” that made my statement true was important to my pedagogical purpose, but, unlike the affidavit case, not the key to the truth of my statement as I made it to the class. What made the true-making sense relevant for analysis of truth or falsity was temporal. I was about to tell the class the whole story, including explanation of the technical vocabulary of robbery, burglary, and larceny.  I intended them to hear my statement with their lay ears but also intended the technical sense to become the dominant understanding of what they had just heard me say – as the definitions unfolded in their developing lawyerly brains.

Preferred, strict, or canonical meaning is not essential to this class of cases, as is illustrated by what has become a standard joke in situation comedies. It is pure Humpty-Dumptism. Here is an example from an episode of Scrubs:

Dr. Cox: And this... abomination is the reason we can't afford a new computer?

Dr. Kelso: Well, that, and a little medical boondoggle I have to go to in Cleveland. And by "medical boondoggle" I mean "golf weekend." And by "Cleveland" I mean "Hawaii." .... Anyway, I have to go catch my bus to the airport. And by "bus" I mean "helicopter." 

I am willing to call these deceptive truths of (Humpty-Dumpty) ambiguity, because the sense that makes them true is shared with the audience while the words are still hanging in the air.  Were I stubbornly to defend my general proposition against even this exception, I would make the two audience move again. 

The stipulation case, as in the Clinton deposition, is a quasi-exception. What he there exploited was the plaintiff’s definition and the fact that plaintiff’s lawyers were not alert enough to notice the loophole that they had created. We could characterize this as turning on the failure of plaintiff’s lawyers to recognize an ambiguity between what they thought their definition set out and what it really did set out.  It can also be characterized as a seductive inference case, on which more next.

                                       4.Genuine Deceptive Truths

So with these possible exceptions or near exceptions, I stand by my claim that exploitation of ambiguity or vagueness to try to deceive while telling the truth may succeed in deceiving, but will leave the speaker a liar.  Yet I do think that there are absolutely clear and uncontroversial cases of deceptive truth. They exploit, not ambiguity or vagueness, but seductive inference.

The visiting expert birder: “I caught a fleeting glimpse of a large white bird. Did you see it?” The deceiver responds, “The only bird I’ve seen this morning was a crow.”  What the deceiver saw and recognized was Hubert the neighborhood's resident albino crow. He maliciously expects the birder to draw an inference from the very good generalization that crows are black to the conclusion that his respondent had not seen the mystery bird. The seductiveness of this inference is heightened by the particular context and the phrasing of the deceiver’s response. In normal conversation, this would be understood to be a colorfully amplified denial of having seen a large white bird. That makes the deception more effective, and, for those of us in the know, the deceptive intent of the speaker all the clearer.

Opportunities to deceive through seductive inference are not quite as ubiquitous as those exploiting ambiguity or vagueness, but they are pretty common. “My uncle brought in a muskellunge using his hand net.” This statement, standing alone, might cause you to conclude that my uncle had more fishing prowess than he, in fact, possessed. He was a sometimes fisherman, to be sure, but not a muskie-level fisherman. The fish of this anecdote was lying near death from an unfortunate encounter with a propeller when my uncle spotted it and scooped it up by net from the lake surface.  The crow and muskie cases are instances of what is often called deception by omission, and in most cases of omission what is omitted is precisely what would undermine the seductiveness of the inference for the audience.

 

Election campaigns sometimes cite legislative votes by their opponents that suggest, in isolation, the very opposite of the opponent’s policy positions.  Complexity and gamesmanship in legislation: rival bills, friendly and unfriendly amendments, riders, and poison pills; all these provide ample materials for sound bite deception of the electorate.

 

The Supreme Court held in Bronston v. United States, 409 U.S. 352, 352-53 (1973), that a deceptive truth of this conversationally seductive sort did not constitute perjury. (This is called the “literal truth defense,” though it would not go so far as to protect the Mennonite against a perjury charge. Bronston’s sworn statement was unequivocally true. It was, like the white crow case, deceptive because of the question to which Bronston was supposed to be responding.)

