Did Cain Do It?

A controversy has developed this week surrounding Politico’s allegations that Herman Cain was sued by two separate women for sexual harassment when he was head of the National Restaurant Association during the 1990s. According to Politico, “The women complained of sexually suggestive behavior by Cain that made them angry and uncomfortable, the sources said, and they signed agreements with the restaurant group that gave them financial payouts to leave the association. The agreements also included language that bars the women from talking about their departures.”

Politico called up the Cain campaign for comment, which were refused. So the questions persist. What exactly did Cain do, if anything? Did he engage in innuendo-filled conversations and ask sexually suggestive questions of the women? Did he, as Politico somewhat ridiculously accused, make “physical gestures that were not overtly sexual but that made women who experienced or witnessed them uncomfortable and that they regarded as improper”?

Has a vaguer standard for sexual harassment ever been articulated?

Because of the vagueness of the charges and their suspicious timing, coming as Cain leaps ahead in national polls, conservatives have jumped to Cain’s defense. Using Clarence Thomas’ famous phrase, Ann Coulter called the story a “high-tech lynching.” Brent Bozell of the Media Research Center was just as forceful: “In the eyes of the liberal media, Herman Cain is just another uppity black American who has had the audacity to leave the liberal plantation. So they must destroy him, just as they tried destroying Clarence Thomas.” Rush Limbaugh went after Politico for using “the ugliest racial stereotypes they can to attack a black conservative.”

Because of that strong response from conservatives, many are now wondering who planted the story in the first place. Was it another conservative candidate who got hold of the information? Was it the Obama team, which didn’t like the look of Cain’s quick ascendance? Or was it just a coup by Politico?

Time will possibly tell. But for now the real question remains: Did Cain do it?

The indicators say he didn’t. While Politico chalks up Cain’s various statements about the settlements to dishonesty – Cain has variously said he knew nothing about the settlements, then said that there were cash payouts to a woman who accused him of harassment – it is more likely that Cain was birdwalking because the restrictions of settlement agreements generally include confidentiality on both sides. If Cain says too much, he probably risks violating those confidentiality provisions, which would free the accusers to say anything they please, defeating the purpose of the settlement to begin.

The amount of the settlements also indicates that there’s not much here. Cain says that one of the women was paid about three or four months salary, or $13,000, to go away – she sued, Cain says, after she was fired for incompetence. Generally, a settlement amount can tell us a lot about the viability of the case itself. When Paula Jones sued Bill Clinton, he ended up paying her some $850,000.

The small settlement amount in the Cain case is explicable by a common legal strategy on the part of the plaintiff. When a plaintiff wants to hit a deep pocket up for some money, they take a shaky case to a lawyer. The lawyer evaluates the case and sees if it has any merit at all. If it’s not a violation of bar rules, the lawyer then takes on the case and approaches opposing counsel. Here’s the case the lawyer makes to the defense counsel: “Sir, it costs me only a few hundred dollars to file a complaint with the relevant court. If I do, it will cost you probably $600 per hour for your high-priced lawyers to respond. At the very least, it will take 100 hours to defend any decent claim. So, you can either spend $60,000 on lawyers, or you can spend $15,000 to send me and my client on our merry ways.”

The settlement in Cain’s case, if he is telling the truth as to amount, looks very much like the typical threaten-and-settle. The danger of Politico’s charge is that those who don’t understand how legal maneuvering works take such charges seriously and wonder why Cain doesn’t speak out. His silence is seen as tacit admission of his guilt, when the truth could be precisely the opposite.

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