The Weiner Chronicles

One almost has to feel sorry for the unfortunately named Congressman who finally admitted sending pictures of his, umm, Johnson to a stranger on Twitter.  Actually, he accidentally sent the picture to all of his Twitter followers.  Weiner obviously showed terrible judgment and then compounded things by telling a ridiculous lie about it -- first that someone hacked the Twitter account, then saying the he couldn't  be sure the picture wasn't him, then finally coming clean about it.  But should he lose his job over the scandal?

I've had several cases where employees are fired or disciplined for sending inappropriate messages, pictures, and texts to co-workers.  In one case an employee sent a copy of himself having sex with another co-worker to the co-worker.  Problem (for him) is that he was married and the co-workers had broken up.  In another an employee took a picture of his little Congressman and showed it to someone else at work, who then told a colleague, who told another colleague, who told a supervisor who surreptitiously picked up the phone and was shocked, shocked by what she saw.  Both employees got their jobs back, but just barely.

In these cases the employer typically argues that the employees were guilty of "harassment" or "inappropriate conduct."  The problem  for the employer is that sometimes the employee who receives the photo or text isn't offended and doesn't feel harassed.  Other employer arguments are that the exchanges took place during work time, or were on work phones.  These arguments are a little harder to overcome, as it's hard to argue that the employer can't place restrictions on what employees do at work on employer equipment.

On our side, I usually argue that the employee to whom the message was sent wasn't offended, or if she professes offence now, couldn't actually be offended (e.g., the lady who allowed herself to be shot having sex, then objected to receipt of the shot later).  Or, if the victim is truly offended, I try to offer an apologetic grievant who did not know he was offending.  If it fits, I argue that what consenting adults do on their own time is nobody's business, and certainly not the employer's.

This is what makes the Weiner case interesting.  Was Weiner acting in his role as a citizen, or Congressman?  Was he doing what he did on the taxpayer's dime, or on his own time?  Did he use government resources?  It's not clear that Weiner violated any House ethics rules, at least according to the pundits.  But he may be forced to resign anyway, probably because he tried to "cover up" the misdeeds by lying about it.

There's a world of difference between lying about a half-naked picture of yourself, and lying about something more consequential, for example, breaking into the Watergate Hotel.  The distinction has been lost in our political culture.  Nonetheless, I'm reminded of clients who, when caught, end up telling a ridiculous lie about; the case then becomes about the lie rather than the underlying issue.  I would of course prefer that they tell the truth.  But if they choose not to do that, at least tell a better lie.  In the end, Weiner's failure to come clean may lead to his downfall.