The facts of this he-said, she-said case are that Saifullah Khan, a then-22-year-old Yale senior, and his accuser, also a senior, had Halloween dinner together at the dorm’s dining hall on October 31, 2015, and crossed paths later that night—first at a drinking party and then at a Yale Symphony Orchestra concert—ultimately ending up in her room at 1:11 a.m. and having sexual intercourse.

The trial centered on the credibility of the accuser’s testimony—which was halting, tearful, and contrary to proven facts on some points—and of her claim that she was so drunk that she could barely stand or walk, flitted in and out of consciousness, and awakened in her bed for just long enough to feel Khan on top of her and to try to push him off.

Khan, an Afghan who was recruited to an American prep school (Hotchkiss) and then to Yale because of his academic gifts, testified that the accuser did not seem at all intoxicated to him during the six hours they were in her room, flirted with him at the concert and on the walk back to the dorm, invited him into her room, and initiated both oral sex and, more than two hours later, full intercourse.

Numerous Yale students, journalists, and champions of rape victims’ rights have trashed the trial and especially the defense lawyer’s cross-examination of the accuser as “every survivor’s worst victim-blaming nightmare,” in the words of Jess Davidson, interim director of the advocacy group End Rape on Campus.

The article reporting the verdict in the New York Times, which exhibited bias throughout its coverage of the trial, disapproved of Khan’s lawyers working “relentlessly to discredit the account of the woman. . . . They asked repeatedly how much she had to drink. . . . They showed off her Halloween costume, a black cat outfit, and asked her why she had not chosen a more modest one, such as ‘Cinderella in a long flowing gown.’ ” Time called its piece “A Yale Student Accused Her Classmate of Rape. His Lawyers Asked What She Was Wearing and How Much She Drank.” An online magazine for young women, Refinery29, ran its account of the trial under the headline “Jurors Bought Stale Victim Stereotypes—Just Like the Defense Hoped.”

Yet defense lawyers are required to do their best to discredit accusers who are trying to put their clients behind bars—Khan faced a maximum prison sentence of 46 years and deportation back to Afghanistan, where he believes he would have been executed, stoned, or lashed under the country’s laws. And wasn’t it part of the defense’s duty to probe the accuser’s claim that she had had so much to drink that she was losing consciousness several hours later? The lead defense lawyer, Norman Pattis, called the reaction “a form of mass hysteria.”

His question about the costume that the accuser chose for her Halloween get-together with Khan spurred particular outrage among the accuser’s advocates. “A misogynistic tactic that men habitually use to silence women . . . by blaming them for their own assaults,” raged Amelia Nierenberg, a Yale Daily News columnist. Out of a variety of costumes from a Yale storage closet, the woman had opted for the sexy cat, pairing a sequined black miniskirt with matching tube top and tail. In pointing this out, Pattis stressed that his purpose was not slut-shaming but spurring skepticism about the accuser’s testimony that she was uninterested in Khan sexually and was afraid that he was stalking her and trying to get into her room.

In any event, the jurors appear to have paid little attention to the costume. They were far more interested in the grainy security videos that the prosecution made a focus of its case, claiming that they showed the accuser in such an inebriated state that she was stumbling, with her eyes closed and her left foot dragging behind her (as she testified), and needed Khan to hold her up while walking from the concert to her dorm. She emphasized that she was a dancer and did not normally walk that way.

The jurors had the videos replayed numerous times, and those who have spoken publicly saw nothing of what the prosecution suggested. “We looked at and we looked at and we looked at that video of them walking,” one anonymous juror told the New York Times, but “we could not see her leg dragging. We could not see her eyes shut.” Juror James Galullo told Alice B. Lloyd of this magazine: “We all agreed that she was walking hand-in-hand, arm-in-arm, smiling.” Alternate juror Elise Wiener told Robby Soave of Reason: “She was strolling with him with a big grin.”

This did not prevent news outlets, including the New York Times and the Yale Daily News, from repeating the prosecution’s characterization of the videos. Both papers could have obtained and posted the footage to let readers judge for themselves. They chose not to do so.

Hours after the alleged rape, the accuser told a Yale health center nurse that she needed a Plan B morning-after pill due to having had consensual sex with a regular partner. At the trial, she explained that she was “too traumatized” to tell the nurse of the alleged assault.

After meeting later that day and the next day with several friends—including a former boyfriend who took her phone, dialed Yale’s sexual-misconduct office, and handed the phone back to her—the initially irresolute accuser filed a complaint against Khan with the sexual-misconduct office and then went to the Yale police department.

The details of the process are unclear, but university officials, the university police, and the accuser decided to ask the New Haven state’s attorney’s office to prosecute Khan criminally rather than rely on the internal disciplinary process.

It is rare for the kind of sexual-misconduct accusations that are typically filed by university students to be sent on to a public prosecutor. The only plausible explanations here are that Yale officials felt the accusations in this case (unlike in most) to be serious enough to qualify legally as sex crimes or that the accuser herself, as was her right, decided to press criminal charges.

Yale suspended Khan on an emergency basis on November 9, 2015, a week after the accuser reported him. It also threw the Afghan native, who had few connections in the United States, out on the street on very short notice.

***
Much of the national coverage of the case has suggested that the verdict was a miscarriage of justice, but that belies any review of the trial evidence, little or none of which would have been uncovered and considered in a Yale disciplinary proceeding.

At a time when the accuser testified she was concerned that Khan was becoming aggressive in pursuing her—and had tried to enter her dorm room uninvited and had responded angrily when she told him to leave—she was also sending playful texts to him sprinkled with smiling and giggling emoticons. She even texted him a Shakespeare poem, “From fairest creatures we desire increase,” the first of the so-called “procreation sonnets.”

The accuser’s claim that after the two had met for Halloween dinner, Khan followed her into her entryway and tried to push his way into her room is almost impossible to reconcile with Yale’s electronic dorm card-key system. She swiped into her entryway at 6:47:31 p.m.; he swiped into his just seven seconds later. For her story to be accurate, he would have had to follow her into her entryway, try to push his way into her room while “I was trying to push him back,” and then go off to his own entryway and swipe his card-key, all in seven seconds flat.

The timeline of the evening suggests it was unlikely that the accuser could have been completely incapacitated by alcohol at the time of the alleged rape as she claimed. By her own account, she had five drinks containing varying amounts of alcohol at the party. While friends testified that she was somewhat—one said extremely—intoxicated when she left the party for the concert, it appears clear from the testimony that she stopped drinking between 10:50 p.m. and 11:40 p.m. The timeline is complicated by the fact that clocks were turned back at 2 a.m. due to daylight savings time, but it seems the accuser had her last drink at least four-and-a-half hours before the alleged rape, which apparently occurred after a phone call that Khan placed at 1:55 a.m. from the accuser’s sofa to his longtime girlfriend in Maryland (a call that lasted 141 minutes).

The two have an open relationship, and the girlfriend testified that she already knew the accuser from a summer physics class at Yale. She and Khan both stated that he handed his phone to the accuser at one point and the two women spoke briefly. “I said, ‘Hi,’ and she said, ‘Hi,’ ” the girlfriend told the court. She recalled the complainant used the girlfriend’s name when saying “Hi” to her. She said this was the extent of their conversation, and that she and Khan then continued talking for another hour and a half. Khan testified that the accuser had already given him oral sex before the phone call and asked him to “come to bed” after it ended.

One friend, Josh Clapper, initially told university police that the accuser “did not seem intoxicated” at the concert, which came after her final drink. At trial, his recollection had changed and he, like other friends of the accuser, said she needed support walking.

The apparent passage of those four-and-a-half hours, during which the accuser said she vomited two or three times, casts doubt on her assertions such as “I tried to say ‘stop’ but I’m not sure if anything came out. I couldn’t communicate because I was that inebriated.”

The accuser testified “he was pinning my legs and arms so I couldn’t move.” But Pattis noted that in her 61-page statement to police, she had never suggested that Khan pinned her arms.

After the alleged rape, the accuser awakened with Khan in her bed and told him she was embarrassed and disgusted by her behavior, by his account. After he departed, leaving two condoms that bore his DNA in her room—not the sort of oversight one might expect from a man who feared he might be accused of rape—he sent her a text at 6:14 a.m. She texted back “LOL.” Then Khan responded with a winking emoticon and she replied, “Go to sleep and this will stay between us that goes for you too.”

Jurors also took notice when a prosecution expert witness had to admit that the DNA found in a swab of the accuser’s anus the day after the alleged rape had come from a male other than Khan. This was particularly relevant as the accuser had told police that she had not had sex in six months. The news media completely ignored this crucial fact.

The accuser also claimed that she discovered after Khan left that he had taken her phone and used it to send messages declining her friends’ invitations to meet up after the concert. If true, this would be direct evidence that Khan was trying to isolate the accuser. But he denied taking or using her phone. This was a he-said, she-said standoff—and the jury clearly believed that he was the more credible witness.

***
What happens now? Saifullah Khan’s lawyers have requested that Yale readmit him and allow him to complete his last semester as a cognitive-science major. There is also an online petition circulating that demands “that Yale University continue to follow the guidelines laid out by the Obama administration, and continue to uphold Saifullah Khan’s suspension.” It had nearly 50,000 signatures as this magazine went to press.

It seems most likely that Yale’s University-Wide Committee on Sexual Misconduct (UWC) will employ a secretive campus proceeding to pass judgment on Khan with minimal due process, no speaking role for defense lawyers, no meaningful cross-examination of the accuser, and no transcript of the proceedings.

The UWC defines “sexual misconduct” as “a range of behaviors including sexual assault (which includes rape, groping and any other non-consensual sexual contact), sexual harassment, intimate partner violence, stalking, and any other conduct of a sexual nature that is non-consensual, or has the purpose or effect of threatening or intimidating a person or persons.” The policy adds: “Much sexual misconduct includes nonconsensual sexual contact, but this is not a necessary component. For example, threatening speech that is sufficiently severe or pervasive to constitute sexual harassment will constitute sexual misconduct.”

Any reasonable penalty would have to take account of the fact that Khan’s education has already been derailed for two-and-a-half years by an unwarranted accusation and a criminal proceeding.

It can fairly be said that Khan was insensitive in having sex with a woman he did not know well a few hours after she had downed a lot of alcohol and vomited repeatedly and in placing a 141-minute phone call to his girlfriend in the accuser’s presence, in between having oral sex and sexual intercourse with her. But by his account, the accuser was eager to have sex. And Yale’s rules do not mention insensitivity or any other violation of its policy less damning than “sexual misconduct,” a vaguely defined phrase that surely requires more than insensitivity and in many circles carries a connotation of sexual predation.

Some longtime observers of Yale’s process consider it possible—even probable—that despite the verdict of the criminal trial, the UWC will still find Khan responsible for “sexual misconduct” and expel him.

Indeed, his lawyers have appropriately called the UWC “a political entity draped in the presumption of guilt” that “rushed to judgment in this case” and that has more broadly “embarked upon a secretive Jacobin-style crusade in which complainants were pressured to come forward, procedural due process was ignored, and exculpatory evidence was casually and conveniently displaced.”

They have also pointed out that the chief of the Yale Police Department, Ronnell Higgins, recently told the Yale Daily News that his officers “are trained to ask the right questions . . . placing emphasis on a victim advocacy approach.” That sounds inconsistent with our legal culture’s hallowed presumption of innocence—which is nowhere mentioned in the UWC’s procedures. Not one of the sexual-misconduct complaints filed by female Yale students against males since the university’s current reporting system started in 2012 has been found to be false.

Asked by email for comment on the verdict and on what Yale might do now, Yale spokesman Tom Conroy responded: “It would not be appropriate for Yale to comment on the verdict in a criminal case, especially one that involved two Yale students. In regard to internal adjudications, Yale’s ability to comment on individual cases is limited by federal privacy law and Yale’s confidentiality policies. The University believes that confidentiality is critical to the integrity of our processes, and, for that reason, it does not confirm or deny that a specific allegation has come before the University-Wide Committee on Sexual Misconduct.”

