Did Elizabeth Warren and Harvard Make False Federal Filings in Violation of Federal Law?

Elizabeth Warren’s confession to the Boston Globe late last night that she self-identified as a “woman of color” to Harvard Law School twenty years ago, in 1992, raises some serious questions for both Ms. Warren and her employer, the most prestigious law school in the country.

Last night, the Globe quoted Ms. Warren as follows:

“At some point after I was hired by them, I . . . provided that information to the University of Pennsylvania and Harvard,” she said in a statement issued by her campaign. “My Native American heritage is part of who I am, I’m proud of it and I have been open about it.”

There are, however, two factual problems with this statement:

1. She provided the “woman of color” status first during her Visiting Professorship (1992-1993), but before her promotion to a full-timed tenure position. The offer was made Feb 5, 1993 and the 92-93 statement to Harvard appears to have been made well before that claim.
2. She’s not Native American. “Family lore” is a standard suitable for a schoolyard claim “by a kid” but nowhere near a sufficient standard made by an adult for information provided to her employer, the most prestigious law school in the country.

Ms. Warren improbably clings to her “childhood beliefs” and asserts that they met adult standards of evidence. They don’t. Ms. Warren’s argument insults our intelligence and severely damages her credibility, perhaps beyond repair.

This afternoon, the Globe released this full statement by Elizabeth Warren on ancestry, which they described in this manner: “The following is the full statement provided to the Boston Globe by Elizabeth Warren’s campaign Wednesday night regarding her assertions of Native American ancestry. “

Growing up, my mother and my grandparents and my aunts and uncles often talked about our family’s Native American heritage. As a kid, I never thought to ask them for documentation – what kid would? – but that doesn’t change the fact that it is a part of who I am and part of my family heritage. [emphasis added]

The people involved in recruiting and hiring me for my teaching jobs, including Charles Fried – solicitor-general under Ronald Reagan who has publicly said he voted for Scott Brown in 2010 – have said unequivocally they were not aware of my heritage and that it played no role in my hiring. Public documents that reporters have examined also show I did not benefit from my heritage when applying to college or law school. As I have confirmed before, I let people know about my Native American heritage in a national directory of law school personnel. At some point after I was hired by them, I also provided that information to the University of Pennsylvania and Harvard. My Native American heritage is part of who I am, I’m proud of it and I have been open about it.

The people of Massachusetts are concerned about their jobs, the future for their kids, and the security of retirement. It’s past time we moved on to the important issues facing middle class families in Massachusetts.

Ms. Warren’s statement, however, is anything but a full and complete accounting of her ancestry claims. She asks us to understand her acceptance of family lore when she was “a kid” but fails to acknowledge that the burden of proof was on her to substantiate said family lore when she made that claim as an adult to Harvard Law School, the University of Pennsylvania Law School, and the Association of American Law Schools, beginning in 1987, and continuing since.

1. Did she have a good faith belief in the accuracy of her self-identified statements made to Harvard Law School in 1992, and previously to the University of Pennsylvania Law School and the Association of American Law Schools?
2. Does the governing statute have nuances of interpretation that offer Ms. Warren and Harvard Law School an escape clause on technicalities?
3. Has the statute of limitations expired if, apparently, the most recent instance of this false reporting of Ms. Warren’s purported Native American heritage by Harvard Law School took place as recently as last year, 2011?

More facts are needed before the full possibility of legal implications can be known. Those facts lie in the records of Harvard Law School and Ms. Warren. Neither appear to be interested in making those facts available at present.

Professor William Jacobson at Legal Insurrection began the same line of questioning this morning in his post, “It’s Elizabeth Warren’s and Harvard’s federal filings, stupid” :

We now know (again last night after The Globe found documents) that Warren was listed for the 1992-1993 academic year as Native American in Harvard Law federal filings.

We now know that all these federal filings were false.  There is no evidence that Elizabeth Warren is Native American, and substantial evidence she is not.

Making a false federal filing potentially was a crime.  18 U.S. Code § 1001 as it existed prior to 1996 revisions provided:

“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined under this title or imprisoned not more than five years, or both.”

