Prosecuting liars *(updated), **(updated again)

Xavier Alvarez did not win the Congressional Medal of Valor back in 1987 and he was never in the Marines. He lied about both at a meeting of the Claremont-based Three Valleys Municipal Water District Board of Directors last summer - Alvarez was elected to the board in 2006.

Now he's charged with violating a federal law, the Stolen Valor Act of 2005, and faces jail time and a hefty fine.

Alvarez may be a fool. Alvarez may be a liar. He should probably resign or be recalled. But I don't think he should be prosecuted.

First off, the Stolen Valor Act seems a highly problematic law to me. Its stated purpose is "to protect the reputation and meaning of military decorations and medals." However noble the cause might appear, I cannot see how Congress can justify piercing the First Amendment to protect the "reputation and meaning" of inanimate objects.

As for protecting the reputation of those who have won military medals and decorations, they don't need legislation to do that.

The only person tarnished by Alvarez's lie is Alvarez. He has no power to diminish the sacrifices of real Medal of Honor winners. However, we risk sullying the very freedoms they fought for if we prosecute him on these constitutionally questionable grounds.

*Blogger calwatch left a comment saying the prosecutors might charge Alvarez with fraud for lying to Pomona Mayor Norma Torres about his medal: On the other hand, the US Attorney argues in its response that it was fraud, not protecting speech, when Alvarez claimed that he had a medal. If you read the court brief filed, the US Attorney is going to try to prove that Norma [Torres] wouldn't have endorsed Alvarez had she known Alvarez never received a medal. Thus, the endorsement was given on false pretenses. What you are saying is that the only recourse voters have is to recall him and sue him for fraud. While I might enjoy the idea of forcing Alvarez into bankruptcy, it's not cost effective to enforce these sort of egregious statements solely via the civil courts. Hence the law.

There are times when lying rises to the level of a crime. Lying under oath seems the clearest example. Lying is also at the heart of criminal fraud cases, but the lie has to result in some unlawful gain. Lying to gain someone's endorsement, while shady, doesn't strike me as criminal.

For this to work, the prosecution would have to prove Torres offered her endorsement solely on the basis of Alvarez's statement that he had won a medal. I doubt that's true. Yet even if that could be proved, what material damage was done? If she gave him a campaign contribution that might - might - rise to the level of an unlawful gain. But, again, I don't think things are so clear in political circles, where true motives are near impossible to uncover.

I'd guess the fraud argument is simply an extension of the Stolen Valor Act allegation, with the prosecution trying to prove Alvarez had a clear intent in misrepresenting himself. Once again, though, the crime seems to rely on a theory that the government has a duty to protect reputations and guard against dishonest political speech. My, that's a slippery slope.

As inconvenient and inefficient as it might be, I think voters do have a responsibility to push a recall if they're outraged at Alvarez's actions. We can't expect the criminal courts to undo bad elections or fix our failures to properly vet a candidate. I know how little attention is given to water boards and their elections, and maybe this situation could serve as an object lesson about the corruption that can take hold when the watchdogs aren't really watching.

(Correction: I had the wrong last name for Pomona's mayor. Its Norma Torres, not Lopez)

**Claremont Buzz, who's been all over the Alvarez case, posts this comment: The fraud that can be prosecuted is Alvarez's including his ex-wife as a spouse on his water board's medical benefit plan. He has admitted to doing this, and the amount in benefits to the ex-wife was several thousand dollars, according to the Daily Bulletin. This seems pretty clear cut - grand theft and fraud - and could be charged locally. Three Valleys was in contact with the LA District Attorney's Public Integrity Unit about this, but we've heard nothing recently.

It may be that the Public Integrity Division is waiting for the Feds to complete their work. The PID is known to be, um, patient.

Alvarez pleads guilty

Xavier Alvarez, member of the Three Valleys Municipal Water District board of directors, pleaded guilty Monday to falsely claiming to have won a Congressional Medal of Honor.

I've argued that the law fails to pass constitutional muster and that Alvarez should be held accountable for his lies in the court of public opinion, not in a court of law. A judge disagreed with me and denied a motion to dismiss on First Amendment grounds. As a result, Alvarez pleaded guilty to a misdemeanor, which allows him to remain on the board.

We'll see if voters - most of whom pay very little attention to water boards - decide to mount a recall attempt.

Note: The Bulletin story says the plea deal leaves the door open for Alvarez to appeal his conviction on constitutional grounds and that he's expected to do so.

Lucky number 7

After a longish preamble (in VII parts), Murray Bessette at the Foothill Cities blog concludes, as I did here, that the Stolen Valor Act is a bad idea and not the right instrument to punish non-Medal of Honor winner Xavier Alvarez.

Bessette also echoes a point I made about the sleeping watchdogs*: Given the singular nature of those who are deserving of this nation’s highest honor, someone, either citizen, blogger, or journalist, should have had enough interest to look here for Xavier Alvarez’s name to learn the story of his exploits.

Indeed. And now that the deal has been done, it's up to the people to show a similar level of interest in their elected officials and mount a recall if they're really that outraged. Waiting on a federal prosecutor to peel this guy out of his board seat is lazy.

*I confess that I spent a year while at the Claremont Courier investigating a scandal at Three Valleys and I don't think it changed a thing.

Ninth Circuit strikes down Stolen Valor Act

The Ninth Circuit Court of Appeals has struck down the 2005 Stolen Valor Act in reviewing a case brought against Xavier Alvarez for lying about winning the Medal of Honor during his made-up tour of Vietnam.

The law, which made it a felony, to claim an un-earned military medal, was used by prosecutors to charge Alvarez for statements he made in 2007 as a member of the Claremont-based Three Valleys Municipal Water District board of directors. Alvarez faced jail time and fines for violating the law.

The court ruled the law to be unconstitutional. From the LA Times:

"If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he's Jewish or the dentist who assures you it won't hurt a bit," Kozinski wrote in defense of the 1st Amendment.

"Phrases such as 'I'm working late tonight, hunny,' 'I got stuck in traffic' and 'I didn't inhale' could all be made into crimes," Kozinski argued. "Without the robust protections of the 1st Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship."

I'd argued back in 2008 that the prosecution was a waste of time.

More problems for water board member

Xavier Alvarez, troubled Three Valleys Municipal Water District board member, faces three felony counts for allegedly funneling health insurance funds to his ex-wife. The L.A. District Attorney's Public Integrity Division is prosecuting.

Alvarez, you may remember, has a history of bad decision-making.