Defending Yale’s overall handling of sexual-misconduct allegations, Conroy said that critics do “not take into account the process that Yale provides, which includes written and specific notice of the charges; the right to an adviser, who may be an attorney; the opportunity to present evidence and suggest witnesses; a written investigative report prepared by an impartial fact-finder; a hearing before a trained panel of members of the Yale community; the opportunity to submit questions through the panel to witnesses and the opposing party; a written panel report; the opportunity to respond in writing to the panel report; a written decision by a decision maker separate from the panel; the right to submit a written appeal to a second decision maker; and a written appeal decision.”

Judge José Cabranes, a U.S. circuit judge and Yale’s first general counsel, expressed another view in a devastating 2017 article in the Yale Law & Policy Review. While focusing mainly on threats to freedom of expression at Yale, he also assailed the university for its handling of sexual-misconduct accusations. “Today,” Cabranes wrote, “as a matter of Yale University law . . . in a sexual-misconduct proceeding, even for an allegation of non-criminal conduct. There is:

• No right to a public hearing, or even to a complete record of the private hearing;

• No right to have counsel speak on one’s behalf;

• No right to call friendly witnesses, much less confront and cross-examine adverse witnesses; and

• To top it all off, no assumption of innocence until proven guilty—merely a finding of wrongdoing that rests on a preponderance of the evidence (the lowest standard of proof known to American law).”

Conroy did not mention these aspects of Yale’s process. And while touting the “trained panelists” who pass judgment on accused students, he also failed to mention the fact that Yale (like many other universities) has taken great pains to keep secret the materials it uses to train them.

Why so secretive? As KC Johnson and I detailed in these pages last September, the training regimes are designed more to put a thumb on the scales toward guilt than to ensure a fair inquiry. The programs we were able to review were permeated with unsupported assertions about how false complaints are rare and that an accuser who contradicts her own prior accounts or established facts should be seen not as deceptive but as a victim of “trauma.”

Cynthia Garrett, a lawyer who is co-president of Families Advocating for Campus Equality, a group supporting students who say they were falsely accused, sat through the whole Khan trial and spent much time giving moral support to the defendant. She came away from New Haven, she says, “with the disturbing realization that, as a whole, the Yale community is insular, dogmatic, and intolerant of diverse perspectives. It became apparent from my interactions with at least one Yale Daily News reporter that any who dare expose alternate viewpoints are quickly shamed into silence.”

Saifullah Khan himself is far more upbeat. I asked him about the trial, and he wrote, “As dark as this experience has been so far, the foundation of this democratic republic kept my beliefs strong. And as divided as this country may seem online, I have found love and hospitality at every corner of this country.”

Stuart Taylor Jr. is co-author, with KC Johnson, of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities

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Misinformation functions in a similar fashion, gaining traction as it’s repeated by increasingly high-profile individuals who venture ever further from the source material. In this manner, distortion about the facts of sexual assault has affected the training of judges, prosecutors, and other law enforcement officials. It is how misleading assertions become embedded in criminal and military law.

This is a story of how a theory without merit, derived from highly questionable statistics, imperils the most basic tenets of due process and risks turning every unproved accusation into a verdict of guilt.

The example discussed here began with a small study by an associate professor at a commuter college in Massachusetts. The 12-page paper describing the study barely created a stir when it was published in 2002. Within a few years, however, the paper’s principal author, David Lisak, a University of Massachusetts-Boston psychologist, began making dramatic statements that extrapolated far beyond the study’s conclusions. He created, virtually out of whole cloth, a theory that “undetected” serial rapists are responsible for 90 percent of assaults on college campuses, that they premeditate and plan their attacks, and that they are likely to have committed multiple acts of violence.

When speaking on campuses, to the military, and to law enforcement, Lisak started showing a highly disturbing video that he claimed was based on the transcript of an actual interview with a campus rapist to whom Lisak gave the name “Frank.” The authenticity of the video has been seriously questioned, raising grave doubts about Lisak’s contention that it illustrates the typical campus perpetrator—in his view, an unrepentant sociopath who cannot be reached or educated.

A news search for mentions of Lisak finds only a single one prior to 2009, in which he revealingly opined in an urban policy magazine about the Duke lacrosse rape hoax. He was interviewed again by CBS News in November 2009 about non-stranger rapes. He increasingly became the draw at conferences on sexual assault and his calendar filled with campus presentations. The media began to fawn over him, whether due to the drama of the notion of campuses being stalked by serial rapists or to the failure of campus administrators, blinded by the appeal of an identifiable villain, to point out the disconnect between Lisak’s portrait and their own observations. (A sociopath responsible for the majority of assaults can be removed from campus. The reality of college drinking and the still-developingadolescent brain, and the relationship of both to behavior fueled by poor judgment and peer pressure, provide no such easy fix.) By the end of 2010, Lisak’s status was on the rise. Within a few years, his was arguably the most high-profile name on the topic of sexual assault.

Lisak’s serial-rapist theory was reflected in the 2011 letter in which the Department of Education ordered universities to adopt specified, guilt-presuming disciplinary procedures for alleged sexual assaults and, in the process, gave credence to the probability of repeat offenders. Lisak’s theory also found its way into a January 2017 report by the White House Task Force to Protect Students From Sexual Assault, which simultaneously criticized a more recent, nationally representative study that had been subject to far more rigorous statistical analysis. Lisak was quoted so often as to make him a central figure in the pseudo-documentary “The Hunting Ground.” As his celebrity grew, the gap between documented facts and his status as an expert became almost inconsequential.

Criticism did eventually catch up to David Lisak. His serial predator model of campus rape has been compellingly debunked by scholarly researchers and well-regarded publications, including investigative articles and a book. His claims regarding the psychology of campus perpetrators were revealed to be based on nonexistent interviews. A key component of his presentations, an “unedited transcript” of an interview with a college rapist presented as timely and typical was revealed to be not only highly edited but based on an interview from three decades ago with a subject who was clearly an atypical outlier — as documented by Lisak’s own publications.

A 2008 paper, in which he linked “undetected serial rapists” with a propensity to commit serial and “crossover” acts of violence such as interpersonal attacks unrelated to sex, was shown to have provided no basis for such a generalization. His assertions, allegedly supported by a study he co-authored in 2010, that false accusations of sexual assault are exceedingly rare, have been shown to violate basic math by counting as true cases that didn’t qualify as sexual assault, had insufficient evidence to make a determination, or were referred for prosecution but about which the outcome was unknown.

As for Lisak’s vague statements about having interviewed “hundreds” of serial rapists (occasionally styled as “thousands” when others talk about him), in truth no evidence exists that Lisak has interviewed any “undetected rapists,” serial or otherwise, since his dissertation research 30 years ago.

His claimed years of research turned out to be a handful of actual research publications, reviews full of editorializing about others’ research, rehashing of the dissertation he completed in 1989, and a website that deceptively merges that dissertation’s 1980s-era research on 12 college students with unrelated data from the 2002 paper on repeat offenders.

Yet all of these devastating exposés have barely dented Lisak’s popularity. In spite of his own warning in that 2002 paper that the “non-random nature of the sampling procedures” precludes interpreting the data “as estimates of the prevalence of sexual and other acts of violence,” he has built a career doing exactly that. His original research—the ostensible basis of his expertise—fits on a single page of his curriculum vitae. In spite of this limited output, he continues to be a featured speaker and forensic witness based in large part on the very distortions that have been so convincingly exposed.

Were the damage wrought by David Lisak’s popularity confined to his college-circuit road show, there might be some hope that his toxic influence would be worn down by the critical thinking ostensibly prized by the academy.

Instead, that has not happened. The list of invited presentations, workshops, and media appearances in which he has hawked his unsubstantiated theories runs an additional 40 pages on his curriculum vitae. Among the most worrisome aspects of Lisak’s presentations and workshops is how they appear to be gaining influence among professionals close to the investigation and adjudication of sexual assault. His debunked serial predator theory and wildly extrapolated statistics on the false-accusation rate form the core of the training materials he has developed—and in some cases sold to law enforcement, prosecutors, judges, and the military.

Whenever Lisak presents his serial predator theory—invariably accompanied by his claims about the low rate of false accusations of rape–his toxic influence spreads. A small sampling shows its range:

• S. Air Force. Special training for the Office of Special Investigations: The Behavior and Characteristics of Non-stranger Rapists: Implications for Investigation and Prosecution.
  Joint U.S. Navy and Marine Corps Mobile Training Team conference, Naval Air Station Jacksonville. The Undetected Rapist.
  Delaware Judicial Education Retreat. Sex Offenders: Myths and Realities.
  S. Marine Corps. Special training for JAG officers: How Predators Pick Their Prey.
  California Administrative Office of the Courts. Handling Sexual Assault Cases: Sex Offender Characteristics and Evaluating Evaluations.
  Wisconsin Office of Justice Assistance Statewide Sexual Assault Response Team Conference. False Reports of Rape: What Do the Numbers Tell Us?
  Special Law Enforcement Training, State University of New York. The Behavior and Characteristics of Non-stranger Rapists.
  Prosecuting Attorneys Association of Michigan Sexual Assault Summit.Rapists: Myths and Realities.

Again, were the damage limited to misinforming attendees, it might not be so large as to warrant concern about the damage wrought by Lisak’s influence. Unfortunately, that’s not the case, either. For example:

A project funded by the U.S. Department of Justice compiled a list of 25 “facts” that judges who attended seminars offered by the National Judicial Education Program—a company for which Lisak has served as a faculty member and that continues to sell materials he created—said they wished they’d known before presiding over sexual assault cases involving adult victims. Although the fact list includes some reasonable and factual assertions, it also includes Lisak’s unfounded claims about serial predators and false reports. As part of its curriculum, NJEP advises judges to use voir dire to gauge prospective jurors’ familiarity with these “facts.”
Especially frightening was one judge’s conclusion that “when evaluating sex offender risk, actuarial assessments are more accurate than clinical assessments.” That is, a psychologist’s judgment of the danger the defendant represents should take a back seat to the statistical likelihood, based on Lisak’s “research,” that the defendant has committed other acts of “undetected” violence.
Lisak’s misinformation has been passed on to law students, practicing attorneys, and judges through a number of influential sources, including Cornell’s Law School, the Judicial Education Center, the Florida Court System, the National Center for State Courts, and the American Bar Association. In every case, the benefit is to the prosecution.
Even the National Academy of Sciences has used Lisak’s unsupported serial rapist theory to weigh in on “police mishandling” of rape accusations that “has allowed serial rapists like those in Lisak and Miller’s research to perpetrate again and again without detection.”
A 2016 amicus brief filed with the Supreme Court of Ohio made a similar charge but upped the ante by invoking Lisak’s (equally unsupported) claim that these serial offenders had a propensity for other violence as well.
Most troubling of all, Lisak’s material is being codified in law enforcement policies, legal precedents, and judicial guidelines at the local, state, and federal levels.

The Sexual Offense Bench Guide for judges in the state of Washington, for example, draws liberally from Lisak’s 2008 publication “Understanding the Predatory Nature of Sexual Violence.” His claims have been similarly incorporated into New Mexico’s Sexual Assault Bench Book, the Tribal Court Judges Bench Book on sexual assault, the Missoula County Attorney’s Office Policy and Procedure Manual, the Pennsylvania Crimes of Sexual Violence Benchbook, New York State’s Judicial Symposium, Wisconsin’s Prosecutor’s Sexual Assault Reference Book, and the Judge Advocate General Corps Criminal Law Desk Book.

The relationship between prosecutors, judges and the juries who will ultimately arrive at verdicts in criminal trials is further tainted by recommendations that prosecutors and judges incorporate into the jury selection process: namely, Lisak’s claim that false accusations are rare and his unsupported theory about serial offenses.

