Karen Monahan has accused Minnesota Congressman and now attorney general candidate Keith Ellison of what appears to be sexual assault. He denies it. Trump may have colluded with the Russians or obstructed justice, is that true? This is what Robert Mueller is trying to determine. Who is telling the truth–Keith Ellison or Karen Monahan, Donald Trump, or Robert Mueller? Does this suggest that Rudy Giuliani is correct that “truth isn’t truth? Perhaps, but the problem is not over what is true, but the forum and process for determining truth.
Determining what is truth or true is never easy. But in law and democratic politics there are rival notions of finding the truth. But as Joseph Natoli recently stated in Counterpunch, it is not so clear that the court of public opinion is the best way to adjudicate the truthfulness of any allegations or statements about public figures and officials in an era where alternative facts seem to be facts of life. This is the case whether the allegations involve the president of the United States, or a candidate for a state attorney general. The problem for both is that there is a fundamental confusion among the concepts of the marketplace of ideas, the court of public opinion, real courts, and how all of them operate in a hyper-democracy that the United States has become.
In US law the adversarial process and courts are the mechanisms at arriving at legal truth. Questions of guilt or innocence in criminal law or culpability or not in civil law are determined in a structured setting where there are formal procedures that determine what is admissible evidence, and factors to consider when determining the credibility of witnesses. There are procedures put into place that seek to guard against bias. The adversarial process is not perfect, but it does usually provide a structured reliable path that determines the truth of a matter. The Robert Mueller investigation is about this and will culminate in legal proceedings that will determine legal guilt or culpability.
Democracies are messy, and they confuse legal truth with real and political truth. At its best in a democracy who is correct is determined through the marketplace of ideas as described by philosopher John Stuart Mill where competing ideas challenge one another in a process that allows for truth to emerge. The marketplace of ideas presupposes real truth exits, that there are ways to find it, and that rules can guide its discovery. Yet real truth is not necessarily what 50% plus one of the population thinks. The marketplace of ideas does not always work in a political environment, distorted by biases, special interests, and big money. Often it degenerates to simply where majority rule decides what is true via the court of public opinion. This is political truth.
There is a long line of political thinkers, historians, and scholars ranging from James Madison, Alexis deTocqueville, James Bryce, and even to Elizabeth Noelle-Neumann who worried that in America the powers of public opinion would produce a tyranny of the majority. Passions aflamed, majorities or even powerful minorities might rush to judgment and suppress the rights or others. When it works well, public opinion and majority rule are great ways to determine who should be the next president of the United States, or for the public to adjudicate rival claims made by candidates to decide which they prefer, but it is not clear that either are good mechanisms to decide guilt, culpability, or even real truth.
In most cases there is a big difference between whether someone is legally guilty or liable for an act versus whether someone is fit to serve in office. This is the difference between law and politics. Law is about real courts, politics is about the court of public opinion. But when the two are merged–as in case of determining whether allegations against Keith Ellison or Donald Trump and his associates are true and how they address their fitness to serve in office–then the rules are unclear.
And the problem is now exacerbated in our hyper-democracy and where the news is driven by the bottom line. Here accusations and defenses are flung out immediately into the social media without any serious vetting in a world where it is all about being first to report, maximize hits or likes, or generate audience and profits. Accusations, rumors, and innuendo can be shot immediately through Facebook and Twitter, distorted by partisan politics, confirmation biases, and cognitive dissonance. Accusation is enough to render someone guilty, liable, and unfit for office. Image the Salem witch hunts and the McCarthy communist accusations in a social media era and that is what has emerged. It is tyranny of the majority, the pressures of uncontrolled public opinion operating through an unconstrained court of public opinion judging individuals in ways that make it impossible for them to prove their innocence or, in the case of Donald Trump, it conflates legal facts and truth with partisan politics.
So again, is Rudy Giuliani correct that truth isn’t truth? Truth depends on what forum and what kind of truth we are talking about. The court of public opinion in an increasingly partisan and polarized hyper-democracy is not suited either to determine legal or real truth as real courts or the marketplace of ideas are supposed to be able to do. In the court of public opinion there are no rules, no definitions of truth, no standards of conduct that provide clarity. What we are left with are rival ideologies and pronouncements of opinion masking as truth, or simply different meanings of truth.