Watergate-era ‘non-denial denial’ is back in fashion

It’s back in full force. The non-denial denial. It is the kind of statement that seems clear and direct in countering allegations, but on careful review turns out not to say much at all. This kind of statement leaves wiggle room, meaning it wouldn’t be explicitly false if the allegations being denied are in fact true.

The phrase is credited to Washington Post editor Ben Bradlee, who coined the term as the White House responded to allegations about the Watergate break-in in the early 1970s. It was brought into the common lexicon in the movie of that era, “All The President’s Men”, in a scene where Jason Robards (playing Bradlee) characterized for Bob Woodward and Carl Bernstein the Nixon administration’s evasive answers.

{mosads}Concrete examples of the past: “I am not a crook,” said Richard Nixon. True perhaps in his mind, but those doing his bidding certainly were. And needless to say, that (catch)phrase never actually responded to the questions being asked by the press or the public.

Or take President Bill Clinton: “I did not have sexual relations with that woman.” It depends on what you consider “sexual relations,” doesn’t it?

And so we bring it to the present day in the form of Roy Moore. His “responses” to innumerable allegations of sexual misconduct with minors and others have been classic (and even predictable): The allegations were “unsubstantiated,” ”unproven” and “fake.” In other words, he said nothing. He also, in an interview with Sean Hannity, left open the possibility that, as the women alleged, he had in fact molested them, saying he did not “generally” date girls 15 years younger than him, and adding “I’m not going to dispute anything but I don’t remember anything like that.”

Then, when Hannity finally put the wood to him, Moore issued an unequivocal statement: “I adamantly deny the allegations of Leigh Corfman and Beverly Nelson, did not date underage girls, and have taken steps to begin a civil action for defamation.” Which led to more questions and potential evidence.

Most recently, Moore flat out denied the women’s allegations of sexual misconduct, saying: “They’re not only untrue, but they have no evidence to support them.” And with Roy Moore having taken his denial up a notch, President Trump decided to whole-heartedly support Moore’s candidacy for the Senate — saying “If you look at what is really going on and you look at all the things that have happened over the last 48 hours, he totally denies it. He says it didn’t happen. And you know, you have to listen to him also.”

But put that aside and let’s discuss the non-denial denial of the modern era. It has changed. It no longer means not quite answering the question and then retreating. Our continuous news cycle and social media doesn’t allow that luxury. So the spin doctors of today seem to allow their clients to go farther — to the edge, maybe even over the edge.

Public figures are in the hands of publicists and media consultants who use different tactics to try to get over in the face of scandal. They play by their own rules of engagement because their goal is singularly focused and often tunnel-visioned — to get their client to the next hurdle.

Let’s look at it, though, in the strictly legal context. In a civil matter, “I deny” does not necessarily mean that the thing did not happen. Indeed, a defendant may well issue a “general denial,” putting the issue into play, perhaps even requiring the plaintiff to prove his case. But lawyers and judges know it does not actually mean the defendant did not do what he is being accused of.

In a criminal case, it is a little more complicated. A defendant never has to deny — the prosecution must prove the defendant did it. And if one is a defendant at trial or a target choosing to testify at the grand jury, or a witness at any stage of a proceeding, “I deny” (having done “X”) may possibly not constitute perjury, even if he actually did X and there is sufficient proof of it — depending on where and how carefully the question is crafted. However, such a denial may still likely constitute an obstruction of justice, particularly if made in a federal court or grand jury.

So how do we get any of the real truth rather than insipid pablum lined by a patina of sincerity? And who do we believe? Are we left at the end of the day more willing to be sympathetic to the alleged perpetrator and his side of the story, or do we think he’s been playing us — playing to our willingness to accord benefit of the doubt?

The public has understandably become dubious of public denials by public figures who are accused in the context of public scandals. Publicists will typically tell a client that they have to say “something.” Oftentimes, though, it may be far better to say nothing other than “He intends to fully cooperate with the process,” rather than say the type of thing the public (and, indeed, investigators or prosecutors) can see right through. Ben Bradlee had it just right.

Joel Cohen is a former state and federal prosecutor He practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications and is the author of “Broken Scales: Reflections on Injustice.”

Dale J. Degenshein is a special counsel at Stroock & Stroock & Lavan LLP.