JAG guidelines for prosecutors, for example, advise that “myths” about the frequency of false reports be challenged “directly, in voir dire and in argument.” Prospective jurors whose information does not align with the (inaccurate) information provided in guidelines influenced by Lisak could then be dismissed and/or a seated jury could be told of the supposedly “true” facts. Recommendations from the NYU School of Law related to prosecuting sexual assault invoke Lisak to justify investing resources to pursue less credible cases because each represents “an opportunity to catch a serial rapist.” Prosecutors can, the recommendations continue, “uncover juror rape myth acceptance” via voir dire and “educate the jury pool about sexual assault.”

Once so codified in judicial and law enforcement guidelines, this toxic mixture of misinformation is extremely difficult to dislodge. Skewed jury pools, erroneous decisions at trial, and the weight of distortion have real consequences. A judge in Montana, for example, denied a request to have a case dismissed on the grounds of a Missoula police department requiring  officers to presume the guilt of the accused when investigating sexual assault. The judge stated that she based her ruling on Lisak’s (baseless, and thus misleading) testimony about the low rate of false reports. When such decisions are made, when presumptions of guilt are part of the training of judges and prosecutors, or reflected in jury instructions, innocent defendants are put in harm’s way.

Even those ostensibly in the business of impartial news coverage have been tainted by their own guidelines, as when the media have been fed the same misinformation, masquerading as insight. Their contribution to the problem is further amplified when they are further advised not to use the phrase “rape allegation” because “allegation is not a neutral term and strongly implies doubt,” and they fail to see that the alternative suggested—“reported rape”—implies an act that has, indeed, happened, distinguished only by the fact that it is on record.

Where does that leave those for whom accuracy, integrity, and truth matter?

The unfortunate reality is that the greatest potential harm of the current environment accrues to the accused. Therefore, defense attorneys already burdened with a state of affairs in which “accused” defaults to “perpetrator” and “accuser” defaults to “victim” need to equip themselves to take on not only expert witnesses citing bogus “research” but also the underlying studies.

This is not an easy assignment, but the use of good lawyering to dismantle bad “research” can be powerful, and good courtroom theater as well. When faced with a Lisakian claim that “only 6 percent of rape allegations are false,” the defense attorney can ask what percent, then, are true? David Lisak himself would have great trouble answering that question without being exposed as a statistical manipulator, because his writings have never even addressed it. Rather, he has used misleading language to imply that almost all rape accusations have been proven true. Indeed, a good defense lawyer could fairly ask: “Isn’t it a fact, Mr. Lisak, that the number of rape accusations that have been proven false may well be larger than the number that have been proven true?”

When the assertion about Lisak’s serial sociopaths is repeated, the defense attorney can point to the fact that Lisak’s study never established a single serial crime, nor that any of the rapists were undetected, and to Lisak’s own statement that his findings cannot be generalized beyond the limited scope of a single study. When Lisak’s “interviews” are invoked, the defense attorney can ask: How could anyone interview survey participants whom he never met and whose identities he never learned? Weren’t the only interviews Lisak actually did those with the 12 subjects of his three-decades-old dissertation research? And were not the highly impulsive subjects described in his dissertation wholly unlike the portrait he later painted of sociopaths with excellent impulse control who premediate and plan their crimes?

Lisak’s claims are wrong and the experts who tout them are vulnerable when asked direct questions. The discrediting of Lisak must become part of the court record, in case after case, before the far more difficult task of correcting the effects of his bogus claims on criminal justice policies can be accomplished.

The focus here has been on one particular—and particularly problematic—conveyer of misinformation. David Lisak’s high profile and willingness to depart from even his own published papers in service of an agenda makes him the embodiment of the attack on due process. But Lisak is not alone. He has recently been joined by other “experts” straying even further afield from verifiable data and often in direct contradiction of known science.

The difficulty of fighting the toxic distribution of misrepresentation and statistical sleight-of-hand is partially a function of high-profile purveyors and enablers. The codification of myths in law enforcement procedures; in the training of prosecutors and judges; and in policy at the town, county, state, and federal levels all but guarantees insidious and continuous regeneration. The roadmap such myths provide is wrong but concrete, offering up sociopathic villains in place of a continuum of offenders, permission to presume guilt in the absence of evidence, and a philosophy that accusers not only don’t lie but are never mistaken. Few combinations are more immune to objective inquiry than fear of monsters and the comfort of easy answers for taking them down.

But objective inquiry is called for and those who put obstacles in its way must be confronted. Neither law enforcement nor the courtroom should be a conducive environment for misinformation. It should not be intentionally introduced or passively tolerated. For now, a disproportionate burden will fall to defense attorneys. The battle against misinformation starts one case at a time.

Linda LeFauve is a college administrator and a contributor to Reason.
Stuart Taylor Jr. is an author and former nonresident senior fellow at the Brookings Institution who has written extensively on legal and policy issues.

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Both parties in the case had credibility issues; he had violated a no-contact order, she had withheld from the university the bulk of their text messages. But the accused student possessed strong exculpatory evidence. He produced the full record of their communications, which included texts from the accuser to him discussing the encounter in a highly positive fashion and referencing a “plan” to have sex again. Further, a friend of the accuser, who saw her shortly after the incident, recalled her raving about her “really hot” experience.

Nonetheless, Brown’s disciplinary panel returned a guilty finding by 2-to-1. The decisive vote came from Besenia Rodriguez, the university’s associate dean for curriculum.

In subsequent court testimony after the accused sued Brown, Rodriguez admitted that she had not considered the accuser’s text messages or other post-incident behavior as having any bearing on the case. The reason, she said, was the hours of training that Brown had provided to prepare her to adjudicate the complaint—training required by the federal government. Rodriguez was specifically told that the impact of trauma on sexual-assault victims often causes them to behave in counterintuitive ways, such as not being able to recount a consistent set of facts or choosing to communicate with (rather than to avoid) the alleged assailant. “I felt like it couldn’t—I couldn’t really put myself in her shoes to understand why she was representing it that way,” explained Rodriguez, “so best not to attempt to judge her behavior.”

But judging the accuser’s behavior, noted U.S. District Judge William Smith, “was precisely her job as a panel member: to interpret the evidence and make factual determinations about it.” He added, “It appears what happened here was that a training presentation was given that resulted in at least one panelist completely disregarding an entire category of evidence”—evidence severely damaging to the accuser’s credibility.

Smith invalidated the university’s decision, noting, even apart from Rodriguez’s dereliction of duty, the overall process was far from equitable. The Brown official who designed the training Rodriguez received, Alana Sacks, did not respond to a request for comment.

Since 2011, the federal government has required all universities that receive federal money to provide “training or experience in handling complaints of sexual harassment and sexual violence” to adjudicators and investigators. Since nothing in the experience of most academics prepares them to competently investigate an offense that’s a felony in all 50 states, it makes sense to train those who are assigned to investigate campus sexual-assault allegations. But the ideological regimes used on many campuses are designed more to stack the deck against accused students than to ensure a fair inquiry. The risk of injustice is enhanced by the fact that, to the best of our knowledge, no school discloses the contents of its training materials to accused students before commencing the disciplinary process. The contrast between this training regime and the instructions given by judges to jurors in criminal trials—most obviously, that they should presume defendants innocent until proven guilty—is stark.

“In a criminal trial,” says former Baltimore state’s attorney Gregg L. Bernstein, “we ask jurors to use their common sense and apply their own life experiences to determining questions of credibility and guilt or innocence. We do not ‘train’ jurors at the expense of considering equally plausible factors as to why [an alleged] victim’s testimony might not be credible.” Bernstein, who during his term in office created a special unit to handle sexual-assault cases, believes a balance “can be struck in which the victim’s account is given credence and she is respected, while at the same time, the alleged assailant has the right to test the story. We should ask for no less when a person’s reputation can be altered for life by these types of [campus] allegations.”

The training mandate originated with the Obama administration’s 2011 “Dear Colleague” letter, which dictated campus procedures for sexual-assault allegations that dramatically increased the chances of guilty findings. Expanded guidance in 2014 from the Department of Education’s Office for Civil Rights ordered that the training include “the effects of trauma, including neurobiological change”—a phrase pregnant with hidden meaning. The Obama training requirements (without the “neurobiological change” part) were then formalized in a binding federal regulation in 2015.

While Secretary of Education Betsy DeVos has rescinded the 2011 and 2014 Obama commands, the 2015 regulation keeps most of the Obama training mandate in place. All the while, the secrecy of almost all the training materials has enabled them largely to escape public scrutiny.

“The biggest problem with these training materials,” says Justin Dillon, a Washington, D.C., lawyer who has defended dozens of students accused of sexual assault, “is that if the accuser comes in, contradicts herself and the evidence, all that gets explained away because of ‘trauma.’ Junk science like that makes it extraordinarily hard for students to defend themselves effectively. Schools cherry-pick studies without actually understanding anything about them; they just take this chicanery at face value. Students would need to first pay a lawyer, and then pay that lawyer to find a neuroscience expert who is both willing and qualified to take on this issue. And if you think lawyers are expensive, wait until you see how much experts charge.”

Middlebury College’s training, for instance, urges adjudicators to “start by believing” the accuser, while asking themselves whether the accused student is “who he said he is.” The training materials twice feature a hypothetical campus rapist announcing: “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.”

The college further orders that in order to be “objective,” investigation reports must not use the word “alleged” before “victim” or “sexual assault” and must avoid passages such as “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect” or the “victim has inconsistencies with her story.”

The role of the investigative report is especially important at Middlebury because, like more and more schools, it has abandoned disciplinary hearings on sexual-assault claims in favor of a single-investigator system. This was designed to shield the accuser from cross-examination, but also empowers a school-appointed official to serve as “detective, judge and jury,” in the words of Greg Lukianoff, president of the Foundation for Individual Rights in Education. In the specific system used at Middlebury, a college administrator renders the final decision based primarily on a report prepared by the investigator. The accused student and his representatives have no opportunity to cross-examine the accuser or the investigator. The training’s restrictions on the content of the investigator’s report thus have a direct effect on the final outcome.

After we wrote about the Middlebury training, the firm that conducted it, Margolis Healy, removed the associated material from its website. The company did not respond to a request for comment.

Eric Rosenberg, an Ohio lawyer who has represented accused students in both state and federal lawsuits, says that the “systemic bias” in training materials extends to essentially “mandating adjudicators shield accusers from exculpatory evidence” as it might “re-victimize the victim.” A state or federal judge, Rosenberg explains, “would undoubtedly find [that any] jury pool members who promise not to re-victimize a party who alleges an injury should be stricken for cause.”

Beyond putting a thumb on the scale towards guilt, campus-training materials are permeated by highly debatable psychological theories, spawned in part by the Obama administration’s requirement of training about “neurobiological change.”

Emily Yoffe’s blockbuster September article in the Atlantic on “The Bad Science Behind Campus Response to Sexual Assault” uncovered widespread use of a concept called “tonic immobility.” Yoffe explored the pervasive influence of Rebecca Campbell, a Michigan State psychology professor, who claims that as many as half of all sexual-assault victims experience tonic immobility and that this condition, along with other neurological effects that occur during an assault, renders them unable either to resist or to recall the alleged attack accurately later. Campbell has done no empirical research on tonic immobility, and there is no clear evidence that the phenomenon—in which some prey animals go into a type of temporary paralysis when threatened—occurs in humans.

Training at Harvard Law School in 2014 borrowed heavily from Campbell’s ideas about tonic immobility, according to an article by Harvard Law professor Janet Halley. She said the school provides its tribunals with “a sixth-grade level summary of selected neurobiological research,” which claims that rape victims’ trauma causes neurological changes, which can result in tonic immobility. This “can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and ‘flat affect’ [so that her statements] can be ‘[m]isinterpreted as being cavalier about [the event] or lying.’ ” The Harvard training, Halley wrote, is “100% aimed to convince [disciplinary panelists] to believe complainants, precisely whenthey seem unreliable and incoherent.”

