The art of the squeal: Learning from Congress's mistakes when questioning Cohen

Today’s testimony from former Trump lawyer Michael Cohen before the House Oversight Committee has been analyzed from every angle, so there’s little to be added. I noted a few missteps made by the members of Congress (many of whom are lawyers) who questioned Cohen, however, and it’s helpful to discuss those.

1) Don’t cross-examine crossly

Every law student who takes a trial practice class has heard this advice repeatedly, and with good reason. When you’re examining a witness who is not favorable to your side, it’s important to remain calm and professional. If you’re hostile and full of bluster, it becomes clear to the jury (or, here, the public) that you are not confident in your line of questioning. If the law and/or the facts are in your favor and you’re well-prepared, there is no reason to bloviate. If you raise your voice, appear hostile, or slam your hands on the table, you’re sending a clear signal that you’re sinking.

2) A witness with unclean hands

The Republican members of Congress were not the only bad actors here, however. Cohen’s testimony was favorable to the Democrats’ position, but there was no need for the Democrats to treat Cohen with extra friendliness. With a shady witness, such as a criminal co-conspirator, it’s a mistake to appear sympathetic to the witness. He’s done some bad things, and we’re not supposed to be his friend. A stern, businesslike demeanor signals that we don’t approve of this witness’s past actions, but we still need information that only he can give us.

3) Impeaching the witness

When a witness is giving damaging testimony, of course you want to show that the witness is not credible. Republicans tried to do this, but they persisted in making this grievous error: You cannot impeach a witness by using misdeeds to which he has already admitted. Everybody knows that Cohen is a convicted felon who, among other things, lied to Congress. It’s not helpful to continue to point that out. When you do this, the result is always: “Yes, I’ve done bad things. I’m a criminal. I lied before. You already know that.” If you can’t find novel ways to undermine the witness’s credibility, you’re just wasting time and distracting from your key points.

Further, when the Republicans kept harping on these points, everyone noticed that they were more concerned with impeaching Cohen than with eliciting testimony that could be helpful to Trump. The obvious conclusion is: Trump’s long-time lawyer and close business associate cannot offer any information favorable to Trump.

4) You’re one of us

Speaking of, the GOP strategy in the hearing and thereafter is to discredit Cohen. On social media and in the press, the GOP continues to point out that Cohen “is a convicted felon who has consistently engaged in deceptive and misleading criminal behavior including tax evasion, lying to financial institutions, and lying to Congress.”

Again, everyone already knows this, so the GOP’s strategy has three calamitous side effects: 1) Because Cohen was Trump’s close business associate for many years and because he was the GOP’s deputy finance chair until eight months ago, we wonder about the judgment of Trump and the GOP in continuing to work with him so closely for so long. Oddly, hours after Cohen’s testimony, Cohen’s profile was still live on the GOP’s main website. 2) We’re reminded that Cohen lied and committed crimes on behalf of (and probably at the direction of) Trump. We accept testimony from criminal co-conspirators regularly, so it’s odd to pretend that this is unusual. 3) We notice that the GOP is unable to offer any credible counterarguments to refute Cohen’s testimony.

Honesty is the best policy: Scandalized politicians are doing it wrong

We’ve all made our share of dumb mistakes, and as we watch the latest political scandals unfold, we’re relieved that we’re not public figures and can leave our own mortifying missteps in the past.

Politicians ARE public figures, however, and it’s a sure bet that their political enemies will stop at nothing to dig up evidence of their past misdeeds. The more salacious, the better, and if there’s a photo or video, pay dirt!

If you decide to run for a high-profile office, you may as well accept that everything in your past will be brought to light in a manner that is the least favorable to you. Knowing this, you’d think political candidates would do a better job of managing their scandals.

They’re doing a lousy job, however, so I hope to suggest a better way using three notable examples.

My strategy is this: Tell the truth. When we’re honest about our shortcomings, nobody can use them against us.

Note: This works only for past mistakes that are not still ongoing, and it doesn’t and shouldn’t absolve someone of blame for serious crimes such as sexual assault, murder, and war crimes.

We’re all hypocrites

When we’re judging the actions of someone we support, we tend to consider the underlying motives of the actor, and we do so sympathetically. On the other hand, if we’re judging the actions of someone we’re against, we tend to look only at the act itself, although we’re happy to ascribe bad motives to that act.

For example, most Trump supporters were once Bill Clinton’s detractors. These “values voters” were out for blood when Clinton’s (admittedly awful) sexual sins were exposed, but when confronted with Trump’s, these same people tell us they voted for “a president, not a pastor.” And those who are offended now at Trump’s (admittedly awful) sexual sins were silent during the Clinton scandals.

