By Elisabeth Camp
Recent testimony by James Comey and Jeff Sessions before the Senate Intelligence Committee offers fertile terrain for anyone interested in the nuances of verbal communication. If President Trump did indeed request that Comey “let this go, let Flynn go,” then that would prima facie appear to constitute, or at least contribute to, obstruction of justice. But assessing the legal and political implications of Trump’s purported utterance requires establishing that he did indeed make such a request. There is some direct “he-said he-said” conflict about the basic facts. But most of the debate has been couched at the level of interpretation: of what Trump meant, assuming he did utter the words Comey attributes to him.
Here is one especially revealing exchange, between Comey and Senator James Risch (R-ID):
RISCH: I want to drill right down, as my time is limited, to the most recent dust-up regarding allegations that the president of the United States obstructed justice. And, boy, you nailed this down on page 5, paragraph 3. You put this in quotes – words matter.
You wrote down the words so we can all have the words in front of us now. There’s 28 words there that are in quotes, and it says, quote, “I hope” – this is the president speaking – “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”
RISCH: And you wrote them here, and you put them in quotes?
RISCH: Thank you for that. He did not direct you to let it go.
COMEY: Not in his words, no.
RISCH: He did not order you to let it go.
COMEY: Again, those words are not an order.
RISCH: He said, “I hope.” Now, like me, you probably did hundreds of cases, maybe thousands of cases charging people with criminal offenses. And, of course, you have knowledge of the thousands of cases out there that – where people have been charged. Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where this – they said, or thought, they hoped for an outcome?
COMEY: I don’t know well enough to answer. And the reason I keep saying ‘his words’ is I took it as a direction.
COMEY: I mean, this is the president of the United States, with me alone, saying, “I hope” this. I took it as, this is what he wants me to do. Now I – I didn’t obey that, but that’s the way I took it.
RISCH: You – you may have taken it as a direction, but that’s not what he said.
In the quoted utterance Trump makes an ‘I-statement’ about his personal emotional state, and thereby insinuates – without saying outright – that Comey should drop the investigation. In questioning Comey about exactly what Trump said, Risch distinguishes between Trump’s words and Comey’s interpretation, and thereby insinuates – without saying outright – that speakers can only be held legally accountable for what they explicitly claim or order. And in responding to Risch, Comey concedes that the words themselves do not constitute an order, but cites additional features of “the circumstances, the subject matter, and the person” to support his interpretation of it as a directive, and thereby insinuates – without saying outright – that the Senate, and the world at large, should treat Trump as having attempted to obstruct the Flynn investigation.
All three cases exemplify a common, and rationally understandable, pattern. In situations where speakers want to communicate risky contents, where they’re unsure how those contents will be received and/or want to limit their responsibility for those contents later, they often speak in ways that preserve ‘plausible deniability’ about their message, by leaving room for alternative re-interpretations of their words.
The question raised by Risch’s interrogation is what level of deniability counts as ‘plausible’. If even the remotest possible re-interpretation can undermine an attribution of unstated meaning, it seems that insinuation should amount to a (literal) ‘get out of jail free’ card, one that shifts all interpretive responsibility away from the speaker and onto the hearer. This is the model Risch suggests is ensconced in law.
In fact, however, there are significant limitations on what speakers can get away with through indirection. Among other instances, Robert Halderman was convicted in 2010 conviction for attempted blackmail for offering to “sell a screenplay” to David Letterman depicting Letterman’s sexual relationships with staffers. In 2013, the D.C. U.S. Court of Appeals upheld a bribery conviction for an implicit quid pro quo in which a DOJ attorney helped to expedite review of a visa application; even though the problematic request (for Washington Wizards tickets) came only after the visa review was complete, the understanding of expectation for reward was deemed to be sufficiently robust as to have constituted a “corrupt exchange” of “official action for personal gain.”
And in a case strikingly parallel to Trump’s ‘ask’ on Flynn, the National Labor Relations Board in 1995 held that a mere statement of an employer’s “hopes” constituted coercion, because it had a “chilling effect” and “interfered with [the employee’s] exercise of rights.” (Specifically, the President of a San Jose-based television station, KNTV, Inc., required a reporter who had repeatedly asked him to discuss wages and other working conditions before an employee committee to attend a meeting alone, at which he said “I hope you won’t continue to be an agitator or instigate others.” The employee was subsequently fired.)
So there is no blanket legal immunity for indirect speech. Workplace law on sexual harassment offers a more explicit, general standard for communicative culpability, which also encompasses unstated as well as explicit meaning. Thus, the EEOC includes merely implicit threats to continued employment within the scope of “quid pro quo” sexual harassment. It also defines harassment not in terms of how the behavior was actually intended or interpreted, but rather how it would have been interpreted by a “reasonable person” (or sometimes, a “reasonable woman”) in that context.