A still-pending case led U.S. District Judge John Padova to suggest that the University of Pennsylvania’s training of campus adjudicators is so biased that it may violate Title IX by discriminating against males. In a September 13, preliminary ruling, Padova cited the university’s training materials as a basis for rejecting Penn’s motion to dismiss a Title IX claim in a lawsuit filed by a student the school had found guilty of sexual assault.

Penn used a training document, “Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators,” disseminated by Legal Momentum, a women’s advocacy group that has harshly assailed Betsy DeVos’s efforts to make the handling of campus sexual-assault complaints more fair. The 17 “tips” about accusers include:

“The fact that a complainant recounts a sexual assault somewhat differently from one retelling to the next may reflect memory processes rather than inattentiveness or deceit.” Legal Momentum provides no guidance on how adjudicators should identify “memory processes,” “inattentiveness,” or “deceit.” The implication that inconsistencies are irrelevant to assessing credibility is contrary both to our legal traditions and human experience.

“Victim behaviors during and after a sexual assault may appear counterintuitive to those unfamiliar with sexual assault.” The Legal Momentum document goes on to offer examples suggesting that virtually any conduct or statement by an accuser—resisting or not resisting the alleged assaulter; subsequently contacting or subsequently avoiding the alleged assaulter; testifying emotionally or listlessly; recalling or not recalling events—is consistent with the guilt of the accused.

“False allegations of rape are not common” and “research places the [false rape report] rate in the general population between 2% and 10%.” But this research defines “false” extremely restrictively and excludes a great many cases in which the accused is clearly not guilty of sexual assault and many more in which the available evidence leaves unclear the veracity of the accuser’s account.

As for accused students, Penn’s training material seems designed to sow skepticism about their claims of innocence. The “typical” campus rapist, according to the document, might possess many “apparent positive attributes such as talent, charm, and maturity [and] a deep commitment to community service.” But such traits are “generally irrelevant.” Campus rapists “[p]lan and premeditate their attacks, using sophisticated strategies to groom their victims for attack and isolate them physically.”

Bernstein, the former top Baltimore prosecutor, expressed concern that the Penn training did not meet the “standards” necessary for an “objective process” that could determine the truth of allegations. Most of the tips, he notes, “leave a clear presumption of guilt in the investigator or adjudicator’s mind and provide a victim-centric explanation for otherwise inconclusive, inconsistent, and exculpatory testimony to the exclusion of other factors.” Legal Momentum did not respond to a request for comment.

The training materials and practices that have surfaced from other institutions are equally one-sided.

George Mason’s training plan contains a lengthy section instructing investigators and adjudicators to “avoid an implication of blaming a complainant,” such as by holding “the belief or expressing an opinion that a person who is alleging sexual assault was in some way responsible, whether wholly or in part, for what happened.” Testing an accuser’s truthfulness by asking about her pre-incident behavior with the accused student or why she waited for months to file a report or why she did not go to the police would all constitute blaming the victim. If even considering asking any such questions, the adjudicator is ordered by the training to adjourn the meeting and consult with fellow panelists before proceeding. There is no comparable caution regarding questions asked of accused students.

A University of Texas blueprint for sexual-assault investigations recommends reducing “the number of reports prepared by investigators,” so as to frustrate defense lawyers’ efforts to point out contradictions among an accuser’s statements. This recommendation belies any pretense that the university’s investigators are neutral fact-finders.

The training at Ohio State tells disciplinary panelists that as many as “57 percent” of college males “report perpetrating a form of sexual[ly] aggressive behavior,” among other points seemingly designed to prompt guilty findings. We are aware of no reliable study that makes such a statistical claim. The judge who cited the 57 percent did not say where Ohio State got it, and the school’s full training materials remain sealed.

Cooper Union’s training program describes a “typical” sexual-assault case as the work of a scheming predator: An upper class male who meets a freshman female at a party, accompanies her alone back to her room, and “pours ten shots out of a bottle he pulls out of his backpack” for her to drink. The accuser can later recall nothing, but believes that they had sex.

At SUNY-Plattsburgh, the school’s Title IX coordinator trains the members of sexual-assault hearing panels. In a recent appellate hearing in New York state court, it was revealed that she had misstated the university’s own definition of consent to make a guilty finding more likely, by ruling out “consent by conduct” to sex. SUNY’s lawyer conceded to the appellate judges that the coordinator’s explanations of Plattsburgh policy to the tribunal members were “admittedly confusing.”

The head of a Title IX disciplinary panel at the University of North Carolina, Charlotte, testified in federal court that his institution’s training prompted him to deny the accused student a chance to present friendly, post-incident text messages the accuser sent to him, even though they contradicted her claim that she had come to fear him after they had sex. The panel chair said that the training allowed the tribunal to consider only any messages that “directly answer[ed] the question of consent, to consent to sexual acts.” A federal judge called this exclusion of exculpatory evidence “troubling” and denied the university’s motion for summary judgment.

Such training regimes are the norm across the country, according to four lawyers we talked to and to public statements by two others who have through lawsuits obtained the training materials adopted by many schools. The training materials used by the vast majority of colleges still remain secret.

The new regulations that Betsy DeVos has promised to issue regarding campus proceedings—probably next fall, after publishing proposed rules and considering public comments—will likely continue to require training of some kind, which, at least for investigators, is sensible if it is done well.

Meanwhile, the training materials we have seen are flatly contrary to the Trump administration’s interim guidance for colleges on campus sexual-assault allegations, which provides that “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations may violate Title IX.” DeVos has repeatedly called for colleges to make their processes fair to accused students as well as their accusers.

The time is ripe for some of the accused to file complaints with the Department of Education’s Office for Civil Rights challenging these training programs as violating Title IX’s prohibition on sex discrimination. Such complaints would encourage the Education Department to require that schools make public the contents of their training for sexual assault investigations and tribunals. The accused—many of whom have wrongly assumed that they would be treated fairly and the truth would set them free—would then know what they are up against.

KC Johnson and Stuart Taylor Jr. are the authors of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (2017).

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Clarke’s forceful public criticism is of Chisholm and the so-called “John Doe” investigation that Chisholm has pursued since 2010 against Walker, his staff and virtually every conservative advocacy group in the state.

Clarke, who has been sheriff since 2002 and is running for re-election on Tuesday as the Democratic nominee, has been elected and re-elected with heavy support both from fellow African-Americans and from conservatives.

Clarke said that he agreed with a petition seeking appointment of a special prosecutor to investigate Chisholm. The petition was filed on Sept. 26 by a major Chisholm target, conservative fundraiser Eric O’Keefe.

While Clarke and Chisholm are both Democrats, the iconoclastic sheriff has often clashed with the more liberal Democrats who dominate Milwaukee politics, including Chisholm.

“This will go down as one of the ugliest chapters in Wisconsin political history” Clarke told this reporter. “This is a witch-hunt by a hyper-partisan prosecutor’s office … to go after political adversaries they disagree with.”

Clarke said Chisholm has been evasive responding to whistleblower Michael Lutz’s allegations that Chisholm had exuded improper personal and political bias against Walker in a private conversation in March 2011. Chisholm “didn’t answer the questions,” Clarke said, referring to an Oct. 8 letter in which Chisholm urged Milwaukee Chief Judge Jeffrey Kremers to reject O’Keefe’s petition, which had relied heavily on the questions raised by Lutz’s allegations.

He said he had regarded Chisholm as a “standup guy” years ago when, as a police captain, Clarke worked with then-Assistant District Attorney Chisholm on gun cases.

But as he learned about the nature of the Chisholm’s investigation of the Wisconsin Democratic Party’s political rivals, Clarke said, “I was appalled by some of the stuff that had gone on in the John Doe investigation, and that image I had of Chisholm as a person of unquestioned integrity started unraveling.”

The investigation started in 2010 based on a report by then-Milwaukee County Executive Walker’s staff that reported a minor theft from a charity fund.

Soon, Clarke said, “It became, ‘Let’s see what we can find,’ without any allegation. When you get prosecutors abusing their power, they can take out anyone. I’m a Democrat, but what if he says, ‘Let’s go get Clarke?’ They can ruin your life.”

Clarke stressed what he said had been politically motivated leaks by Chisholm’s office of confidential information about the John Doe investigation to embarrass Republicans including Walker.

“John said his office didn’t originate the leaks,” Clarke said.” Who else would have leaked it? They’re the only ones who had the information. I’m surprised as well that John Chisholm never displayed any concern or disgust that there were leaks coming out of… his own staff.”

Indeed, Clarke added, “You would think he’d shut the investigation down,” it’s so tainted.

Chisholm and his lawyer, Samuel Leib, have not responded to an emailed request for comment.

More generally, Clarke complained, while Chisholm was a good, tough prosecutor before becoming district attorney, he has since “turned more liberal” and soft on crime. “I don’t recognize him,” Clarke said. “He became ‘part of that revolving-door justice system that’s had terrible effects on minority communities.’”

Clarke described himself as a “conservative Democrat, strong on national defense, strong on safe streets. I believe the Constitution protects individuals not groups. I believe in limited government and I believe in the powers of the states.”

His calls for citizens to have guns for self-defense have made him something of a hero to many on the Republican right.

After four years of investigation, Chisholm and his fellow prosecutors have ordered predawn raids by armed officers on the homes of conservative activists; seized their documents, computers and cell phones while their children were getting dressed for school; subpoenaed hundreds of thousands of documents from dozens of conservative groups; routinely obtained gag orders barring targets and witnesses from revealing what has been done to them; won a few minor convictions but failed to find evidence sufficient to charge Walker, indeed any prominent conservative, with any crime.

The issue currently at the heart of the investigation is whether the collaboration of conservative issue-ad groups with Walker’s campaign in a 2012 recall election violated Wisconsin’s campaign finance laws against “illegal coordination,” as Chisholm has suggested.

Chisholm’s conservative targets say that their conduct complied with Wisconsin law, was protected by the First Amendment and was indistinguishable from the conduct routinely engaged in by Democratic candidates, groups and unions.

Both a state and a federal judge have ruled that none of the conduct under investigation appears to have been illegal. Those decisions are on appeal.

Chisholm, who launched the probe of Walker in 2010 and has staffed it with own his assistants, has conducted it since last year in conjunction with Special Prosecutor Francis Schmitz, now the titular head of the investigation, and the state’s Government Accountability Board.

Chisholm’s Oct. 8 letter stressed that Schmitz is not a Democrat and the GAB is required by law to be nonpartisan.

Clarke’s view that Chisholm was a good prosecutor who became “hyper-partisan” is strikingly similar to that of the whistleblower Lutz, the former Chisholm subordinate and decorated former police officer who has accused Chisholm of privately exuding strong personal and political bias against Walker.

“I admired him greatly,” as a friend and a mentor, Lutz has told this reporter, explaining that he was very friendly with both John and Colleen Chisholm because her brother had been Lutz’s police partner and best friend.

But during the bitter partisan battle in the winter of 2011 over Walker’s successful push to break the power of the state’s public-sector unions, Lutz said, “it was surprising how almost hyper-partisan he became.”

During a private meeting in Walker’s office in March 2011, according to Lutz, when he was serving as an unpaid “public interest special prosecutor,” Chisholm ordered him to reject a request by Republican Wisconsin Supreme Court Justice David Prosser that Lutz tape a pre-election video praising a Prosser decision that Lutz admired as good for police.

Chisholm’s reasons, as recalled by Lutz, were blatantly political: “He didn’t want Prosser to decide on” the inevitable legal challenge to Walker’s union-curbing legislation and he “wanted to stay as far away from these Republicans as he can.”

Chisholm also said, according to Lutz, that his wife Colleen, a teachers union shop steward, had been so angry and upset by Walker’s union-curbing as to be repeatedly moved to tears; that she had joined union demonstrations against Walker; and – most important – that Chisholm  “felt it was his personal duty to stop Walker from treating people like this.”