We are a deeply moral people—when it comes to judging people we don’t like. When it’s OUR guy, however, we promptly abandon our morals and adopt a libertine stance that would make Baudelaire blush.

We remain loyal even when the politician’s actions are REALLY bad. For this reason, I suggest that the best way to deal with scandals is to come clean—really clean, apologize, and move on.

In other words, if people strongly dislike you, you’ll never win them over no matter what you say or do. If they love you, they’ll forgive almost anything, and they’ll bring the undecided voters with them. To accomplish this feat, you’ve first got to give your supporters a chance to forgive you. The only way to do this is to acknowledge your mistakes fully and ask for forgiveness. Then, it’s up to the voters to decide.

Bill Clinton didn’t inhale

Bill Clinton turned 18 in 1964 and attended college during the ‘60s and ‘70s, where he protested the Vietnam War.

Given this timeline, it seems impossibly quaint now that Clinton ignited (sorry) a minor scandal when he revealed that he smoked marijuana when he was a Rhodes scholar at Oxford when he was in his early 20s.

Clinton famously said: “I experimented with marijuana a time or two, and I didn’t like it. I didn’t inhale it, and never tried it again.”

This dopey (again, sorry) statement was a rare misstep for the politically savvy Clinton, who often used surgically crafted phrases to defuse other scandals large and small.

Clinton was elected president anyway, so the gaffe didn’t do irreparable damage to his political career. Still, it distracted from his campaign, and it has followed him since.

A better way: Why not just say, “Well, I’m a child of the 60s, so yes, I tried marijuana. I think many of us did, right? It wasn’t for me, and I didn’t really try it again. Now, that I’m a parent… blah blah blah.”

It’s counterintuitive, but when you admit to something without holding back, it makes you relatable and diminishes the appearance of wrongdoing.

Elizabeth Warren is not Cherokee

This shouldn’t be much of a story at all, but Warren’s ham-fisted defenses have turned it into a scandal that threatens to derail her political career.

Pretty much everybody I know (including me) was told that we were “part Indian” and specifically part Cherokee. Many of us repeated these dumb family stories until we discovered as adults that they were false. (In my case, I researched my genealogy thoroughly, and my DNA test results supported my findings.)

Over the years, Warren publicly stated that she was proud of her heritage and was listed as a minority professor in Harvard Law School’s faculty directory. She even claimed to be an “American Indian” on her 1986 Texas bar card.

It appears that Warren genuinely believed that she was part Cherokee, so she wasn’t technically lying. Further, there is no evidence that she was given preference in hiring or school admissions as a result of her claim, nor did she use it to advance her career.

Still, it’s an embarrassing mistake. But the real gaffe is how she handled it.

When her claim of Cherokee heritage was challenged, she could have said, “Oh, gosh, my family always told me that I was part Cherokee. I believed this to be true, but to be honest, I’ve never seen any documentary evidence of this. I’ve never used it to advance my career, but of course I’ll stop claiming it unless I get better evidence. I’m really embarrassed to have made this mistake, and I’m sorry I misrepresented my heritage.”

Had she said this, Sen. Warren would have destroyed her opposition’s plan to characterize her as a phony and an opportunist.

Instead, she added fuel to the fire by standing by her story.

As Warren continued to defend her claim, the press reported the story widely, and then Donald Trump noticed. He offered to donate $1 million to Warren’s charity of choice if she could prove Native American ancestry.

Now, if you can be outsmarted by Donald Trump, you probably deserve what you get, and Warren took the bait. She promptly took a DNA test, which showed that she has a Native American ancestor (six or more generations back) but is mostly of European descent. She’s got more Native American ancestry than most Americans of European descent, but it’s not as if she’s got a Cherokee great-grandmother.

This stunt made her look silly, and Warren’s insistence on responding to her critics while standing by her story have ensured that it’s now a central part of her presidential campaign and will overshadow any of her substantive policy proposals.

Gov. Northam and blackface

Newly elected Virginia governor Ralph Northam is the latest politician to find himself embroiled in a blackface scandal.

Northam’s page in his 1984 yearbook from Eastern Virginia Medical School features a photo of two men, one in black face and one dressed as a Ku Klux Klansman. This was an occasionally-seen tasteless “odd couple” costume of the day. (The actress Kirstie Alley’s parents were killed in an auto accident while on their way to a Halloween party dressed in such a costume.)

It is unclear which one of the men is Northam or how the photo was selected for his page. (Northam has alternately said that one of the men is him and that perhaps neither man is him. He says he does not know who selected the photo, although it seems clear that students selected their own photos for their yearbook pages.)

