The Government’s Lies and the Constitution

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political accountability for its misconduct; to inflict economic and reputational harm; or to enable the exercise of its powers to imprison, to deploy lethal force, and to commit precious national resources. On the other hand, the government’s lies can sometimes be helpful: consider lies told to thwart a military adversary or to identify wrongdoing through undercover police work. The substantial harms threatened by some government lies invite a search for ways to punish and prevent them. At the same time, however, the number of lies, the diversity of reasons for which they are told, and the variety of their effects combine to suggest that efforts to enforce blanket prohibitions against the government’s deliberate falsehoods would be both difficult and unwise. This Article seeks to identify constitutional and other approaches that attend to these concerns by constraining government lies that threaten especially serious harms. To this end, it examines when (and why) we find government lies most troubling, when those lies pose harms of constitutional magnitude, and when nonconstitutional options might more appropriately address the dangers of such lies