The Corner

The Politico Story Tells Us Nothing of Value About Herman Cain

In a previous legal life, I worked as a litigator at a large law firm and on occasion worked (as a defense attorney) for various corporate clients in sexual harassment cases. So I read Politico’s story with the jaundiced eye of someone who’s represented more than one corporate executive accused of harassment. From what I read, I found the story profoundly underwhelming.

Before I go on, let me first make clear that I don’t know the actual facts in the case. I have no idea what Herman Cain did or did not do, and I have no idea whether the events that triggered the complaints have any relevance to his character. I have no idea not simply because I have no first-hand knowledge but also because the story — and even the existence of a settlement — tells us nothing.

The story itself is unilluminating, to say the least. From it, we can discern that complaints were made, settlements were reached, and small sums of money changed hands. That’s it. We don’t even know the nature of the complaints, aside from vague comments about “innuendos” and “propositions.” And it’s possible we’ll never know. If the settlement agreements were crafted according to common practice, the confidentiality provisions are mutual. Neither party will be able to discuss the details without violating the settlement. So we may very well stay in the dark, and we’ll be left reading tea leaves, and in sexual harassment cases that is a dangerous thing to do.

First, as we all know, the existence of a complaint is not proof of guilt. Any seasoned employment litigator can tell tales of horrific misconduct, utterly fabricated complaints, and a huge amount of conduct that falls somewhere in between.  

Second, the existence of a confidential settlement agreement tells us nothing. The vast majority of sexual harassment complaints are settled behind closed doors, and — because the of the scandalous nature of the claims — confidentiality is vital even when the defendant is innocent. Simply put, the mere existence of a complaint can damage if not destroy a person’s reputation.  

Finally, even the payment itself tells us nothing. Small “five-figure” settlements (the amount Politico says is at issue here) are paid for multiple reasons — as part of a pure cost/benefit analysis to avoid litigation expenses (the classic nuisance settlement), to buy silence and relief from false claims, to provide legitimate compensation to aggrieved employees, or to dispose of claims of unknown veracity simply because the parties want to “move on” (to name a few examples).

Millions of Americans, myself included, admire and respect Herman Cain. Unless another shoe drops, Politico’s report should not impact that respect, and — given his sterling reputation — he is entitled to the benefit of the doubt.