No matter, blackface is and always has been racist, and there is no excuse for this. We understand that 1984 was 35 years ago, and yet we’re surprised that such an offensive photo would be published in a yearbook even at that time. What were they thinking?

Once the photo came out, Northam could have made this statement: “My God, what was I thinking? I don’t remember dressing in that costume or choosing that photo for my yearbook, but what if one of those men is me? That costume is inexcusable, and I should have known better. I am so sorry. In the 35 years since this photo was taken, I have… (and here, he could list the various ways that he has worked for racial and social justice).”

This would not have solved the problem, because it’s such an offensive photo, but it would be a much more helpful strategy than what Northam chose.

Instead, he gave conflicting explanations for the photo, which makes it seem as if he’s trying to deceive us. Further, he gave an embarrassing freewheeling press conference (never a good idea in these situations) in which he made several unhelpful statements and appeared to be on the verge of doing the moonwalk. Now, word is, he has hired a private detective to investigate whether he’s in the photo and has had several strategy meetings with his supporters, details of which were promptly leaked to the press. The resulting stories were not flattering.

As with Warren, Northam’s poor handling of the scandal has given the scandal legs. The more he tries to deny and deflect, the worse it will be.

I submit that all three of these crises could have been prevented by telling the truth and allowing us to recognize our shared vulnerability as human beings.

Ship of ghouls: The Mignonette, cannibalism, and the law's perfect storm

Now is no time to think of what you do not have. Think of what you can do with that there is.—Ernest Hemingway, “The Old Man and the Sea”

Truth is stranger than fiction. It’s also a far better teacher. For this reason, a law student’s textbooks are filled with real cases. As we read the decisions in these landmark cases, the often dry points of law spring to life. Then, and for the rest of our lives, we never forget the law, because we never forget the people. The parties to the case become our most effective professors.

One such landmark case is Regina v. Dudley and Stephens, 14 QBD 273 DC (1884), which illustrates the crime of murder and the typically futile defense of necessity.

Embark on this ill-fated voyage, and you’ll never forget a single detail.

The Mignonette

John Henry Want had a problem. The wealthy Australian lawyer longed to fit into Sydney’s yachting society, but the more experienced yachtsmen scoffed at him. Nobody scoffed at English-built yachts, however, which were considered far superior to those made in Australia. In an attempt to win their respect, Want bought the Mignonette, an elderly 52-footer made in Southampton.

The Mignonette was too small to be seaworthy for a 15,000-mile voyage on the high seas, but there was no other practical way to transport it to Sydney. Want had the yacht retrofitted as best he could and hired a crew that consisted of Captain Tom Dudley, two experienced crew members, Edwin Stephens and Edmund Brooks, and to serve as cabin boy, 17-year-old orphan Richard Parker, who had never been to sea.

You can tell already that things aren’t going to end well for Parker.

Shipwreck

The Mignonette set sail from Southampton on May 19, 1884, and the voyage went smoothly for several weeks. To avoid high winds in the Mediterranean, Captain Dudley avoided the Suez Canal and instead opted for the long South Atlantic route.

On July 5, the yacht hit a storm in the vast South Atlantic between the islands of St. Helena and Tristan da Cunha, and the Mignonette sank quickly. The four men scrambled into the lifeboat and survived on the open seas for more than three weeks, drinking their own urine and eating a turtle they managed to catch and drag aboard.

Once the castaways exhausted the turtle meat and two tins of turnips they had salvaged from the sinking ship, they found themselves acutely dehydrated and starving to death. They began to discuss their meager options and came to this ghastly conclusion: They would resort to the Custom of the Sea.

Custom of the Sea

The Custom of the Sea is an ever-evolving set of unwritten traditions and practices that the crews of ships observe while sailing the high seas. This is distinguished from maritime law and the law of admiralty, which are codified and cohesive. The Custom of the Sea is an ancient edict to which sailors resorted when matters were grim with no rescue in sight. Stated another way, it is “desperate times call for desperate measures.”

One such desperate measure is the act of survival cannibalism in which starving sailors would draw lots to see which sailor would die so that the others might live.

Survival cannibalism is rare, of course, but we can all name a handful (sorry) of examples of it: the Donner Party, the Uruguayan rugby team featured in “Alive,” the Packer Expedition, and the Essex.

And, of course, the Mignonette.

As death drew close, the men on the lifeboat hung their heads and prepared to draw lots.

Nor any drop to drink

Before the men could draw lots, however, cabin boy Parker gave in to temptation and drank seawater, weakening him further and rendering him delirious. Mercifully, he lapsed into a coma and hovered near death.

