The Lawyer Advantage

Lawyers have a distinct advantage when it comes to handling questions posed to our clients. We get to object to them in court, and we can prevent them when we assist clients:

COP:    Tell me sir, when did you quit beating your wife

ATTORNEY:    I’m going to object to your question. It contains facts not in evidence (no prior admission of beating his wife) and presents a false choice.

Attorneys object to protect our clients. Some attorneys do it better than others. Some attorneys sit mute because they want to appear to be gentlemen in front of the jury. Others are just asleep at the switch. But one thing is clear, those attorneys who are the most effective advocates for their clients are the ones who object to unfair questions. During the press conference yesterday, President Trump got a whole boatload of unfair questions. CNN posted a transcript of the press conference here, and it provides some insights into the nature of some very unfair questions President Trump was asked.

QUESTION: Can you tell us in determining that Lieutenant General Flynn did — whether there was no wrongdoing in your mind, what evidence was weighed? Did you ask for transcripts of these telephone intercepts with Russian officials, particularly the Ambassador Sergey Kislyak, who he was communicating with?

What– what evidence did you weigh to determine that there was no wrongdoing? Further to that, Sir, you said on a couple of locations this morning, you are going to aggressively pursue the source of these leaks.

Okay, there are a bunch of questions here:

  • Can you tell us what Lieutenant General Flynn did?
  • Whether there was no wrongdoing in your mind?
  • What evidence was weighed?
  • Did you ask for transcripts of these telephone intercepts with Russian officials?
  • What are you going to do about the leaks?

In court, we would say this is a “compound question” because it joins multiple subjects and requires a long narrative answer. But more importantly, it asserts facts that were not on the record. Does the president have the duty to tell the press what evidence was weighed? Normally when someone is fired or resigns we say it’s a personnel matter and we don’t discuss it. But where the issue involves highly classified information, we certainly don’t tell the media what we saw because even that gives away information to our enemies.

The reporter here seems to know that there are transcripts. How does he know that? It was in the leaked information. By putting this information into the form of a question he is essentially asking the President to confirm leaked information. That too is an unfair question.

President Trump has already told the media he is not going to tell them everything he plans to do that affects national security. Does he need to deliver this to them carved on stone tablets?

The Anticipated Denial

Of course, if you can’t trip up the President on leaked intelligence, then you can always ask a question that is refuted by the record in an attempt to get the President to deny what has already been laid out.

QUESTION: I just want to get you to clarify this very important point. Can you say definitively that nobody on your campaign had any contacts with the Russians during the campaign? And on the leaks, is it fake news or are these real leaks?

We already know, and the President already admitted that there were contacts between the campaign and certain individuals in Russia. The purpose of this question is only to get him to deny a portion of it, so that the denial plays as a lie. Fortunately our President was smart enough not to take the bait. He said the leaks were real; the news was fake.

Now Shepard Smith of Fox News went on a video crying jag about this later because the President said the leaks were real but the news was fake. Someone needs to get Shep a couple of Valium. Here’s the key to understanding this exchange. The leaks of classified information are very real. They put the country and its sources and methods of gathering intelligence at risk. But the actual transcripts were not leaked. Rather, what was said was characterized by the leakers and the media. It was not disclosed. So when the fact of a leak is true, it is the content of the leak and its characterization that are false. The media is not too stupid to understand this, they’re just to biased to report it correctly.

False Equivalency

But my favorite unfair question was the false equivalency question. False equivalence is a logical fallacy where two arguments are made to appear to be logically equivalent to one another when they are not. Often this fallacy is generated simply where two things share a common trait, rather than when they are, in fact, equivalent. Here’s the questioner setting the stage for the question:

QUESTION: — you said — you said that you loved WikiLeaks. At another campaign press conference you called on the Russians to find the missing 30,000 e-mails. I’m wondering, sir, if you –

And here’s the actual question with the false equivalency:

QUESTION: If — if I may ask you, sir, it — it sounds as though you do not have much credibility here when it comes to leaking if that is something that you encouraged during the campaign –

See the false equivalence: “leak” is involved in both situations, but that’s the end of the equivalence. In one case we have the DNC, that took no precautions to protect its server, and was hacked, with the information being given to Wikileaks either by an outside hacker or by someone who worked for the DNC and was troubled by their undercutting Sanders. On the other, we have individuals who are government employees. These government employees were granted access to classified information. Not just any classified information, but some of the most highly classified information in the country. This is Top Secret Codeword intelligence they are handing out to the news media.

So the reporter thinks that there is an equivalence between someone getting information out of a private, non-governmental email server and someone else violating oaths to protect highly classified information. This is not rocket science here: the reporter understood the difference, he was just hoping that the general public would not. Properly worded his statement (because it really wasn’t a question) was this: its not fair for you to take advantage of Wikileaks during the campaign and now complain about leaks of classified information in your administration. The comparison was never fair, and the question was a sham meant to embarrass the president. It’s like saying that because you “take a leak” every day, you’re in favor of classified information “leaking.”  I mean, after all, leak is common to both, right?  Reporters who do this kind of thing de-legitimize the media across the country.  Even a dog knows the difference between being kicked and being tripped over.

Confidence Undermined

Then there was this question:

QUESTION: When you call it “fake news,” you’re undermining confidence in our news media …

Actually, no. We’re calling it fake news because you’re not telling the truth. That’s because on things you are opposed to, you never tell the truth. Anyone who owns guns and is a member of the NRA knows exactly what this is all about. You rarely if ever report the good (note that the Washington Post had an excellent story on 2/15 about the bystander who shot the criminal attacking a Florida deputy) but you’re quick to twist one thing (the false narrative that an inability to handle money makes you crazy and violent) into another (Congress is repealing background checks).

There was a time in this country that if you read something in the newspaper or on the wire services it was gospel.  People got fired for getting things wrong.  Retractions and corrections (now conveniently called “clarifications”) were anathema.  Your journalistic integrity was what ensured that the people got the straight scoop.  Now anyone with a communications degree and an agenda can get hired at CNN so long as their politics fit the network.  Accuracy is no longer important, and there is an intent to deceive when you say that the removal of a bad regulation is, in fact, the removal of background checks.  Truth is truth, and the media seems to have forgotten this.

Nobody Owes You Anything Sweetheart!

But far and away the thing that bothered me about the media and its reaction to the press conference is this idea that the president “owes” the media an explanation of everything he does. Or that it owes the media an explanation of what the President intends to do about something. When asked about Russia and North Korea, the president rightly answered this way:

TRUMP: Wait a minute. I don’t have to tell you what I’m going to do in North Korea. And I don’t have to tell you what I’m going to do with Iran. You know why? Because they shouldn’t know. And eventually, you guys are going to get tired of asking that question.

President Trump, we can only hope so.

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