I learned one of my most valuable lessons as a lawyer early on: the side with the best lawyers doesn’t always win. I was with a small firm in D.C. only three years out of law school, and we were litigating a hundred-million-dollar arbitration against a powerhouse Wall Street firm led by its most famous litigation partner. In the middle of the trial, the partner leading our team — who wasn’t that experienced anyway — had a family crisis and dropped out. That left a mid-level associate and me, who at the time was trying his first case, holding the fort against Wall Street’s finest. I learned a lot about how to try a case by watching the lawyers on the other side, who were much better at our craft than we were. But my colleague and I kept going doggedly, and we won anyway. The facts and the law were on our side, and there was only so much that better lawyering on the other side could do to affect the outcome. As a citizen, that’s reassuring: the best lawyers don’t always win. Sometimes the merits of the case do actually determine the outcome, not the lawyers.
Those of us who believe that President Donald J. Trump did not commit an offense for which he should be impeached had better hope that that principle applies to the current impeachment trial in the Senate, because in my opinion the House managers out-lawyered the president’s defense team on day one. Adam Schiff, shameless snake that he is, was particularly impressive. He exhibited great vocal variety and sincerity as he condemned the president’s call with Ukraine as an attempt to “cheat” in the next election. He must have convinced himself to really believe that. One of the things that the Jesuits have known for centuries — and taught Bill Clinton along the way — is that to be an effective liar, you first have to convince yourself. The most brilliant man I ever knew, Robert Trivers, a renegade genius evolutionary biologist, has demonstrated that to deceive others effectively, one must first convince one’s self. We all have facial expressions, tones, and non-verbal cues that give away our true thoughts, so one has to believe something first to be truly effective in convincing others, and Schiff is a true believer.
On the other hand, much to my chagrin, the president’s legal team, led by his personal lawyer Jay Sekulow and White House Counsel Pat Cipollone, was disappointing. Sekulow has been described by the New York Times as “a trusted, telegenic presidential adviser more experienced in religious liberty cases than impeachment battles” but “having limited experience in white-collar criminal law or impeachment investigations.”
Sometimes the best advice a trusted adviser can give a client is, “I’m not the right guy to try this case.” That’s very hard to say, because it requires a lawyer to put aside his or her personal self-interest, particularly when one has a chance to play a leading role in the case of the century, the impeachment of a president. Let’s just say that if I were being tried in the court of public opinion on television, I wouldn’t want Jay Sekulow as my spokesperson.
Pat Cipollone was better, and he got even better as time went on as he hit his stride. He was clear, articulate, and passionate as he dismissed as “ridiculous” the history of the Democrats unceasing attempts to find some basis, any basis, to impeach this president and overturn the results of the 2016 election. The problem with his argument was that “it would only convince someone if they already agreed with you” (in the searing words with which one of my law school teachers, the great Alexander Bickel, once dismissed one of my arguments). Perhaps all Cipollone was trying to do in his opening statement was to reinforce the Republican “base” in the Senate that this is all much ado about nothing, but if so, he badly misunderstood the nature of the game.
The Democrats are trying their case to the country over the heads of the senators. That’s why they keep showing so many supposedly incriminating documents with big black redactions on that big screen behind them. A court of law would never allow documents that have not been admitted into evidence to be displayed to the jurors — and the country. But the Democrats are succeeding at creating the visual impression of a Republican cover-up, which is their goal.
In every case I have ever tried, the side that defines the issues wins. So far, the Democrats are winning the war by making this about calling witnesses and producing documents for a “fair trial” as opposed to a “cover-up.” The game isn’t about producing documents or witnesses, guys; it is about convincing the country that the president is a “gangster” (in the words of Harvard Professor Cornel West, who describes himself as “in the tradition of Malcom X”). And even more, it is about convincing the country that the moderate Republican senators up for reelection in November are part of a cover-up of the gangster selling out the country for his own personal political gain. Convince the country of that, and the Democrats can win control of the Senate and block everything Trump wants to get do during a second term, if he should be reelected, as seems increasingly likely. The president’s legal team better stop playing “small ball” and wake up to what the case is really about, and that means presenting clearly and simply why the president did what he did and why it was legitimate and in the national interest.
So far, the president’s legal team has failed to present his side of the story to the country. Perhaps that will come later, but as Geraldo Rivera correctly pointed out on the Hannity show after the first day of trial, “You only get one chance to make a first impression.” Like me, Rivera felt that the president’s lawyers failed to present a clear simple story justifying the president’s conduct that the public could understand. On the rare occasions when I agree with Rivera, I usually reassess my opinion, but in this case, he was absolutely right. Someone has got to present the president’s side of the story simply and forcefully.
The presumption of innocence may apply, at least in theory, to criminal trials, but not to an impeachment. When a majority of the House has taken the extraordinary step of impeaching a president, even along party lines, a large part of the public is going to conclude that “where there is smoke, there is fire,” unless the accused comes up with a credible explanation. Plus, everyone who has ever tried a criminal case in the real world knows that to be acquitted by a jury, the defense has to present a credible story of what happened, not just attack the other side’s fairness. We tell juries they must presume innocence to try to counteract the natural inference of most jurors that someone accused by the police and prosecutors is probably guilty. Defendants have a constitutional right not to take the stand, but if they exercise it, they are almost always convicted.
The president himself, however, was his usual brilliant manipulator of the media, delivering a speech to world leaders in Davos about his economic accomplishments rather than standing contritely in the dock in the Senate. And Mitch McConnell helped some by structuring the proceedings so that hours of procedural wrangling lasted until late at night, although the Democrats media allies will of course cherry-pick the evidentiary points made against the president.
And then there is the Alan Dershowitz problem. Unlike most of my academic colleagues, I admire Alan. We clerked for the same judge, and I respect him for writing books that bring legal knowledge and sophistication to the general public, not merely his academic colleagues. But there are a great many distinguished academic lawyers who could argue that the two charges brought by the House do not pass muster as impeachable offenses and should be dismissed. The White House didn’t need to hire one who had to renounce his prior (and correct) position during the Clinton impeachment in 1998 that an ordinary criminal offense is not required to impeach, as Dershowitz did.
Let’s hope that the merits of the case eventually decide the outcome and that the side with best lawyers doesn’t necessarily win. So far, much to my surprise and chagrin, the Democrats are winning, but that’s only after day one.