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Elizabeth Warren's Counterfeit Scandal

The hoariest cliché in Washington, “the cover-up is worse than the crime,” has never been true. It wasn’t even true during Watergate, which bequeathed this dubious homily. The only reason people said it then was because while it could be proved that Richard Nixon participated in the Watergate cover-up (it was on tape), it couldn’t be proved that Nixon ordered the initial break-in to the Democratic National Committee headquarters. Nixon’s role in the cover-up was certainly enough to justify Congress’s pressuring him to resign, as he eventually did. The cover-up was very, very bad. But if Nixon ordered government employees to commit an illegal break-in for partisan purposes—and the evidence that he did is, as Ron Rosenbaum recently noted in Slate, much more persuasive than most people realize—then that was worse. Much worse. (Rosenbaum earlier made this case in a sublime New Republic piece commemorating Watergate’s 10th anniversary in 1982.)

I bring up this ancient history because the June 1 Washington Post has a hackneyed Page One piece by David Farenthold and Chris Cilizza (who should know better and usually do) chiding Elizabeth Warren for covering up the fact that, two decades ago, she informed the University of Pennsylvania and Harvard that she was part Native American. Warren’s apparent sin, in this instance, was that she covered up not covering something up (i.e., her ethnic heritage)—a complex conceit, to say the least. Warren, Farenthold and Cilizza sermonize in the news story, has “learned an iron law of politics: Bad denials make little things big.” The cover up is worse than the crime.

Before we get to the crime, let’s consider the cover-up. I’m not sure there even was one. Previously Warren had said that he didn’t recall telling Harvard Law School that she was Native American. She also had said that she didn’t know that Harvard Law School, whose faculty she joined on a permanent basis in 1995, had counted her as a Native American in a 1999 compliance report to the Labor department, which monitors the affirmative action efforts of federal contractors. She had admitted, however, that prior to receiving tenure at Harvard she’d listed herself as Native American in a professional directory.

This week, in the overheated language of Farenthold and Cilizza, Warren “came clean.” Oh, please. Warren merely confirmed something she previously said she couldn’t recall—that she did tell Harvard (and a previous employer, the University of Pennsylvania) that she was Native American. Warren still maintains that her minority status played no role in her hiring at Penn or Harvard, and sources at both universities back up that claim. That may be a fib; since we don’t know precisely when Warren told these universities that she was Native American, it’s hard to know for sure. But lets get real. To whatever extent affirmative action would have been on Harvard and Penn’s minds, Warren’s real advantage—one that wouldn’t rely on her telling anybody anything—was that she was a woman. As late as 1992, the New York Times reported that only five of Harvard’s 59 tenured law professors were female. Harvard Law was short on tenured minority professors too, but (to judge from the 1992 Times piece) the immediate priority was to boost the number of tenured African Americans law professors (who then numbered only three). Nobody is suggesting that Warren told Harvard and Penn that she was black.

You ask me what I ate for breakfast. I say I don’t remember. You point out that I have a stain on my tie that looks like fried egg, Oh, right, I say. I had a fried egg. Is that “coming clean”?

But wait, you answer. Eating a fried egg is not something shameful. Whereas letting it be known that you have Native American ancestry … is? What exactly is the crime?

Potentially there are two. Crime One is that Warren may have used her Native American ancestry to get ahead in the cutthroat world of legal academia. We don’t know that she did, and she says she didn’t. But let’s assume she’s lying and that she did make an effort to inform potential employers that she was part Native American. That would be hypocritical if Warren were known to oppose affirmative action. But Warren, a liberal Democrat, almost certainly supports affirmative action. And if Warren was hired partly on the basis of being Native American or (much more likely) partly on the basis of being a woman, that would speak rather well for affirmative action as a personnel tool, because Warren continued to accumulate a very distinguished record of legal and other scholarship (to say nothing of the subsequent public service that elevated her sufficiently to run for Senate).

Crime Two is the birther-like contention that Warren isn’t really part Native American at all. The furious search for documents that demonstrate this has progressed to the point of self-parody. What no one denies is that Warren’s forbears on her mother’s side believed themselves to be part Cherokee and part Delaware—this in an era when making such a claim could only confer social disadvantage. Indeed, Warren says, her parents had to elope because her father’s parents didn’t want their precious son marrying a damned squaw. To believe that Warren is not part Native American requires you to believe that Warren’s ancestors participated in a multiple-generation conspiracy to establish themselves as parvenus, in anticipation that at some future date being part Native American would earn you diversity points. I suppose anything is possible. But is it likely?

Warren's cover-up is nonexistent and her crime is conjectural and none too plausible. Claiming falsely to be Native American to win tenure at Harvard Law would be more immoral than pretending, years later, that you never did so. But we have absolutely no reason to believe that Warren did either.