The choice had made itself.

On July 23 or 24, Dudley and Stephens signaled to each other that Parker would be sacrificed. They decided that they would not allow him to die naturally because they reasoned that his blood would be nutritious only if it were fresh. Captain Dudley said a prayer and pushed his pen knife into Parker’s jugular vein while Stephens stood by to hold the boy down.

Later, Dudley and Stephens would claim that Brooks assented to this plan. Brooks maintained that he did not. It is undisputed that Brooks declined to participate in the killing itself.

All three men descended on Parker’s body and fed on his still warm blood, heart, liver, and other organs and flesh “like mad wolfs,” they would later recall.

Their grisly plan worked. On July 29, the passing ship Moctezuma spotted the men, and the three survivors were pulled from the bloodied lifeboat, the bottom of which was now littered with Parker’s body parts. As the Moctezuma crew members pulled the survivors aboard, Parker’s bloody viscera was visible under the cannibals’ fingernails.

Arrest and trial

The Moctezuma returned the men to England, where they went immediately to the customs house to report the incident. Captain Dudley and Stephens gave statements, which were required under the Merchant Shipping Acts in the event of a shipping loss.

Brooks had not participated in the killing, but Dudley and Stephens readily admitted the deed, perhaps believing that they were protected under the Custom of the Seas. Instead, they were arrested and charged with murder, which carried the penalty of death.

The shocking tale of the Mignonette hit the papers, and the trial was a sensation. While cannibalism is taboo and repugnant to a civilized society, public opinion strongly favored the defendants. Denizens of Victorian England agreed that if they were faced with such a decision, they too would make the same appalling choice. What else could one do?

There was another choice, however. The three men could have chosen to die alongside Parker should no rescue come.

The necessity defense

When someone is charged with murder, the accused sometimes offers an affirmative defense.

An affirmative defense says, “Yes, I did it, but I shouldn’t be held responsible because….” This is distinguished from a negating defense, which says, “No, I didn’t do it,” disproving all or part of the prosecutor’s case.

Self-defense is the prime example of an affirmative defense. The defendant says, “Yes, I committed the crime, but I should not be held responsible because I feared death or grave injury. I did it, but I had no other reasonable choice. Kill or be killed.”

This sounds similar to the plight of the Mignonette survivors: Yes, they killed Parker; they had no other choice. If they didn’t kill him, they too would die. Further, Parker would soon die anyway, so Dudley and Stephens merely hastened his death.

Self-defense doesn’t apply here, however, because Parker posed no threat to the other three men.

Instead, Dudley and Stephens attempted a “defense of necessity,” arguing that circumstances forced them to kill Parker and that they would have died but for their murderous act.

Conviction

After a long, blundering trial full of irregularities, this defense failed, which means that the English common law rejected the idea of necessity as an affirmative defense for the crime of murder. Because our law derives from the English common law, criminal law in the United States also does not recognize necessity as a defense for murder.

In fact, the necessity defense is difficult to invoke even as a defense to lesser crimes. The defense must prove these six(!) elements: 1) The threat was imminent and specific, 2) The necessity to act was immediate, 3) There was no practical alternative, 4) The defendant didn’t contribute to the threat, 5) The defendant acted out of necessity at all times, and 6) The harm caused wasn’t greater than the harm prevented. See State v. Cole, 403 S.E. 2d 117 (1991).

In Victorian England, the penalty for murder was death, and Dudley and Stephens found themselves facing the gallows. Due to the impossibility of their situation, however, the court was sympathetic and recommended clemency. The death sentences were commuted to six months in prison, after which Dudley and Stephens were freed.

Aftermath

Surprisingly, Captain Dudley embarked on another voyage to Australia, where he prospered as a boat outfitter and ship accessories dealer until he died of bubonic plague in 1900. Stephens descended into alcoholism and died in 1914. Brooks, who wasn’t charged with a crime and testified against his former shipmates, attempted to make a living as a live exhibit in freak shows. He died in 1919.

The events haunted the men for the rest of their lives.

Someone has placed a commemorative stone for Richard Parker in the churchyard of the Jesus Chapel on Peartree Green in Southampton near Parker’s childhood home in the village of Itchen Ferry.

Oddly, the real-life facts of this case are eerily similar to the fictional account in Edgar Allan Poe’s 1838 novel “The Narrative of Arthur Gordon Pym of Nantucket,” which predated the Mignonette case by nearly 50 years. In Poe’s novel, the survivors of a shipwreck kill and eat a fellow crew member in order to survive after they’ve polished off the turtle they caught.

The name of Poe’s cannibalized sailor: Richard Parker.