At the same time, Lutz added, many of Chisholm’s unionized staff acted “like an anti-Walker cabal,” with some posting blue fists as anti-Walker symbols on office walls.

Lutz’s reward “for telling the truth,” he has said, was that the Milwaukee Journal Sentinel hunted him down; exposed him as this reporter’s source despite his fear of retaliation and despite his prior role as a source for Journal Sentinel reporters; and dishonestly smeared him as a dangerous drunk with a troubled past.

In particular, the newspaper has repeatedly accused Lutz of making a drunken “death threat” in 2013 against Chisholm and his family.

This despite the facts that Chisholm himself has never claimed publicly that Lutz threatened him; that Lutz has dismissed the “death threat” allegation as a gross distortion of an angry but well-intentioned phone message intended to prevent a suicide; and that the much-decorated former cop, who earned a law degree after being disabled by a gunshot wound, has many admirers in the police department.

Clarke, under whom Lutz worked years ago when Clarke was a Milwaukee police captain, described him on Tuesday as “respected by peers as an active officer” who was “committed to public safety.”

Clarke added that “the Milwaukee Journal Sentinel, having a dog in this fight, went in typical fashion to smear Lutz’s reputation.” He called the newspaper “a wholly-owned subsidiary and a propaganda machine for the Democratic Party in Milwaukee.”

Partisan bias, Clarke implied, may also explain why the Journal Sentinel appears determined to obscure that Chisholm has never specifically denied any of Lutz’s allegations about their March 2011 meeting.

Chisholm’s most recent non-denials came in his nine-page Oct. 8 letter to Judge Jeffrey Kremers, which was made public on Oct. 25.  It rejected in detail various allegations by O’Keefe and his lawyers of criminal abuses of prosecutorial power – without mentioning Lutz or his allegations.

Rather, in apparent allusions to O’Keefe’s heavy reliance on those allegations, Chisholm wrote:

“Supposed ‘new’ information is now offered in the form of statements by persons who have no personal knowledge of which they speak…

“Plain and simple, words like ‘Act 10’ or ‘union’ and phrases like ‘stop Walker’ have never been uttered by me or anyone else in the course of any investigation.

“Those who know my wife know she is not inclined to tears or emotional distress. She is a strong woman with political views of her own, views that play no role in any decision I make as prosecutor.”

While many readers might infer that Chisholm’s letter contradicted Lutz’s allegations, in fact, as Clarke noted, it was carefully drafted to avoid denying a single one of them.

Chisholm’s statement that his wife “is not inclined to tears” did not deny that he told Lutz that she was repeatedly moved to tears by Walker’s Act 10. Nor did Chisholm deny, or even mention, his wife’s alleged “hate for the gov.,” her alleged role in union demonstrations against Walker, or even her role as a teachers union shop steward.

Still more striking is Chisholm’s use of the phrase “in the course of any investigation” to qualify his assertion that he had never said anything like “stop Walker.”

Because Chisholm’s alleged private comments to Lutz were clearly not made “in the course of any investigation,” Chisholm’s letter did not deny them.

This omission is consistent with the DA’s previous non-denials.

When this reporter sought comment in a Sept. 5 email about Lutz’s allegations, the only response came from Samuel Leib, Chisholm’s personal lawyer. He called them a “baseless character assault” that “is inaccurate in a number of critical ways,” adding that “John Chisholm’s integrity is beyond reproach.”

Leib provided no specifics. He also ignored this reporter’s follow-up email the same day requesting that he “identify specifically each of the ‘number of ways’ in which you contend the passage that I sent you is inaccurate.”

Chisholm and Leib have also ignored an Oct. 3 email from this reporter containing 37 questions about Lutz’s allegations.

The closest that Chisholm appears to have come to denying Lutz’s specific allegations may have been on Sept. 10, when Jason Stein of the Milwaukee Sentinel reported that “in a brief interview, Chisholm denied making those comments.”

But the article did not disclose what Chisholm had been asked, by whom, what had been his response, and which (if any) “comments” he specifically denied making.

So far as the public record discloses, the newspaper has never pressed Chisholm for a more specific response to Lutz’s allegations.

Nor is there any public-record evidence that the Journal Sentinel has ever pressed Chisholm for access to the recording of the 2013 phone message in which – the newspaper has repeatedly claimed, based on a vague allegation by Leib – Lutz made a “death threat” against Chisholm and his family.

Neither Chisholm nor the Journal Sentinel has ever suggested a motive for Lutz to lie. He says that his motive has been to protect the freedom of speech – including his own First Amendment right to speak out in favor of Justice Prosser – by telling the truth about the political agenda driving Chisholm.

“I don’t like what Chisholm has done,” Lutz told this reporter, “in regard to political speech that he disagrees with.”

Sheriff Clarke doesn’t like it either. And when he heard Lutz detailing his allegations of prosecutorial bias in recent radio interviews, “I asked myself, ‘What’s in it for Mike Lutz to do this? He did it anonymously.’ I don’t see Mike having any agenda here.”

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I don’t believe that. But I do think that there are two very different Obamas. Both are extraordinarily intelligent, serene under pressure, and driven by an admirable social conscience — albeit as willing to deploy deception as the next politician. But while the first Obama would be a well-meaning failure, the second could become a great president.

An ultraliberal in moderate garb? The first Obama has sometimes seemed eager to engineer what he called "redistribution of wealth" in a 2001 radio interview, along with the more conventional protectionism, job preferences, and other liberal Democratic dogmas featured in his campaign. I worry that he might go beyond judiciously regulating our free enterprise system’s all-too-apparent excesses and stifle it under the dead hand of government bureaucracy and lawsuits.

This redistributionist Obama has stayed in the background since he set his sights on the presidency years ago, except when he told Joe the Plumber that his tax plan would help "spread the wealth." This Obama seems largely invisible to many supporters. But he may retain some attachment to the radical-leftist sensibility in which — as his impressive 1995 autobiography, Dreams From My Father, explains with reflective detachment — he was marinated as a youth and young man.

Obama spent much of his teenage years searching for his black identity. He was mentored for a time by the poet Frank Marshall Davis, a black-power activist who had once been a member of the Communist Party, and who was (according to Obama’s book) "living in the same Sixties time warp" as Obama’s mother, a decidedly liberal free spirit.

While the first Obama would be a well-meaning failure, the second could become a great president.

In college, lest he be "mistaken for a sellout," Obama "chose my friends carefully," according to his book: "The more politically active black students. The foreign students. The Chicanos. The Marxist professors and structural feminists and punk-rock performance poets." After college, his social conscience steered him to become a community organizer and "organize black folks" in Chicago, from 1985 to 1988.

It was then that Obama met the Rev. Jeremiah Wright, who as head of Trinity United Church of Christ did many good things but had a now-famous penchant for America-hating, white-bashing, conspiracy-theorizing, Farrakhan-honoring rants. A central theme of the first Wright sermon that Obama attended — the one titled "the audacity of hope" — was that "white folks’ greed runs a world in need."

After graduating near the top of his Harvard Law School class in 1991, Obama could easily have landed a prestigious Supreme Court clerkship and gone on to a big law firm where partners make well over a $1 million a year. Instead, he followed his social conscience and political ambition back to Chicago, joining a small law firm.

Obama became more than casually acquainted with Bill Ayers, the Weather Underground bomber with whom he served on the boards of two Chicago philanthropic groups. In 1995, Ayers and his wife, Bernardine Dohrn — the same Dohrn who in a blood-curdling 1969 speech had cited the Charles Manson gang of murderers as role models for the Weather Underground — co-hosted a political fundraiser for Obama at their home. By then, the still-unrepentant Ayers had become a respected member of an academic establishment in which far-left views are fashionable.

I dwell on these much-debated associations not because I think that Obama sympathizes with what he has called Ayers’s "detestable acts 40 years ago, when I was 8" or identifies with Wright’s wild ravings. But I do think that Obama has understated (at best) his involvement with Wright and Ayers. And I wonder about the worldview of a man who was so comfortable with such far-left extremists and whose wife, Michelle, asserted earlier this year that America is "just downright mean" and "guided by fear" and that most Americans’ lives have "gotten progressively worse since I was a little girl."

Obama’s voting record as an Illinois and then U.S. senator is not extremist or radical. But it is not a bit bipartisan, either. He has hardly ever broken with his party, and he famously had the most liberal record of any senator in 2007 (although not in 2006 or 2005), according to National Journal‘s vote ratings.

This Obama has endorsed a long list of liberal restrictions on free enterprise that could end up hurting the people they are supposed to help, along with the rest of us: statist remedies for our broken educational system; encouraging unionization by substituting peer pressure and an undemocratic card-check process for secret ballots; raising the wages of women or lowering those of men who have dissimilar jobs that are declared by bureaucrats to be of comparable worth; renegotiating NAFTA; and more.

I wonder how far Obama wants to go down the road suggested by his lament in that 2001 radio interview that the civil-rights movement had failed to engineer "redistribution of wealth" and "economic justice." Would he be content with the moderately redistributive, Clintonesque increase in taxes on high-earning Americans that he proposes now? Or would he end up pushing for confiscatory taxes that could stifle entrepreneurship and job creation?

The best thing for the country would be for Obama to take on the interest groups and to govern from the center.

And would Obama’s declared desire to appoint judges and justices driven mainly by "empathy" for "the powerless," rather than by fidelity to the law, lead to judicially invented constitutional rights to welfare, to ever-more-rigid preferences based on race and gender, and to other novel judicial overrides of democratic governance?

A pragmatic reformer? The pragmatic, consensus-building, inspirational Obama who has been on display during the general election campaign is a prodigious listener and learner. He can see all sides of every question. He seems suffused with good judgment. His social conscience has been tempered by recognition that well-intentioned liberal prescriptions can have perverse unintended consequences. His tax and health care proposals are much less radical than Republican critics suggest.

This Obama has surrounded himself not only with liberal advisers but also with mainstream moderates such as Warren Buffett and former Fed Chairman Paul Volcker. He has won the support of moderate Republicans, including Colin Powell and Susan Eisenhower, and conservatives, including Kenneth Adelman and Charles Fried.

This is the Obama who said in his dazzling 2004 Democratic convention speech that "there is not a liberal America and a conservative America; there is a United States of America." This is the Obama who distanced himself not only from Jeremiah Wright but also — more subtly — from the rest of the racial-grievance crowd in a March 18 speech deploring as "profoundly distorted" the view that "sees white racism as endemic."

The pragmatic Obama is smart enough to know that reforms take root only if they enjoy broad public support and that self-identified conservatives vastly outnumber self-identified liberals in America. He also understands that while we need more-effective regulation, "America’s free market has been the engine of America’s great progress. It’s created a prosperity that is the envy of the world. It’s led to a standard of living unmatched in history." He has said that "we don’t want to return to marginal tax rates of 60 or 70 percent." He wants to expand the armed forces and to send more troops to Afghanistan.

The pragmatic Obama is not just a made-for-the-campaign creation. He was elected president of the Harvard Law Review in 1990 not only because he was one of the most brilliant students but also because the handful of conservatives whose votes helped tip the balance saw him as fair-minded and open to their point of view. And they were not disappointed.

Obama has dipped his toe in the water of questioning Democratic interest-group orthodoxies. He has supported charter schools (while opposing vouchers) and merit pay for teachers; he offended trial lawyers by voting in 2005 to curb unwarranted class-action lawsuits; and last year he questioned whether affluent black children such as his daughters should continue to get racial preferences over more needy whites and Asians.

To be sure, apart from these less-than-bold gestures, Obama’s down-the-line liberal voting record does not give a centrist like me much basis for hope that he would resist pressure from Democratic interest groups, ideologues, and congressional leaders to steer hard to the left.