                    5. Moral Theory and Deceptive Truth – Kant

Having established that there are some cases of unquestionably truthful deception, as well as quite a few cases of lying that have wrongly been put in that category, I want now to turn to the moral evaluation of truthful deception.  For these purposes I am going to assume that my argument in sections 1-3 is all wrong and that Kant and Sandel, are right about the  truth of the “don’t know” to the murderer,  the “sexual relations” to the in the televised statement, and the “handed over” oath. That is, I will assume that these, like the crow and muskie cases, are all deceptive truths.

Sandel’s chief point was that there is a significant moral difference between the “don’t know where” to the murderer and Clinton’s sexual relations, on the one hand, and outright lying, on the other.  The motive of the latter is to deceive by lying and of the former is to deceive by telling the truth. The idea is that doing the work of deception through truth telling honors the moral law and follows the categorical imperative. (20:12-21:15). To fill in Sandel’s account a little, these statements satisfy the first formulation of the categorical imperative with respect to their truth.

The second formulation abjures us not to treat our audience solely as a means, and although these statements may use the hearer partially as a means, by deceiving him, perhaps they do not treat him solely as a means in that they tell him the truth.

Sandel could be making one of three different claims about Kant on deceptive truths. The most radical is that deceptive truths for Kant are always morally permissible. The second is that deceptive truths are morally prohibited, but are still morally superior to lying. The third is that deceptive truths are sometimes morally permitted.

When I first watched the video of Sandel’s lecture, I thought that he was making the radical claim. He welcomed his student’s “don’t know where” suggestion for the murderer case in a way that suggested that Sandel thought this was morally acceptable, and intuitively it does seem acceptable -- as a way of friend-saving. (If we are interpreting Kant, however, we have to be cautious in relying on such intuitions, remembering that it is flatly prohibited to lie to the murderer.)  Without endorsing Clinton’s exoneration in so many words, Sandel also seemed reasonably comfortable in acting as Kant’s agent in letting the President off the hook. 

On a second time through the lecture, however, I was struck by Sandel’s repeated use of such language as “there is something morally at stake in the distinction” between lying and deceptive truth.  (17:55) There could be a morally significant distinction without all deceptive truth telling being morally permissible.  The second two interpretations of Sandel on Kant set out such distinctions. 

 

I was concerned, however, that these lesser distinctions between lying and deceptive truthfulness were uncongenial to the general spirit of Kant’s moral philosophy. At least with respect to the perfect duties, Kant’s view of the moral law seems to be, well, categorical. An action is either in or it is out, morally permissible, or morally prohibited, end of story. The absolute prohibitions of all lying and all suicide bear this out. In the end, I suspect that the second interpretation, on which deceptive lying is morally impermissible but not so bad, is in irremediable conflict with Kant’s system.  Of the third interpretation, however, there is a good deal more that can be said, and some support from the Kant corpus.

To test the most radical interpretation of Sandel on Kant, we will want, first, to ask whether it would be a contradiction to the institution of communicating information that all rational agents, as a law of nature, deceive their audience when that is in the agent’s interest and can be done without lying. Perhaps this law of nature would not collapse the practice of information exchange with quite the conceptual immediacy that the universalization of lying promises collapses the practice of promising, but only because we are not quite sure how frequently it is possible to deceive with the truth. If, however, both the “don’t know” to the murderer and Clinton’s “no sexual relations,” count as truths, as Sandel thinks, then we can speculate that whenever one is in a tight spot, it will be possible to conjure up some deceptive truth.  If this is so, then deceptive truth telling, in full generality, is self-undermining in the same way that lying promises are, and so fails the first formulation of the categorical imperative.

Most instances of deception are also specifically designed to manipulate the audience in some way. By using the audience as a means, they fall afoul of the second formulation. That you did not use a yet worse means to manipulate hardly seems enough to get past the second formulation.

As for the third formulation, and being “a legislating member in the universal kingdom of ends,” surely I am not permitted the option of deceiving my fellow legislators in every case in which I can do so without lying.

In short, the proposition that Kant would find that every instance of deceptive truth follows the moral law is wildly implausible.

