The George Santos Defense

By Kevin D. Williamson

Monday, January 02, 2023

 

George Santos would like you to know that he hasn’t done anything illegal.

 

He would like you to believe that, anyway.

 

I am not sure that it is the case that Santos, the Long Island representative-elect who seems to have lied about almost every aspect of his résumé and biography—from his education to his employment history to his being the grandson of Holocaust refugees—has not broken the law. It is the case that, as of this writing, he has not been charged with a crime, and I think it is unlikely that he will be. But consider this from the good people over at Cornell Law, who offer these criteria for fraudulent representation, which in this case falls under contract law rather than criminal law:

 

1.       a representation was made

 

2.       the representation was false 

 

3.       that when made, the defendant knew that the representation was false or that the defendant made the statement recklessly without knowledge of its truth

 

4.       that the fraudulent misrepresentation was made with the intention that the plaintiff rely on it

 

5.       that the plaintiff did rely on the fraudulent misrepresentation

 

6.       that the plaintiff suffered harm as a result of the fraudulent misrepresentation

 

In sum this describes the Santos campaign pretty fully.

 

Maybe there’s an argument that the Republican Party, at least, can’t suffer harm in this case for the same reason that a serial killer has a hard time winning a defamation case: Republicans don’t have a good name to damage.

 

“I’m a habitual liar, but I have not been convicted of any crime”—how much of a defense is that, really?

 

As Jonah Goldberg and I discussed on a recent episode of The Remnant podcast, the infestation of our political life by lawyers (it is a very ancient infestation) has produced some undesirable outcomes, one of which is the elevation of legality over morality. It very well may be the case that nothing Rep.-elect Santos did was illegal—but, so what? Is there nothing wrong or evil in this world that is not legally forbidden? Five seconds of thought would be enough to reject that proposition.

 

“Has not been convicted of felony fraud” is a pretty low bar to clear.

 

We go through this from time to time, dramatically in cases of presidential impeachment. (For the longest time, there had been only the one, but now there have been four, half of them involving the same guy.) A president does something awful and embarrassing, the House reacts—provided it is controlled by the other party—and then a bunch of law-school graduates go on the talk shows and dissect, along predictably partisan lines, what constitutes an ”impeachable offense” or “high crimes and misdemeanors.” As my friend Andrew C. McCarthy often observes over at National Review, that ends up being a political question rather than a legal one: An impeachable offense is whatever the House of Representatives decides it is, and if some American objects to his representative’s take on that issue, then he has recourse at the ballot box.

 

I am not a constitutional scholar, and I tire quickly of talk about who is a textualist or an originalist or whatnot. For me, the question is: Why do we write the laws down? If believing that the law says what the law actually says makes you a textualist, then I suppose I am that, and if believing that history and precedent can shed some light on good-faith disputes about the interpretation of a given bit of legal language makes you an originalist, then I suppose I am that, too. But what I really am is somebody who believes that we write our laws down for a reason, because the alternative to the rule of law—which includes a judiciary engaged in a disinterested good-faith pursuit of the meaning of the law rather than the search for a pretext to impose judges’ own personal preferences—is anarcho-tyranny. (Yes, kids, I know Sam Francis, who coined that term, ended his days as a racist crank—it is a useful term and a useful concept.) Having fixed rules that we can all consult beforehand is a supremely useful innovation in human social life, and we should be grateful for it.

 

That being written, the idea that law should be the first or last arbiter of decent or acceptable behavior is insane. “Do whatever you like, as long as it is within the letter of the law” is a terrible, destructive, and at times positively evil credo. A morally and intellectually mature person—or even a child on his way toward such maturity—runs into a great many ethical guardrails and moral bar ditches and “Wrong Way” signs and other allegorical roadside features before he crashes into the concrete embankment of the law. The playing field of life is expansive, and there is more to what happens on it than the question of whether one is, at any given moment, out of bounds.

 

There isn’t any serious question about whether the Hells Angels motorcycle club is a criminal enterprise, but I’d be willing to bet that the share of elected Republicans who are active grifters and hoaxers is larger than the share of Hells Angels who are active criminals. So what does that make George Santos’ GOP? 

 

Words About Words

 

Funny word, “unprecedented.” In my writing about George Santos, I have been unsparing, and—much to the predictable irritation of the usual partisan apologists for Republican moral grotesquery—I haven’t felt any particular need to rehearse the lies of other politicians. But Slate’s description of Santos’ shenanigans as “unprecedented” did rankle. The fact that other politicians have told similar lies doesn’t make Santos’ lies any better or any worse—they are precisely what they are and nothing else—but one does have to be working with some pretty massive moral blinders to describe Santos’ lies as “unprecedented” while Joe Biden is, incredibly enough, president of these United States of America. Biden, like Santos, lied about his academic background. Santos made up some Holocaust-refugee grandparents in order to cynically exploit our natural sympathy for his own personal gain; Joe Biden made up a story about his wife and infant daughter being killed by a drunk driver in order to cynically exploit our natural sympathy for his own personal gain. (Biden’s wife and daughter did die in a car wreck; there never was any indication that the driver in question was drunk—in fact, he probably wasn’t even at fault, with investigators finding that Mrs. Biden most likely had accidentally swerved into oncoming traffic.) Biden didn’t just make up details about his political career—he boosted somebody else’s life story, famously plagiarizing from a British politician.

 

“Unprecedented” is not a difficult word to sort out: It means “without precedent.” Sadly, that is not the case.