But I do hope that if Obama wins, the enormity of the economic and international crises facing him will accelerate his intellectual evolution and convince him that simply replacing dumb Bush policies with dumb Democratic policies will only drive the country deeper into the ditch. The best thing for the country would be to take on the interest groups and govern from the center. That would also be the best way for Obama to win re-election and have a truly historic presidency.

This article appeared in the Saturday, November 1, 2008 edition of National Journal.

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What should we learn about Obama’s judgment and fortitude from the fact that he sat passively in the pews for 20 years and gave money and took his children while Wright, his friend and "spiritual adviser," spewed far-left, America-hating, white-bashing, conspiracy-theorizing, loony, "God damn America" vitriol from the pulpit?

This concern is not entirely dispelled by Obama’s shifting explanations, including his mostly admirable March 18 speech about Wright and the issue of race.

Also disturbing is the bleak picture of America painted by Obama’s closest adviser, his wife, Michelle, in highly newsworthy comments, most of which the media have chosen to ignore.

Her stunning February 18 statement that "for the first time in my adult lifetime, I am really proud of my country" did get some attention, but just two mentions buried in The Washington Post and three buried in the news columns of The New York Times. The news columns of both papers, and almost all others, have ignored Michelle Obama’s assertions that this country is "just downright mean" and "guided by fear"; that "our souls are broken"; and that most Americans’ lives have "gotten progressively worse since I was a little girl."

All this from a woman whose own life doesn’t seem so rough: She went from a working-class background to Princeton, Harvard Law School, and a $1.65 million mansion in Chicago. That’s the mansion that the Obamas bought with a little help from their friend Tony Rezko, now on trial on unrelated corruption charges, months after Obama’s 2004 election to the Senate. Meanwhile, Michelle’s salary at the University of Chicago hospitals soared from $122,000 to $317,000.

Many Democrats dismiss the Wright controversy as much ado about "bupkus," as one puts it. Many Republicans see clear proof of unfitness for high office in Obama’s choice of Wright as his spiritual adviser and his equivocations about why he condoned the reverend’s vicious rhetoric for so long.

These confident reactions strike me as resting on partisan double standards. All or almost all of the Democrats who shrug off Obama’s Wright connection would (and should) be apoplectic about any prominent Republican whose 20-year spiritual adviser was known for bashing black people as a group, casting them as villains in paranoid conspiracy theories, glorifying the Ku Klux Klan (as Wright has gloried Louis Farrakhan), and the like.

Indeed, prominent in the chorus of demands last April for the firing of radio host Don Imus, for using racial slurs that seem mild compared with Wright’s sermons, was the voice of Barack Obama himself: "There is nobody on my staff who would still be working for me if they made a comment like that about anybody of any ethnic group."

On the other hand, most of Obama’s Republican critics seem undisturbed by John McCain’s cynical pandering to far-right religious extremists whose rhetoric is so repugnant that McCain denounced some as "agents of intolerance" eight years ago, before deciding that he needed their support.

Aside from courting Pat Robertson and the late Jerry Falwell — who portrayed the 9/11 attacks as divine retribution against abortionists, gays, feminists, and the ACLU (and later semi-apologized) — McCain has characterized as a "spiritual guide" an Ohio megachurch pastor named Rod Parsley, who has compared Planned Parenthood to the Nazis and called Islam a "false religion" that America must see "destroyed." McCain has also welcomed the support of pastor John Hagee of Texas, who has called the Catholic Church a "great whore" that conspired with Hitler "to exterminate the Jews"; called Hurricane Katrina "the judgment of God against the city of New Orleans" because of a planned "homosexual parade" and other "sin"; and advocated a U.S.-Israeli strike against Iran to help launch Armageddon.

To be sure, McCain’s bouts of cynical pandering are much less troublesome than Obama’s enthusiastic embrace for two decades of a minister who was preaching to thousands of black men, women, and children stuff such as: "The government lied about inventing the HIV virus as a means of genocide against people of color." And the 9/11 mass murders were "America’s chickens coming home to roost." And "racism is how this country … is still run." And America is "a Eurocentric wasteland of lily-white lies." And "white folks’ greed runs a world in need."

Nobody believes that Obama shares Wright’s extremist views. His March 18 speech won praise not only from liberals but also from some thoughtful conservatives. They include scholars Abigail Thernstrom and Charles Murray, Wall Street Journal columnist (and former Reagan speechwriter) Peggy Noonan, and law professor Douglas Kmiec, who has endorsed Obama over McCain.

Thernstrom stressed how bold it was for any liberal black politician to deplore as (in Obama’s words) "profoundly distorted" the view that "sees white racism as endemic." This assertion, she explained, "distances him from the entire civil-rights community, which conditions membership on the belief that white racism is endemic."

Similarly impressive were Obama’s statement that blacks need to face "our own complicity in our condition" and his empathy for "working- and middle-class white Americans [who] don’t feel that they have been particularly privileged by their race" and who resent being tarred as prejudiced. Noonan called it "as honest a speech as one in his position could give within the limits imposed by politics."

All true. Far less admirable was Obama’s equating Jeremiah Wright’s hateful public preachings with the private expression by Obama’s own grandmother of "racial or ethnic stereotypes that made me cringe" and with her "fear of black men who passed by her on the street" — a fear that, Obama neglected to mention, has also been expressed by Jesse Jackson. This was an appalling exercise in moral equivalence, aggravated by the crass ignobility of exposing to undeserved public scorn the woman who helped raise Obama.

Also unimpressive was Obama’s facile blaming of Americans’ problems on "the special interests in Washington," greedy corporations, rich people, and "discrimination." Is this tired old Democratic grievance-mongering the fresh new politics that Obama has promised?

And he still has not adequately explained why he didn’t walk away from Wright, or challenge his anti-American tirades, a long time ago. Yes, as Obama has said, Wright has redeeming qualities, including his programs for the needy, homeless, and sick. And yes, the minister’s fiery sound bites are a bit less stark — though still surpassingly ugly — when seen in full context.

But it also appears that Obama shares the unfortunate tendency of many liberals to see far-left extremists (and of many conservatives to see far-right extremists) as kindred spirits. And there may be some resonance between Wright’s angry vitriol and Michelle Obama’s bleak vision of America.

Most important, perhaps, Obama’s assertion that "I can no more disown [Wright] than I can disown the black community," together with his acknowledgment of "shocking ignorance" among many blacks, implies what other Wright apologists have said more directly: White-bashing, far-left rhetoric, and paranoid racial conspiracy theories are commonplace in many black churches and among many otherwise sensible black people.

Obama won’t disown these people, because that would be inconsistent with his lifelong quest to belong to the black community, movingly detailed in his 1995 memoir, Dreams From My Father. And because he needs their votes.

All of this is understandable. But would the same Obama who lacked the fortitude to break with Jeremiah Wright be a good bet, if elected, to take on his party’s own special interests? To break, when circumstances warrant, with the across-the-board liberal orthodoxy he has long embraced? Curb entitlement spending? Temper excessive affirmative-action preferences? Tame the lawsuit lobby? Assign the teachers unions their share of the blame for what Obama calls "crumbling schools that are stealing the future"?

Could he get tough, when necessary, with fashionably leftist foreign dictators, highly politicized international institutions, and sanctimonious European America-bashers? Or would he instead heed such soothing platitudes as his wife’s February 14 assertion that "instead of protecting ourselves against terrorists," we should be "building diplomatic relationships"?

I have a hard time believing at this point that Obama is up to these tasks. I would love to see him prove my doubts wrong. And, of course, he does not have to be flawless to be the best candidate. He just has to show that his flaws are less crippling than the all-too-apparent shortcomings of Hillary Rodham Clinton and John McCain.

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But some Clinton-bashing conservatives have reacted rather differently to the alleged grand jury perjuries, lies to the FBI, and obstruction of justice for which I. Lewis (Scooter) Libby, Vice President Cheney’s former chief of staff, stands indicted.

These conservatives go beyond claiming that the evidence that Libby lied is weak — which is fair game, albeit unpersuasive (in my view) — to trivializing any cover-up as not very serious anyway. They remind me of the many Democrats who trivialized Clinton’s multiple perjuries and suborning of perjury as mere "lying about sex."

These days, the leader of the who-cares-about-perjury pack is The Wall Street Journal’s editorial page — the "Daily Diatribe of the American Right," as it was called in the headline of a 1989 American Lawyer piece (by me).

In 1998, The Journal saw criminal cover-ups — even of matters that were not themselves crimes — as a big deal. "The latest Clinton scandal involving Monica Lewinsky is titillating because of sex," The Journal editorialized then, "but it derives its legal and political importance from the issues of perjury and obstruction of justice."

Back then, other respected conservatives — Mary Matalin and William Kristol, for example — were even more emphatic about what Matalin called Clinton’s "perjury, suborning perjury, obstruction of justice, conspiracy." They have a far more dismissive view of the evidence of high-level lies underpinning the indictment of Libby and the near-indictment of Karl Rove.

"I now think the whole prosecution is absurd," Kristol said on Fox News on April 9. Dismissing the perjury charge against Libby as "technical" and "dubious," Kristol accused Special Prosecutor Patrick Fitzgerald of "a politically motivated attempt to wound the Bush administration."

Matalin, who worked in Cheney’s office with Libby, has understandably vouched for his character. But she has also said this: "I think there’s something about these prosecutions where it’s become standard operating procedure that somebody just gets tagged with something … to justify the existence of [the investigation]."

The Journal stands out from other apologists. Its June 14 editorial — a tour de force of distortion not unlike many a liberal New York Times editorial — is worth detailed dissection. While celebrating Rove’s nonindictment, the editorial asserts that the evidence against Libby "comes down to nothing more than the fact that Mr. Libby’s memory of conversations with three reporters differs from that of the reporters themselves."

False. In fact, Libby’s sworn grand jury testimony and earlier statements to the FBI are contradicted not only by the three reporters but also by the testimony of at least two White House officials (evidently including Cheney), two CIA officials, and an undersecretary of State — not to mention the introduction of Libby’s own handwritten notes and other documents.

Some background: Fitzgerald’s well-documented theory is that in June and July of 2003, as part of a campaign to discredit Bush critic Joseph Wilson, Libby, Rove, and perhaps other officials leaked the identity of Wilson’s CIA-official wife, Valerie Plame, to several reporters.

Wilson had made the highly publicized claim (misleading, we now know) that his oral report to the CIA on a CIA-sponsored trip to Niger in March 2002 gave the lie to Bush’s assertion that Iraq had sought "uranium in Africa." When Cheney, Libby, and other White House officials learned that Wilson’s wife worked for the CIA and had helped Wilson get the Niger assignment, they seized the opportunity to deprecate him as a lightweight on a boondoggle arranged by his wife.

All fair game — except that (as Fitzgerald alleges) Plame’s identity as a CIA official happened to be classified. For this reason, the leaking of her role to the media infuriated the CIA, which demanded a criminal investigation and thereby ignited a major scandal. Libby and Rove tried to contain it by telling White House spokesman Scott McClellan (who told the world) that they had had no involvement in the Plame leak.

Lying to McClellan and the public is not a crime. But Libby is charged with the felonies of lying to the FBI on October 14 and November 26, 2003, and to the grand jury on March 5 and 24, 2004, to cover up the White House’s role in the leak.

Specifically, Libby testified falsely that it was Tim Russert of NBC News who had first told him, on July 10, 2003, that Wilson’s wife worked at the CIA, and that it was this gossip that he (Libby) had discussed with Time reporter Matthew Cooper on July 12, 2003.

That testimony is, as noted above, contradicted not only by Russert (who denies mentioning Plame to Libby), Cooper, and then-New York Times reporter Judith Miller but also by at least five administration officials. Four of them discussed Plame’s CIA role with Libby about a month before Libby supposedly heard of it from Russert.

Libby also knew, Fitzgerald has alleged, that Plame’s CIA role was a classified national security secret before he discussed her with Cooper (on July 12, 2003) and Miller (on June 23 and July 8 and 12, 2003). Libby’s main defense is that his testimony innocently mixed up who had told him what when during an extremely busy time — including his imaginary discussion of Plame with Russert.