The second, and much weaker, interpretation of Sandel’s claim is that it is not morally as bad to deceive by telling a truth as by telling a falsehood. At least the truth telling, taken in isolation, follows the moral law, and so there is an honoring of the moral law in one respect, even if your deception taken as whole violates that law. It is not crazy that a prohibited action that has a non-prohibited component is in some moral respect superior to an action every component of which is prohibited. 

Isn’t it better to murder your victim with a fast acting poison that knocks the victim unconscious right off rather than with a poison that causes hours of suffering? Maybe it is even better to perpetrate a polite rather than a verbally abusive armed robbery.

If your action is morally prohibited, however, I think that really is the end of the story for Kant. Actions that violate the moral law do not get partial credit because they have components that would be morally permissible if they could be abstracted out of the whole action. There are no consolation prizes or runners up for Kant. At least that is how it has always seemed to me when it came to violations of the moral law. Recall that if 99% of your motivation was obligation, but an essential 1% was self-interest, you have not acted with a good will. “Does an intending poisoner have an obligation to use a fast acting poison?” is a question that does not arise for Kant. Perhaps it should, but it doesn’t, or so my study of Kant, such as it is, leads me to think.

The third interpretation of Sandel on Kant is the most interesting. It is that deceptive truth telling is sometimes morally permissible and sometimes not.  This would clearly satisfy Sandal’s “something morally at stake” in the distinction between deceptive truth and outright lying. There is some evidence that Kant may well have held such a view about deceptive truth, a view that can be supported by an attractive understanding of the way the machinery of Kantian ethics should be applied to moral issues stated with particularity.

Here is what Kant says in presenting the “handed over” oath case:  

"A moral casuistic would be very useful, and it would be an undertaking much to the sharpening of our judgment, if the limits were defined, as to how far we may be authorized to conceal the truth without detriment to morality." 

(Or at least this is roughly what Kant said as what we have are only student transcriptions of lectures. But we have reason to think the students were pretty accurate.) By “casuistic” Kant meant application of theory to particular cases.

Examination of cases could never overthrow correct theory, which was established by reason alone. (In this respect it is different from Rawls’s method of reflective equilibrium, on which theory can cause changes in our intuition about cases, but intuition about cases can also lead us to modify theory.) Kantian casuistry would be about making the theory practical for everyday purposes – the fine points of applying the categorical imperative to particular cases and classes of cases. This is what Kant must have meant by “judgment sharpening.”

It is clear enough that Kant would adjudge the Mennonite’s active, intentionally deceptive, concealment of the truth to be morally prohibited when theory was applied to it with any sharpness of judgment at all.  Looking to the first formulation of the categorical imperative, could we, without  a contradiction to the practice,  universalize the maxim that, whenever one is financially embarrassed, one may swear to have handed over a loan repayment to a creditor even though the creditor did not really get possession of the money?  Inasmuch as swearing in the hypothesized circumstance of such a universalized maxim would then be of no help in determining whether a loan had or had not been paid, this maxim for debtor oath giving would be self-defeating. On Kant’s second formulation of the categorical imperative, it is pretty clear that the debtor was using those for whom the oath was intended as means only. Again, it comes up strictly morally prohibited.

We can project, and hope, that Kant would reach a different conclusion in other kinds of concealment of truth cases, for example slamming the door without answering the murderer or feigning Manx monoglotism.

So far as I know, Kant never much discussed what happens when obligations come into conflict. By talking about casuistry as a judgment sharpening exercise, however, isn’t Kant telling us to look to the details of the particular cases?  In determining “how far” we can go in concealing through deception, we need to examine an instance of deception in action and see whether, for example, it involves truth telling in a way that takes the moral sting out of the deception.

The repayment oath fails that test as would my house robbery answer to my neighbor. My house robbery statement to my law class, I think, would not. There would be no first formulation contradiction in a temporary deception for pedagogical purposes, and, if I was using my class momentarily perhaps as a means, I was treating them in the larger picture as an end.

It seems to me, as it has to many, that Kant should have looked to the particulars to sharpen his judgment about cases where the obligation to tell the truth runs headlong into other important obligations – the obligation to preserve an innocent life from murder, for example. His universal prohibition of all lying seems to conflict with his recognition of a role for casuistry.