The statute since 1996 has provided:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

….I’m not prepared to say Warren or Harvard violated the law.  Not enough is known.  But the federal criminal statute points to the importance of accuracy in federal filings.

In a criminal prosecution, the prosecution would have the burden of proving the crime beyond a reasonable doubt…

Warren knows what happened, and so does Harvard.  It’s time for them to stop playing hard to get.

As Chris Cillizza pointed out in his article, “What Elizabeth Warren did wrong” at the Washington Post early this afternoon:

Elizabeth Warren’s acknowledgment Wednesday night that she had formally informed both Harvard University and the University of Pennsylvania that she was a Native American seemingly contradicts a month of the Massachusetts Democrat’s assertions on the matter and represents a major misstep for the nationally touted candidate.

At some point after I was hired by them, I … provided that information to the University of Pennsylvania and Harvard,” Warren said in a statement to the Boston Globe.

But, when the Boston Herald first reported on the fact that Warren was listed as a Native American in a faculty directory, she said that she had no previous knowledge of that fact and had not authorized Harvard to list her as a minority. Warren’s campaign has said she forgot some details of her past employment as a way to explain the discrepancy in her statements.

And, it’s clear from the Globe story that Warren’s hand was forced by the fact that the newspaper had found proof that, in their words, “the university’s law school began reporting a Native American female professor in federal statistics for the 1992-93 school year, the first year Warren worked at Harvard, as a visiting professor.”

While the Warren campaign will insist that is being consistent — that she has always said that she never told Harvard or Penn about her heritage before being hired or that it benefited her in any way — the optics of this back and forth are just terrible for her.

This could — and should — have been a minor nuisance for the campaign. ..But, Warren has turned a minor nuisance into a major storyline by not simply coming out with everything she knew — up to and including that she had formally told Harvard and Penn of her Native American heritage — about the whole episode right from the start.

“In Politics 101 you learn to get it all out and apologize on day one,” said one senior Democratic consultant who marveled at how the Warren campaign dealt with this episode. “‘Yep, I did it and I’m sorry.’ This has been handled amateurishly.”

Professor David Bernstein in his article “Annals of the One Percent” today at the Volokh Conspiracy notes:

I understand that Elizabeth Warren claims to have inspired the Occupy movement…In that spirit, it’s worth noting that when the 99% living in the Boston area claim minority status for employment purposes based on family lore, an old photograph, and other dubious bases, they get fired. When the 1% do it, they get a bit of bad publicity.

It’s quite a fall for the woman who this past October claimed credit for Occupy Wall Street, as the Daily Beast reported:

The Harvard professor has spooked the right. As she begins her high-profile Senate campaign against GOP star Scott Brown in Massachusetts, the consumer advocate tells Samuel P. Jacobs how she created ‘much of the intellectual foundation’ for the Occupy Wall Street movement. She also talks about her past life as a Republican and the challenges of being a woman on the campaign trail–and says she’s no ‘guileless Marxist.’

Elizabeth Warren is running for office in the most high-profile race in the country not involving Barack Obama. It’s a position that calls for some tact. So what does she think about the Occupy Wall Street protests that are roiling the country?

“I created much of the intellectual foundation for what they do,” she says. “I support what they do.”

Warren’s boast isn’t bluster: As a professor of commercial law at Harvard and the force behind Obama’s consumer-protection bureau, Warren has been one of the most articulate voices challenging the excesses of Wall Street. Still, she enjoys an outsize celebrity for an academic and bureaucrat: a favorite guest of Jon Stewart, Warren, 62, has become a hero to the left, a villain to the right, and a fascination for everyone in between. Now that she is challenging Massachusetts Republican Sen. Scott Brown, she has emerged this year as a poster child for what some of America loves, and an increasing swath of America hates, about the president.

As Ms. Warren’s political and professional future continues to twist in the wind, it’s time for her and Harvard Law School to consider what may be an unusual strategy for them both. Tell the truth and release all relevant documents.

Michael Patrick Leahy is a Breitbart News contributor, Editor of Broadside Books’ Voices of the Tea Party e-book series, and author of Covenant of Liberty: The Ideological Origins of the Tea Party Movement.