Fitzgerald seriously considered charging Rove, also, with lying. Rove initially told the FBI and the grand jury that he had not disclosed Wilson’s wife’s identity to any reporter. This was later belied by the discovery of an e-mail in which Rove told another White House official that he had discussed Plame with Cooper. But earlier this month — after Rove had testified four more times to portray his initial story as an innocent memory lapse — Fitzgerald decided not to prosecute him. The evident reason was the difficulty of disproving Rove’s defense beyond a reasonable doubt.

Now compare the facts to The Journal’s spin:

Spin: "The Rove decision also finally discredits the accusation that there was some grand White House conspiracy to smear Mr. Wilson. Mr. Fitzgerald has brought no charges concerning the original leak, which means that there was no underlying crime."

Fact: It’s fair to say that discrediting the slippery Wilson was no "smear." But under the Justice Department’s long-standing interpretation of the 1917 Espionage Act, Fitzgerald could have prosecuted Libby for deliberately leaking classified information (Plame’s CIA role).

To be sure, Fitzgerald has not alleged that Plame was a "covert agent" as defined by the more narrowly drafted Intelligence Identities Protection Act of 1982. But the Justice Department — especially in this administration — sees any deliberate leak of classified information as punishable by up to 10 years in prison under the 1917 law.

Fitzgerald has hinted that he did not charge Libby under the broadly worded but rarely used 1917 law for fear of setting an unwise precedent. (So it would have.) Whatever Fitzgerald’s reason, it is disingenuous for The Journal — which has not objected to the Bush push to use the 1917 law against leakers — to claim that "there was no underlying crime."

Spin: "And now we know that even the relentless Mr. Fitzgerald has concluded that the charge that Mr. Rove criminally blew Ms. Plame’s CIA cover is false."

Fact: Not exactly. It’s clear that Rove helped blow Plame’s cover. Whether he could have been charged with doing so criminally depends on whether he knew that Plame’s identity was classified, which is unclear.

Spin: "In the end, it seems Mr. Fitzgerald was trying to trap Mr. Rove over the minor matter of his failure to remember a conversation with … Cooper."

Fact: Whether the false Rove testimony was an innocent "failure to remember" — or a lie — will be forever disputed. Fitzgerald’s decision not to prosecute means only that he was unsure whether he could prove it a lie beyond a reasonable doubt.

Spin: "Mr. Fitzgerald will also have to prove why a seasoned lawyer such as Mr. Libby had a motive to lie if there was no underlying crime to cover up."

Fact: Proving a motive to lie will be a snap. Libby surely knew when he testified of the Justice Department’s classified-leaks-are-crimes doctrine. He knew that Bush had said on September 30, 2003: "If there is a leak out of my administration, I want to know who it is. If the person violated [the] law, the person will be taken care of." He knew of McClellan’s statement that Libby and Rove had told him (falsely) that they were "not involved" in the Plame leak.

Finally, the famously loyal Libby knew that any revelation that he had leaked Plame’s identity after being told about her by Cheney — who had been intensely interested in discrediting Wilson — could mean big political or even legal trouble for the vice president.

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Gonzales, who launched a major investigation late last year into such leaks, claimed in a May 21 ABC News interview that Congress has made a "policy judgment" that in some circumstances journalists should be prosecuted for publishing classified information.

This assertion is misleading at best. The 89-year-old espionage law to which Gonzales was mainly referring was not intended to prosecute anybody for publishing anything and has never been so used. This is an administration that has not hesitated to leak classified information that makes it look good — but calls it criminal for others to publish leaks that make it look bad.

Its most bitter complaints have been aimed at the Pulitzer-Prize-winning disclosure by The New York Times on December 16 of President Bush’s previously secret, warrantless eavesdropping program. Some serious scholars see that program as violating criminal provisions of the Foreign Intelligence Surveillance Act. I don’t, because the murkiness of the legal issues may absolve Bush of criminal intent.

But exposing arguably illegal presidential activities is what the First Amendment freedoms of speech and press are all about. Bush is a shameless demagogue for denouncing as a "shameful act" the exposure of his own circumvention (if not violation) of FISA.

Someone should tell Gonzales and Bush that the relevant congressional "policy judgment" here — one shared by the Constitution’s Framers — is that the president is not a law unto himself.

Does Gonzales think that Bush has the power to nullify not only FISA but also the First Amendment? Maybe he does. This is, after all, the same Gonzales who as White House counsel was content for two years with a then-classified Justice Department opinion advising that the president could nullify criminal laws against torture by ordering indiscriminate torture of anyone, anywhere, any time, for any reason that Bush associates with the war on terrorism.

Gonzales distanced himself from that indefensible memo only after it had been leaked to the press and repudiated by the Justice Department itself. Will he prosecute those who leaked it? Those who published it? And will he prosecute columnist Robert Novak, who first published the high-level White House leak of Valerie Plame’s classified identity as a CIA operative?

When it comes to leaking classified information, this administration has no standing to preach, let alone prosecute.

We have seen strong evidence that I. Lewis (Scooter) Libby and Karl Rove leaked Plame’s classified CIA role to reporters, in pursuit of Dick Cheney’s interest in discrediting criticisms by Plame’s husband, Joseph C. Wilson. The idea was to show Wilson to be a lightweight trading on his wife’s CIA connections. (He was. But that’s another story.)

Under the Gonzo doctrine, as I will call it, such leaks are felonies if the leakers and any co-conspirators knew that the information was classified. Libby knew, according to Special Prosecutor Patrick Fitzgerald. (Nobody has claimed — yet — that Cheney knew, or that he approved the Plame leak.)

Libby is not under indictment for leaking. The apparent reason is that Fitzgerald has too much sense to buy the Gonzo doctrine. Rather, he has charged Libby with lying to the FBI and to a grand jury to cover up the Plame leak. Libby’s main defense is failure of recollection.

Apart from the Plame leak, we now know that Bush authorized Cheney to authorize Libby to leak misleadingly one-sided classified intelligence to reporters to rebut claims that Bush had misled the public about Iraq’s nuclear program. Bush defenders stress that this was legal because the president has power to declassify information, even in such an irregular fashion. So he does. But his hypocrisy is no less rank.

All administrations have done selective leaking. And all have complained of leaking by their critics. The Nixon and Reagan administrations went so far as to prosecute government officials for leaking classified information to the media. They included Daniel Ellsberg, leaker of the Pentagon Papers, whose case was thrown out because of government misconduct.

Those prosecutions were at best problematic. While some leaks may have done real damage to national security, most — including the Pentagon Papers — have not. The executive branch classifies vast amounts of information to avoid political embarrassment, not (or not only) to protect national security. And leaks have for decades been both essential to informed political discourse on defense issues and an indispensable check on executive branch abuse.

Now the Bush-Gonzales Justice Department is pushing to go beyond anything attempted under Nixon or Reagan by seeking to engineer a legal precedent that would clear the way for the first prosecutions of journalists for publishing classified leaks in our history. The case is the pending prosecution of former pro-Israel lobbyists Steven Rosen and Keith Weissman under the 1917 Espionage Act for giving classified information to reporters (as well as to an Israeli diplomat).

Unlike the targets of previous leak prosecutions, the two lobbyists were not government employees and thus had not sworn to protect classified information. They were private citizens who had obtained the information from leakers and passed it along. That’s what reporters do. And the freedom to lobby — "petition the government" — is right there in the First Amendment alongside the freedoms of speech and press.

The main Espionage Act provisions that officials brandish against journalists (18 U.S.C. sections 793 and 794) are worded so broadly as to make it a felony, carrying a 10-year prison term, to disclose (or even to possess) any "information relating to the national defense" that "could be used to the injury of the United States or to the advantage of any foreign nation."

But these provisions cannot be read literally, or they would clearly violate the First Amendment. Such a sweeping, never-before-enforced ban would also be void for vagueness, in lawyerspeak, because it does not give citizens fair notice of what is prosecutable and what is not.

In addition, contrary to the Gonzo doctrine, the 1917 law was never intended by Congress to authorize prosecution of journalists. President Wilson’s initial proposal had a section explicitly making it a crime for the media to publish information said by the president to be potentially "useful to the enemy." Congress soundly rejected this as "an instrument of tyranny," in the words of one critic.

There is, to be sure, a more specific provision, added in 1950, that makes it a crime to "publish … any classified information … concerning the communication intelligence activities of the United States." (18 U.S.C. 798(a)(3))

That language fits the Bush eavesdropping program and thus provides the most plausible basis for prosecuting The New York Times and others who have published leaks about it. But section 798(a)(3) appears to run afoul of the First Amendment "overbreadth" doctrine, which the Supreme Court has developed to strike down speech restrictions broader than necessary to protect the government’s legitimate interests.

Aside from its importance to public debate, the December 16 article in The Times about the Bush eavesdropping program told our enemies nothing new about how we spy on them, except that the government sometimes bypasses FISA’s judicial-approval requirement.

Advocates of prosecuting journalists argue that it is up to the president, not the press, to decide how much secrecy is necessary to protect our security. So it is — in the first instance. Presidents can require government employees to sign confidentiality agreements. They can fire leakers. In aggravated cases, they can prosecute leakers.

But if they can also jail journalists and other private citizens who publish or pass along leaks, we will have taken a long step toward tyranny.

What would the courts do with such a prosecution? The legal precedents are sparse. The Supreme Court spurned Nixon’s 1971 effort to enjoin publication of the Pentagon Papers in advance. But the nine separate opinions in the case are less than reassuring. As Boston lawyer-author Harvey Silverglate writes, "Let’s not kid ourselves: five of the nine justices would have approved of criminal prosecution of the newspapers in the Pentagon Papers case."

Still, I’d be surprised if even Bush and Gonzales are foolish enough to prosecute journalists. Notwithstanding the unpopularity of the media, that might drive Bush’s approval ratings below 30 percent for the rest of his already blighted term.

There is not much chance that a New York or Washington jury would vote unanimously to convict in such a case. And if there were a conviction, the case would end up in a Supreme Court that seems sick and tired of this administration’s contempt for law.

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The antihero gallery includes self-styled whistle-blower Joseph Wilson; White House officials including Karl Rove and Lewis (Scooter) Libby; the leadership of The New York Times; and those Democrats who made light of Bill Clinton’s serial perjuries and now gloat at the prospect of a crippled president.

One person who may or may not emerge with a deservedly enhanced reputation is Patrick Fitzgerald, the special counsel running the investigation. I wonder whether he has been infected by special-prosecutor disease — that subspecies of overzealousness that seems to afflict almost all criminal investigators when they’re given complete independence and a mandate to crack one big case. But I hope that Fitzgerald will show that he knows the difference between technically prosecutable peccadilloes and real criminality.

Let’s skip over the endless argument about how badly President Bush, Vice President Cheney, and their aides hyped the deeply flawed intelligence available to them, as to Saddam Hussein’s weapons in general and as to the famous 16 words in Bush’s January 28, 2003, State of the Union address in particular: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."

Suffice it to say that Bush and Cheney appear to have believed that Saddam was a serious threat and had probably sought uranium from Africa (as British intelligence still claims); that they exaggerated the evidence in their effort to sell the war they wanted; and that historians will long debate how culpable those exaggerations were.

The hollowness of former diplomat Joseph Wilson’s bid for glory is more straightforward. His campaign to brand Bush’s 16 words as deliberately deceptive would have been noble had he been right. But he was wrong, and deceptive to boot.

Wilson implied in his now-famous July 6, 2003, New York Times op-ed and in his appearance on NBC’s Meet the Press that his own investigative trip to Niger for the CIA, in early 2002, had given the administration proof that Iraq had not sought uranium from Africa. But his not-very-informative March 2002 report to the CIA showed nothing of the kind. And contrary to many a news article, even Wilson’s op-ed claimed only that Iraq had not purchased uranium in Niger. He did not explicitly assert that Iraq had not "sought" uranium there.