This, of course, is a substantial problem for this otherwise attractive interpretation of Kant. He was adamant and unambiguous about the impermissibility of lying. I am not the first, however, to wonder if this wasn’t simply a mistake on Kant’s part. Shouldn’t he have been willing to sharpen his judgment about the correct way to apply the categorical imperative to lying by looking to more particular instances of lying and the other morally relevant features they might have? His argument that it is flatly morally prohibited to lie to the murderer at the door has rarely gotten high marks for either clarity or soundness.

        6. Deceptive Truth and Moral Theory – a Little More Broadly

Still keeping Kant in mind, I want now to branch out a little in moral theory options. 

Consequentialists, who have always been sure that Kant was wrong in his universal condemnation of lying, have their own straightforward test that applies to lying, deceptive truth telling, and everything else for that matter. Simply look to the consequences. If telling a deceptive truth appears to have better long run consequences than any other alternative you can reasonably come up with, then tell the deceptive truth. (For the technical reasons I characterize consequentialism in this way, see my Philosophy Now paper, “The Impossibility of Maximizing Good Consequences.”)

What consequentialism may not be able completely to bring within its account are the various moral relations that speakers have to audiences, and to persons affected by the audience, more and richer in some cases than in others. These relations may well militate against deception even when consequences are all factored out. 

The differences of those relations in different cases will give rise to obligations not to deceive various in strength and varying across subject matters. Consider an oil company executive who labors to deceive the audience of her public speech into thinking that there is no scientific consensus on climate change. Compare that to a science teacher who seeks to perpetrate the same deception on his high school class. Some of what you compare, of course, will be differences in probable consequences, but even if consequences are the same, violation of a closer trust relationship is morally worse.

Similarly, deceiving on a matter the audience considers important is worse than deceiving on something the audience regards as trifling. This is so even in those rare cases in which circumstances conspire so that the consequences of the deception on an important matter turn out to be insignificant.

It also somewhat plausible that there is a moral difference depending upon how far the belief engendered by deception is from what the speaker believed to be true. This will, again, often lead to important differences in consequences, but even if it doesn’t in a particular case, to deceive by a lot seems worse than to deceive by a little. 

I think a Kantian might be able to forge a pretty good argument that Kantian casuistry, when taken well beyond the few examples Kant gives us, will successfully account for all the morally relevant relationships that will be involved in a difficult real world moral decision. Whether it can properly address all morally relevant matters of consequence is much more doubtful. Even though not the only factor, consequences are important in evaluating the morality of actions.  Yes, Kantian casuistry may be able to bring in some considerations of a consequential flavor in application of the moral law to particulars of the case.  Yet, Kant clearly wanted to turn moral reasoning away from consequences. Certainly he gives clear warnings that much in the way of consequence weighing is beneath moral contempt. The quasi-consequences that can make their way into a Kantian casuistry are at least not obviously sufficient to give consequences the full weight they deserve.

So the evaluation of the moral status of intentional deception, although often easy in ordinary life circumstances, can involve many factors of varying weight in the hard cases. I have doubts that either Kant or consequentialism can do justice to the task.

                            7. Deceptive Truth Versus Lying

Deeper exploration will show, I think, that only rarely will a deceptive truth take much moral precedence over a deceptive falsehood (contrary to our first and second interpretations of Sandel on Kant). “I didn’t see any large white bird this morning” is only slightly worse than “the only bird I’ve seen this morning is a crow.” The breach of the relation of trust is the same, and the consequences for the expert birder will most likely be the same. A difference may arise if the albino crow possibility ever occurs to the birder and she then thinks back to the specifics of the way the speaker answered the question and so is encouraged, with an irritated frown, to explore that possibility more energetically.

We also get a different case, with a difference that may well shift the impermissible to permissible, if there is a history of practical jokes between the birder and her respondent. We then have an entirely reconfigured relation of trust. For its value as a joke, the truth of the deceptive statement is as important as is the cleverness of the deception.  In addition to a difference in motivation, there is, again, an element of future vindication in this sort of practical joke that can turn what would otherwise be just mean spirited into a jolly gotcha.  I will leave it as an exercise whether this sort of moral difference can be entirely accounted for either by consequentialism or by Kantian casuistry.

