The hot potato of interpretive responsibility

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Below is a guest post by Elisabeth Camp.

Mark posted part of a particularly linguistically juicy exchange from James Comey’s recent Senate testimony, in which Senator Risch “drilled down” on the “exact words” attributed by Comey to Trump, noting that Trump merely expressed his “hope” that Comey could “can see [his] way clear to letting this go, to letting Flynn go.” Risch then went on to suggest, without saying, that speakers can only be held legally accountable for what they explicitly threaten or claim, and not for mere expressions of hope:

Risch: He said, ‘I hope’. Now, like me, you probably did hundreds of cases, maybe thousands of cases, charging people with criminal offenses and, of course, you have knowledge of the thousands of cases out there where people have been charged. Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where they said or thought they hoped for an outcome?

Comey: I don’t know well enough to answer. And the reason I keep saying ‘his words’ is I took it as a direction.

In a follow-up post, Mark linked to a discussion of a 1995 ruling by the National Labor Relations Board, which though not a criminal statute, held that the mere statement of an employer’s “hopes” can indeed have a “chilling effect” and “interfere with [an employee’s] exercise of rights.” But there are further grounds for challenge as well, including workplace law on sexual harassment.

As several commentators have noted (e.g. here and here), Trump’s expression of “hope” and request for “loyalty” are eerily reminiscent of predatory sexual advances. And the ensuing responses to Comey’s testimony have echoed the ‘gaslighting’ that frequently follows reports of such advances.  Thus: Perhaps Trump merely articulated his own personal feelings, while respecting that Comey “had to do his job.” If there was any ‘ask’ at all, it was with a “pretty light touch.” Maybe Trump is just “new to government,” unaware of the finicky institutional norms. Back where Trump is from, the exchange would have amounted to “a normal New York conversation.” And in any case, Comey must not have thought Trump was trying to obstruct justice, since he surely knew he had a “duty to report” such a serious crime (cf. Arlen Specter to Anita Hill: “[H]ow could you allow this kind of reprehensible conduct to go on right in the headquarters without doing something about it?”).

In situations where speakers need to communicate risky contents, where they’re unsure how those contents will be received at the time or reported later, they often speak in ways that preserve ‘plausible deniability’ by leaving room for alternative interpretations of their actual words. But what level of deniability is ‘plausible’? If even the remotest re-interpretation can undermine an attribution of unstated meaning, it seems that insinuation amounts to a (literal) ‘get out of jail free’ card. Any rational speaker in a strategic conversation should be absolved of conversational and legal responsibility by sticking to ‘I-statements’ and articulations of fact, leaving it to their hearer to work out the relevant consequences for themselves. This is the model suggested by Risch.

But this narrowly literalistic picture of communicative accountability is not well grounded in legal doctrine. Sticking with the parallel to sexual harassment, the EEOC includes implicit threats to continued employment within the scope of “quid pro quo” sexual harassment, and defines such harassment not in terms of how the behavior in question was actually interpreted, but how it would have been interpreted by a “reasonable person” in that context. This is still a high threshold, and relevant evidential details are often murky in particular cases. But it is not a skeptically high standard for unstated meaning; it is, in effect, the standard predicted by a Gricean theory of pragmatics.

Other, more colorfully specific cases of legal accountability for indirect speech include Robert Halderman’s 2010 conviction for attempted blackmail for offering to “sell a screenplay” to David Letterman depicting Letterman’s sexual relationships with staffers, and the 2008 arrest of Massachusetts State Senator Dianne Wilkerson for bribery in virtue of accepting of $2,000 “in appreciation of her efforts” to obtain a liquor license for a constituent. And in United States v. Ring, the U.S. Court of Appeals for the D.C. Circuit upheld a bribery conviction for an implicit quid pro quo in which a DOJ attorney helped to expedite review of a visa application. Notably, the problematic request (for Washington Wizards tickets) came only after the visa review was complete; even so, the understanding of expectation for reward was deemed to be sufficiently robust to have constituted a “corrupt exchange” of “official action for personal gain.”
Comey’s testimony offers multiple layers of sometimes ironic interpretive jockeying. Risch’s own narrow focus on Trump’s actual words in the service of sowing doubt about Trump’s legal liability is counterbalanced by Comey’s own carefully cultivated ‘just the facts ma’am’ style. Over and over again, Comey reports Trump’s words plus specific circumstances of their utterance, including non-verbal gestures (and non-gestures: “I didn’t move, speak or change my facial expression”). He states his “gut feeling” about what Trump meant – how he took the utterances based on having “had a lot of conversations with humans over the years.” But he demurs that “it’s not for me to say whether the conversation I had with the president was an effort to obstruct,” that it’s not his job to “sit here and try and interpret the president’s tweets.” In effect, Comey offers up his own situated interpretation as merely one more source of evidence for those tasked with rendering ultimate interpretive judgment.

As conversational stakes rise, interlocutors increasingly lob the hot potato of interpretive responsibility into others’ hands. In high-stakes conversations about who meant what, provable direct quotation is the gold standard. But actually uttered words aren’t the only admissible evidence. And they don’t stand on their own, but only function embedded within a “common sense” reconstruction of what a speaker could reasonably have meant by saying those words in those circumstances. Papa Grice, at least, would be proud.

Above is a guest post by Elisabeth Camp.



  1. Robert Davis said,

    June 13, 2017 @ 12:17 am

    Mafia Don: I hope nothing bad happens to your restaurant. That would be a shame.

  2. mg said,

    June 13, 2017 @ 9:56 am

    "Back where Trump is from, the exchange would have amounted to “a normal New York conversation.”

    As someone born and raised in NY, I can tell you that it would have indeed been a normal New York conversation – in organized crime or political corruption cases. No NYer would have had any doubt what was meant.

  3. Cervantes said,

    June 13, 2017 @ 1:08 pm

    In general, the taxonomy of speech acts is not determined by their surface meaning, or even their grammar, e.g. a question does not have to be in the form of a question and a question form can in fact be an assertion.

    In the case of directives, this is very commonly true. They are couched as "What I would like to see is . . . " or "Have you thought about," or obviously as in this case "I hope you'll do the right thing." The first and third are not intended as assertions of the speaker's desires, they are intended to influence the actions of the interlocutor, and depending on the social relation and any implicit threat may be construed as orders. The second is obviously not a question, but a suggestion.

    Also, per Robert Davis: Nice little job you've got there, it would be a shame if anything were to happen to it.

  4. DWalker07 said,

    June 13, 2017 @ 4:50 pm

    @Robert Davis: "I hope nothing bad happens to your restaurant…"

    That's a great example of a threat that doesn't SOUND like a threat, or at least, the words could (maybe) be construed as a non-threat.

    It's all in the tone the words were spoken in.

  5. Bart said,

    June 14, 2017 @ 3:11 am

    “I hope nothing bad happens to your restaurant”

    Surely this is normally a threat, irrespective of the tone of speech – unless the context contradicts that; eg it is in a discussion of bankruptcies of other restaurants.

  6. tangent said,

    June 14, 2017 @ 5:59 am

    Anyone have the capability to search text of court decisions to find Sen. Risch some extortion convictions where the "I hope…" phrasing was used? I'm sure this must have come up.

  7. tangent said,

    June 14, 2017 @ 6:03 am

    Bart, it's interesting how fine-grained it is. "I hope nothing happens to your restaurant!" can possibly be kind, and the meaning is "(bad)", but say the bad and it's almost impossible not to be a threat.

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