This is still a high threshold for establishing liability, especially because it is in the very nature of insinuation to trade on subtle non-verbal cues and nebulous implicit assumptions about the particular conversational context. The fact that these sorts of tacit assumptions are usually difficult to articulate and harder to prove is one reason accusations of sexual harassment are so often subject to gaslighting.
As several commentators have noted, the parallelisms between sexual harassment and Trump’s expressions of “hope” (and his “need” for “loyalty”) are eerily apt. This includes parallels in subsequent skeptical responses to the accusation. To wit: Trump was merely articulating his own feelings, while respecting that Comey “had to do his job.” If there was any ‘ask’ at all, it was with a “pretty light touch.” Maybe Trump is just a bumbling naif, unaccustomed to finicky institution-specific norms. Back where Trump is from, this is a “normal” way to communicate. Comey must not have really thought Trump was attempting to block the Flynn investigation, since he “continued to show up for work the next day” (cf. Arlen Specter to Anita Hill: “[H]ow could you allow this kind of reprehensible conduct to go on right in the headquarters without doing something about it?”).
Given that insinuations like Trump’s are designed to permit re-interpretation, it is not surprising that his allies offer such reconstruals in his defense. But as the the legal cases demonstrate, the mere specter of an alternative interpretation doesn’t automatically block third parties from establishing what a speaker meant with a reasonable degree of certainty.
And here, Comey’s own carefully cultivated just-the-facts-ma’am style offers a deft counter-feint to the skeptical threat raised by Risch, Rubio, Blunt and others. Over and over again, Comey reports the specific words uttered and the specific circumstances of utterance, including non-verbal gestures (and non-gestures: “I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence.”). He then states his “gut feeling” about what Trump meant – how he took the utterances at the time, based on having “had a lot of conversations with humans over the years.”
But Comey consistently avoids putting himself directly on the hook for further interpretation or assessment. He demurs that “it’s not for me to say whether the conversation I had with the president was an effort to obstruct,” that it’s not his job to “sit here and try and interpret the president’s tweets.” By couching his descriptions in highly detailed, objective terms (e.g. “Reince Priebus leaned in through the door by the grandfather clock”), he appears to let the facts “speak for themselves” – where those “facts” include the fact of this apparently careful, methodical hearer taking Trump’s utterance as a directive. He thereby provides his audience with evidential ammunition to justify the conclusion that Trump obstructed justice for themselves, without himself assuming responsibility for it. And he shifts the burden of proof onto the skeptical re-interpreter, who must now identify and corroborate an alternative set of specific, objective facts (as opposed to “alternative facts”) in order to justify an exculpating re-interpretation.
Comey’s careful non-saying in order to bolster his rhetorical authority contrasts sharply with Jeff Sessions’ careful non-saying sitting in the same seat five days later. As some Senators and legal experts have noted, Sessions’ claim that it would be “inappropriate to answer” questions about his conversations with Trump because he needed to protect the possibility of Trump’s later invoking executive privilege was inconsistently applied and legally questionable. But even granting this claim, Sessions’ refusal to explicitly answer many of the questions posed to him undermined, rather than augmented, his rhetorical standing, because it strongly suggested that he did speak with the President about the Russia investigations and Comey’s firing.
Where Sessions’s utterances differ from Comey’s (and Trump’s, and Risch’s) is that the ‘strong suggestion’ derived by his hearers was not something Sessions meant by his utterances. Given his background sitting on the more comfortable side of the Senate inquisitorial table, Sessions surely anticipated the cognitive effect that his non-saying would produce. But as Grice would put it, Sessions did not intend to produce that effect – let alone intend for that effect to be produced by his hearers’ recognizing that this was the effect he was attempting to produce. By contrast, this is exactly what Comey – and apparently, Trump – set out to do.
The miracle of communication is that interlocutors succeed in coordinating so often and so easily, even when the message is not explicitly encoded in the words uttered. A message can be crystal clear within a conversation even when it is designed to be murky to those outside the conversation. (Sadly, as grading papers reminds us, a message can also be murky even when encoded in words.) When stakes are high and content is risky, as here, speakers are likely to avoid making their message fully explicit. But if they want to communicate at all, they must still make it clear enough for their hearers to figure out. And in so doing, they may also make it available to other reasonable, appropriately informed interpreters. Non-saying mitigates communicative risk, but does not eliminate it.
Elisabeth Camp received her PhD from UC Berkeley, after which she spent three years at the Harvard Society of Fellows, taught at the University of Pennsylvania starting in 2006, and joined Rutgers University in 2013. She has also worked in Chicago, designing and implementing programs for GED instruction in public housing and for ESL instruction in the Latino community. Her research focuses on thoughts and utterances that don’t fit standard propositional models.
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