One thing I want to deny outright is that there is, in the normal case, the slightest moral difference between deceiving someone I really ought not deceive through a lie and through an intentionally and successfully deceptive truth.  The evil of a deceptive truth here is the same as that of a deceptive untruth. It is the wrongness of deception. That the deceiver managed to be truthful in deceiving everyone may be a testament to his or her cleverness, but, aside from such special cases as practical jokes, truth is irrelevant if it does not lessen the probability of deception, its permanence, the confidence of the audience in what they are deceived into believing, or the consequences of the deception.

To return to an earlier theme, you may have the following question. Even if it is right that the core evil or the greater part of the evil in lying deception is the deception, still isn’t a truthful deception at least a little better than a lying deception?  Truth is better than falsity, and so honoring truth, even in the midst of a transaction morally reprehensible for other reasons, has to be at least a little bit good or make the whole slightly less bad.

I can feel a faint tug of intuition in this direction, but I think it is due to the (fortunately distant) siren call of an insupportable purity ethic. Speaking a known untruth is a stain on my moral soul quite independent of my relation to my audience and consequences?  I don’t think so. The moral pivot here is the deceived audience. The value of truth over falsehood disappears with the audience connection. If you are alone, please say, out loud, “5 + 7 = 12” and then “5 + 7 = 11.”   Was there any moral difference?

                                            8. Conclusion

There are few, if any, cases of deceptive truthfulness exploiting ambiguity or vagueness.  Those there may be evaluate truth by looking, not to the immediate communication, but to some other context, often future disambiguation, precisification, correction or vindication. To redound to the truthfulness of the speaker, the alternative context must be made salient by some feature of the actual context, e.g. immediate transition from one to the other (“by “Cleveland I mean Hawaii”") or by some rule or convention known to the speaker (the legal lexicon for an affidavit.)

The Kantian absolute prohibition of all lying would, therefore, make Sandel wrong if he were claiming that Kant would find morally permissible “don’t know where” to the murderer at the door and the televised “I did not have sexual relations with that woman.” 

There are, however, uncontroversial cases of deceptive truth turning on seductive inference. So it is worthwhile seeing what Kant might and we should say about the moral permissibility of deceiving while telling the truth.  Kantian casuistry has the potential, I think, to rule some instances of deceptive truth permissible and others prohibited. This would partially vindicate the theoretical point that Sandel intended to make in his lecture. Kantian casuistry would apply the categorical imperative after using judgment to tease out the morally relevant features of the particular case. This procedure might be extended so far as to reach the conclusion that some lies are morally permissible, Kant to the contrary notwithstanding. 

When we are evaluating the moral permissibility of a deceptive truth, we should look to consequences (in a way that even an enriched Kantian casuistry probably cannot) and to the morally relevant relations between the speaker and the audience (in a way that even sophisticated consequentialism probably cannot).  Only in few and special circumstances will a truth used to deceive and completely successful in its deception be morally superior to a falsehood used to the same purpose and effect. 

                    9. Addendum on the Clinton Impeachment

Clinton’s “sexual relations” statement in the Paula Jones deposition was covered by charge (2) of Article II of the Articles of Impeachment brought against Clinton by the House Judiciary Committee, all Democrats and one Republican voting nay. It was also indirectly implicated in Article I, perjury before the grand jury, charge (2). Clinton was interrogated in the grand jury about his deposition responses, among many other things. Article II came out of the Committee with a straight party line vote.

Clinton clearly lied in his deposition in answering the question whether he and Lewinsky had ever been alone in the Oval Office. His response was “I don’t remember” followed by some true, if not so responsive, remarks. In light of what went on when they were alone, it is unbelievable that he didn’t remember.  I concede that in taking depositions myself I have heard hundreds of “I don’t remember”s that I was quite sure were false. Some lawyers  believe that this particular lie should be given a free pass, and very frequently judges seem to agree. The practice, however, is a clear corruption of law. In any event, we do have an intentional falsehood in the deposition. Whether it is material to the Paula Jones case, and thus constitutes perjury, is a separate question, although I tend to think that within the materiality standard of discovery, it was material and so perjurious.