Indeed, Wilson’s March 2002 report tended to bolster intelligence reports that Iraq had sought uranium in Niger. Or so concluded the Senate Intelligence Committee in July 2004. It said that Wilson had reported speaking with a former prime minister of Niger who "believed the Iraqis were interested in purchasing uranium," in part because an Iraqi delegation had suggested "expanding commercial relations." Uranium is Niger’s only major export.

Wilson, who worked in the 2004 Kerry campaign, also made what turned out to be misleading suggestions to reporters in 2003 that he knew certain documents about Niger to be forgeries (in fact, he had never seen them) and that his wife had nothing to do with the CIA’s decision to send him to Niger to investigate (in fact, she had strongly recommended him).

In short, the evidence that Wilson deliberately misled the media is considerably stronger than the evidence that Bush deliberately misled the nation with his uranium-from-Africa line.

Small wonder, then, that White House officials, including Rove and Libby, were appropriately eager to discredit Wilson, who had put a superficially appealing face on the widespread claims that Bush had "lied" about Iraq’s weapons and supposed nuclear program.

But officials went about discrediting Wilson in the manner of petty, score-settling political hacks. Instead of emphasizing that Wilson was biased and his story full of holes — as it was — the White House launched a media campaign to discredit him as a nonentity on a boondoggle arranged by his wife. This despite the fact that the decision to send Wilson had been made by other CIA officials, apparently because of his valuable experience as a former diplomat in Niger and former ambassador to neighboring Gabon with good contacts in Niger.

Did the participants in the White House media campaign know that Wilson’s wife had been an undercover operative abroad, and that disclosure of her CIA connection could jeopardize her career and perhaps even endanger the lives of her sources abroad? If so, they may have violated the 1982 Intelligence Identities Protection Act. But I find it hard to believe that Rove or Libby was that vicious. It seems more likely that they assumed that Wilson’s wife — then working as an analyst on weapons of mass destruction — had always been an analyst, and that her role could be publicized without damage.

It was at best reckless, however, to tell reporters that Wilson’s wife worked at the CIA without first making sure that she had never been undercover abroad. After all, her diplomat-husband had been stationed in many foreign countries. Even columnist Robert Novak took the trouble to check with CIA spokesman Bill Harlow before writing (on July 14, 2003) that Wilson’s wife had suggested him to the CIA for the Niger trip. Harlow has reported telling Novak — in the strongest way he could without revealing classified information — that Wilson’s wife had not been the official who authorized the trip and that her name (Valerie Plame) should not be used. Novak, most unwisely, used it anyway.

News reports also suggest that the officials conducting the media campaign against Wilson may have had reason to know that his wife’s CIA employment was sensitive or classified, as indicated by a State Department memo circulated on July 7, 2003, on Air Force One, and perhaps elsewhere. This would not necessarily put them in violation of the 1982 law, which requires proof that the defendant intentionally outed a covert agent. But it would be an especially scummy violation of federal regulations and policies. And under a broad reading of a 1917 espionage statute, it could be seen by a very aggressive prosecutor as a crime.

Beyond that, it was at best dishonorable for Rove and Libby to send White House press secretary Scott McClellan out to tell the world that they’d had nothing to do with leaking Wilson’s wife’s identity. When asked on October 10, 2003, whether Rove or Libby (or a third official) had "told any reporter that Valerie Plame worked for the CIA," for example, McClellan responded: "Those individuals assured me that they were not involved in this."

That, we now know, was highly misleading. When pressed by a follow-up question to specify what they were "not involved in," McClellan said: "The leaking of classified information." Whether that much was true remains to be seen.

It also remains to be seen whether Rove, Libby, or other officials have perjured themselves or obstructed justice. But this much seems clear: Rove was willing to see Time reporter Matt Cooper (almost) sent to jail to protect him, and Libby was willing to see New York Times reporter Judith Miller sit in jail for at least 85 days, until the officials were cornered by lawyers seeking direct, personal waivers of the promises of confidentiality that Cooper had made to Rove and that Miller had made to Libby. Long before then, Rove could easily have gotten Cooper off the hook, and Libby could easily have gotten Miller off the hook, by publicly stating that they had spoken to the reporters about Wilson’s wife and by urging the reporters to testify.

(Libby claims, implausibly, that he had thought Miller had gone to jail to protect someone else.)

Much ink has been spilled about the sins of The New York Times in all this. To recap just one point: After clamoring hyperbolically (as did other newspapers) for a tough, independent investigation into whether the White House had outed a CIA operative to undermine Wilson’s credibility "and thus stifle dissent over Iraq policy," The Times had little standing to complain when Fitzgerald did the only thing he could do to crack the case: subpoena reporters.

Still, Fitzgerald should have shut his investigation down long ago — and thereby avoided the dangerous precedent that his subpoenas have set — unless he had evidence that the leakers knew that Plame’s status was highly sensitive. And the prosecutor should now avoid the even more dangerous precedent that he will set if he brings indictments based on the theory (floated in some news reports) that the 1917 espionage law makes every leak of classified information a crime.

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Consider the Bush administration’s massive counterattack on Richard Clarke, using the same basic M.O. as in its previous trashing of such critics as former Treasury Secretary Paul O’Neill and former diplomat Joseph C. Wilson IV. Choosing the March 22 Rush Limbaugh show as the forum for his opening salvo, Vice President Cheney gave a deceptive answer to the very first question. Asked why the Bush administration had kept Clarke "on the counter-terrorism team when you all assumed office in January of 2001," Cheney said: "He was moved out of the counter-terrorism business over to the cyber-security side of things." But as Cheney well knew, Clarke was kept on as the White House’s top counter-terrorism official until well after the September 11, 2001, attacks. Cheney added that Clarke "wasn’t in the loop, frankly, on a lot of this stuff" — a statement so misleading that National Security Adviser Condoleezza Rice later had to correct it.

White House officials implied for almost a week that Clarke may have fabricated a September 12, 2001, conversation with President Bush in the White House Situation Room. According to Clarke’s book, Against All Enemies, Bush urged Clarke repeatedly and "testily" to look for evidence linking Saddam Hussein to the attacks, despite Clarke’s assurance that there was no real evidence of any Iraq-Qaeda links. Administration officials said that Bush did not recall this conversation and that there was no record placing him in the Situation Room that day. But, in fact, Bush did urge Clarke to look for an Iraq connection, as Rice eventually admitted.

Meanwhile, Deputy Secretary of State Richard Armitage contradicted Rice’s own claim — a response on the merits, at least — that the administration had developed a strategy including "sufficient military options to remove the Taliban regime" in the spring and summer of 2001.

The trashing of Dick Clarke was not in the same league as the Clinton White House’s smearing of Paula Jones ("drag a dollar bill through a trailer park"); Monica Lewinsky (the "stalker"); Kenneth Starr (the politically motivated, sex-obsessed, riverside hymn-singer); and the rest of the "vast right-wing conspiracy." But the Clarke episode exemplifies the sad state of our political discourse at a time that cries out for dispassionate analysis of how to stop the next 9/11, not partisan finger-pointing over the last one. The closer that critics come to revealing unwelcome truths — whether about President Clinton’s perjuries or about the Bush team’s initial imperviousness to warnings about the urgency of the terrorist threat — the uglier the attacks become.

This is not to adopt the purist view that critics’ credibility and motivations should be off-limits. Counterattacking attackers is fair game, especially when the critic’s rhetorical recklessness, personal animus, partisanship, and self-glorification are as transparent as Clarke’s. These qualities detract from his book’s otherwise cogent presentation of the case that the Bush team was irrationally obsessed with Iraq and (as I am increasingly inclined to fear) the invasion of Iraq has made America less safe.

But the best response even to overheated attacks would be honest and factual rebuttal, not the blunderbuss demonization that has become standard-operating procedure. A dollop of dignity would also be welcome. White House press secretary Scott McClellan’s sneer at "Dick Clarke’s American grandstand" was clever but not exactly presidential.

Lest I seem incorrigibly naive, I note that the assault on Clarke was far from being a political triumph: After 10 days of thrust and counterthrust, Bush was so damaged that he was forced to cave in abjectly to demands that Rice give sworn public testimony to the bipartisan commission investigating the September 11 attacks. In this regard, Senate Majority Leader Bill Frist did Bush no favor when he upped the ante by confusing spin with perjury and suggesting that Clarke had lied under oath.

The president and his executive privilege just might have taken less of a beating had the response to Clarke gone more like this:

Richard Clarke served his country for many years with extraordinary dedication. But it is deeply irresponsible for him to create the false impression that if only we had listened to him, this administration could have prevented the September 11 attacks. Even Mr. Clarke himself admits — very quietly — that immediate adoption of every one of his recommendations would have made no difference. His claim that we did not make Al Qaeda our most urgent priority before 9/11 adds little to the president’s own statement in December 2001 (to The Washington Post), that he did not feel a "sense of urgency" about Al Qaeda then and was more focused on other threats.

Mr. Clarke credits the Clinton administration with worrying more about Al Qaeda than we did. But worrying is not a policy. Despite the first attack on the World Trade Center in 1993 and the bombings of our East Africa embassies in 1998 and the USS Cole in 2000, the Clinton administration took no effective action. It blew up some empty tents in Afghanistan and retreated under fire from Somalia. We in the Bush administration wish that we had moved more rapidly against Al Qaeda. But by September 11, we had — as Mr. Clarke himself has previously stated — authorized a "fivefold" increase in the CIA’s covert action budget "to go after Al Qaeda" and "changed the strategy from one of rollback with Al Qaeda over the course of five years … to a new strategy that called for the rapid elimination of Al Qaeda."

Mr. Clarke has said that "the reason I am strident in my criticism" of almost everything President Bush has done is his strong (although previously undisclosed) view that one of those actions — the liberation of Iraq — has hurt the war against terrorism. Mr. Clarke is entitled to his opinion. But disagreement with our post-9/11 Iraq policy cannot justify distortion of our pre-9/11 Qaeda policy. And we are convinced that he is wrong about Iraq — as are many independent analysts and some former Clinton administration officials who are more expert on strategic issues than Mr. Clarke is. He virtually ignores the clear benefits of removing the most dangerous tyrant in the world’s most dangerous region, a man who had used chemical weapons against his own people and sought far more devastating nuclear and biological weapons that might someday be used against America.

Mr. Clarke’s attacks are so riddled with inaccuracies and exaggerations, so inconsistent with his own prior statements, and so clearly designed to help the president’s political adversaries as to cast doubt on his credibility and motivations. Consider his claim that during a January 2001 briefing on Al Qaeda, Condi Rice’s "facial expression gave me the impression she had never heard the term before." In fact, she had used the term, quite publicly. He could have looked it up.

Perhaps Mr. Clarke’s judgment has been warped by resentment of Rice and others who denied him the higher-level status that he considered his due and failed to stroke his legendary ego. Perhaps he sensed that a strident Bush-bashing book would sell more copies and be more helpful to John Kerry’s campaign than a thoughtful and sober critique. In any event, we would respect him more if he had voiced his objections on Iraq internally and then resigned in protest. Instead, he has waited until the heat of the presidential campaign to launch a vitriolic attack calculated to damage the president and enrich himself. This is not a stand on principle. It is partisan warfare. And it is a breach of trust.

Various administration officials have made most or all of these points at one time or another. But they have devalued their case by mixing in deceptive diversions, overheated suggestions that Clarke lied under oath, and other Carvillean drek. It hasn’t worked very well. They should try a different approach.

…

Correction: European Commission President Romano Prodi was misquoted in my March 20 column (and elsewhere) in reliance on an erroneous account by Agence France-Presse. What Prodi actually said, in an interview with the newspaper La Stampa, was: "It is clear that force alone cannot win the fight against terrorism" 

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