There is an apparent consensus that President Obama was making an incorrect statement when he said (many, many times), one version or another of the following: “If you like your healthcare plan, you can keep it.”  Reportedly, he made such a statement on more than 3 dozen occasions – as early as June 2009, and as recently as September 26 of this year.  He spoke in every imaginable forum – the White House web page, numerous public speeches, in person or on TV, etc., and he spoke before the Affordable Care Act was passed, before the 2010 congressional elections, and before the 2012 Presidential elections – most memorably, in the first Presidential debate on October 3, 2012.

Most of the critical discussions of the President’s statements have focused upon the question of whether the President lied.  For his part, the President has issued various attempts at explaining the statements, and most have sounded as though he considered them to be misstatements or considered himself to have misspoken – interesting terms that seem to have gained a lot of currency in recent years.   So, let’s have a go at clearing up the semantics.

“Misstatement” means, simply, an incorrect statement – in other words, intent is not relevant.  “Misspeak” means, to say something that is not what you meant to say – a definition in which intent is critical.  A “lie” is a misstatement that was intentional – a statement that the speaker knew was incorrect.  The most interesting recent discussions regarding the meaning of “lie,” were, the arguments concerning the infamous allegations that “Bush lied” in publicly building his case that the US should invade Iraq because Hussein possessed “WMDs.” The discussions were interesting because it eventually appeared, with hindsight, that the President, like most of his top advisers and foreign intelligence services – and most of the Congressional leadership (both Democrats and Republicans) – believed that Hussein did in fact possess WMDs.  In other words, the President made statements that may have been incorrect (misstatements) but he did not misspeak and he did not lie.

On the other hand, it now appears that President Obama, in giving his assurances that everyone who had a healthcare insurance plan could keep that plan, was not misspeaking (he said virtually the same exact thing at least 3 dozen times, so he must have been saying what he meant to say ).  But was he making a misstatement?  Was he lying?  On that point, we have the President’s own admission that he knew his statements were not “literally” correct, and that perhaps he “should have said” something else; in other words, his statements were incorrect, he knew they were incorrect, and they were not misspoken.  Hence the inference is unmistakeable: the statements were LIES.

But is that all they were?  Given the time-sequence over which the statements were made, it seems appropriate to consider WHY the incorrect statements were uttered, why they continued to be uttered.  What reason could there have been, for his making statements he knew were not correct?  The answer is obvious:  he wanted to influence other people’s behavior.  And that moves us into a wholly different category of untruths:  FRAUD.

For the benefit of those who escaped the joys and burdens of law school, here is a shorthand summary of the American legal definition of fraud.  It involves nine elements, each of which must be shown:

  1. a representation of an existing fact;
  2. its materiality;
  3. its falsity;
  4. the speaker’s knowledge of its falsity;
  5. the speaker’s intent that it shall be acted upon by the plaintiff;
  6. the plaintiff’s ignorance of its falsity;
  7. the plaintiff’s reliance on the truth of the representation;
  8. the plaintiff’s right to rely upon it; and
  9. consequent damages suffered by the plaintiff.

In our analysis, the “speaker” is President Obama.  The “plaintiffs” are, potentially, each of the various people or bodies the President was trying to persuade:  (a) in his earliest speeches and pronouncements, before ObamaCare was passed, he was trying to persuade Congress, both directly and via the constituents of the respective Senators and Representatives; (b) in his later presentations, leading up to the 2012 Congressional elections, he was trying to persuade the voters in those elections; and (c) in his 2012 presentations, he was trying to persuade the voters in the 2012 Presidential election.    In other words, the President was attempting to perpetrate a fraud in order to get a law passed and in order to win Congressional and Presidential elections.

Did the President’s statements meet the standards of “fraud?”  Run through the list yourself – isn’t the answer obvious?  The only potential plaintiffs who might lose their case would be that small number of people who had actually read the bill and grasped its full meaning – a number that apparently did not include Nancy Pelosi (she of “we have to pass this bill in order to find out what’s in it?” fame) and did not include the millions of other politicians, journalists, and ordinary citizens who are suddenly waking up to see that they have been deceived.

No, the more important point is not that the President lied, it is that the President committed fraud in order to pass a law and win some elections, especially his own Presidential election.  It is we, the people, who have been the victims of his deception.

1 thought on “DID THE PRESIDENT LIE? DID HE DO SOMETHING EVEN WORSE? – A legal perspective

  1. I, personally, don’t feel like a victim of his deception. His promises were totally empty and/or unconstitutional from his very first campaign speeches years ago, so I don’t feel taken in. I feel sort of bad for those who do, but I also resent their lack of foresight.

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