 

Clinton was not impeached on Article II, the Paula Jones deposition perjury charges, by a vote in the House of 229-205. He was impeached on Article I, the grand jury charges by a vote of 228-206. (He was also impeached on Article III, obstruction of justice in the Jones case and grand jury investigation, mostly witness tampering. He was not impeached on Article IV, abuse of power in dealings with the House on impeachment related matters.)

He was not convicted in the Senate on either of the two remaining articles.  Article I, more closely connected with the alleged perjuries, was rejected 55-45. The obstruction of justice charge failed 50-50, 67 votes being required for conviction.

Some of the senators who voted against conviction stated their belief that Clinton had committed perjury. A perjury is unquestionably a crime. Is it a “high crime”?   “High crimes and misdemeanors” is a term of legal art, more particularly of legal art of the English constitutional law tradition. (For more on constitutional interpretation in general, and terms of art in particular, see my post “A Textualist Approach to Legal Interpretation, 6/17/2014.) It is reasonably clear that the term of art was restricted in its application to misdeeds in official capacity.  Accepting a bribe by an official is a high crime and misdemeanor; the official’s shooting her husband is not.  Perjury is arguably in a middle category. Perjury can be committed by anyone who is put under oath. In that respect it is like murder.  However, it is itself a matter of an obligation intimately tied to the mechanisms of the administration of state justice. Officials, at least officials with any relation to the justice system, arguably have obligations to uphold the integrity of oath taking that go beyond those of ordinary citizens.

   

The entire constitutional phrase is “Treason, Bribery, and other high Crimes and Misdemeanors.” Treason can be committed by non-officials. Bribe giving can as well, and I suspect that “bribery” included giving as well as taking in the eighteenth century. However, I also suspect that bribery as an impeachable offense would have been read here as “bribe taking” and that “treason” was read with understanding of the particular seriousness of official treason. That these were given as the exemplar cases of “high crimes and misdemeanors” suggests that the class is a matter of serious offenses against the state of the sort that officials are either uniquely well placed to commit or at least very well placed.

That the offense must be one against the state is evidenced by the fact that the original text was “Treason, Bribery, and other high Crimes and Misdemeanors against the United States.”  “against the United States” was taken out by the Committee on Style, the charge of which was to improve style without changing content.  I cite this, not to argue that it was the intent of the drafters to limit impeachment to offenses against the United States. I don’t think drafter intent, as such, counts for anything. (If this issue is of interest, you really should see the 6/17 post.) The delegates, and in particular the members of the Committee on Style, were, however, fluent speakers of late 18^th century American English and generally familiar with legal terms of art. That they thought “against the United States” could be removed as a matter of style is pretty good evidence of the meaning, at that time, of “high Crimes and Misdemeanors.”

So, although I would want to do more research before voting, I think that I would have voted against impeachment in the House and conviction in the Senate for Clinton’s perjury. “I never had sexual relations” in the Paula Jones deposition was not false (so far as the evidence shows) because of the defective definition governing the deposition. It was deceptive in the same way as his nearly identical televised lie, but the deposition statement was not perjury.  “I don’t remember,” was perjury. But that crime did not rise to the level of a serious office-related crime against the United States.  

For posts on more nearly current impeachment issues, see:

Impeachment for Acts Prior to Taking Office?

https://lawrencecrocker.blogspot.com/2017/04/impeachment-for-acts-prior-to-taking.html

Was Trump’s “Russia, if you are listening, . . . “ Criminal? Impeachable?

https://lawrencecrocker.blogspot.com/2018/08/was-trumps-russia-if-you-are-listening.html

Was Trump’s criticism of Sessions for permitting indictments of Republican House members a high crime or misdemeanor?

https://lawrencecrocker.blogspot.com/2018/09/was-trumps-criticism-of-sessions-for.htm

Should President Pence be Impeached with Vice President Trump in the Wings?

https://lawrencecrocker.blogspot.com/2018/09/should-president-pence-be-impeached.html