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.

Hunchin' of the voting party: Has Texas got an illegal voter problem?

Texas Attorney General Ken Paxton announced on January 25, 2019, that Texas Secretary of State David Whitley had identified 95,000 non-citizens on Texas voter rolls, and it appears that 58,000 of these people have voted in an election from 1996 to 2018.

President Trump repeated this claim on Twitter and offered it as evidence that illegal immigrants are voting in U.S. elections, which means that the need for a border wall is urgent. Several bloggers and media personalities further sounded the alarm.

It does sound pretty bad. It’s a terrible blow to those who argue that voter fraud is rare and that illegals don’t vote in large numbers. This isn’t a handful of votes we’re talking about; it’s 58,000! If true, this is a significant problem.

Texas is on the border, of course, and so it has a large population of Mexican and Central American immigrants—both legal and illegal. It also has one of the strictest voter ID laws in the nation.

How could this happen?

Green cards and visas

First, it’s important to understand the underlying claim, which has been distorted as it has been repeated.

Attorney General Paxton and Secretary Whitley did not claim that these voters are illegal immigrants. Instead, they used the term “non-citizens.”

Nobody on this list is an illegal immigrant, it turns out. The list includes only non-citizens who are Lawful Permanent Residents (LPR) or visa holders.

LPRs are citizens of another country who have been granted the right to reside permanently in the U.S., through a lengthy application process. (An LPR is said to have received a “green card” when his or her application to become an LPR is approved, because the LPR identification card was green when the term was coined.)

Once an LPR has resided in the U.S. for five years, he or she is allowed to apply for U.S. citizenship.

A visa holder is anyone who has permission to be in the U.S. There are various types of visas (from permanent immigrant visas to short-term tourist visas). Some visa holders become LPRs, while some do not.

In Texas, LPRs and certain visa holders are allowed to apply for a provisional Texas driver’s license. Illegal immigrants are not.

LPRs, visa holders, and other legal resident non-citizens are not allowed to register to vote in Texas, however.

How they got the numbers

The Texas Secretary of State’s office asked the Texas DMV to supply a list of LPRs and visa holders who had gotten Texas driver’s licenses between 1996 through 2018.

The Secretary of State’s office then took that list of names and compared it with the list of registered voters in Texas from the same time period. This search returned 95,000 matches of people who once held Texas driver’s licenses as LPRs/visa holders and who were also registered to vote in Texas at some point.

Of this list of 95,000, it appears that 58,000 have cast a vote in at least one election.

A critical eye

Voters’ rights and immigrant advocates in Texas argue that some of the cases may be mistaken identity. In other words, the names may be substantially similar, but the voting record may belong to a person with a similar name and address who is a U.S. citizen.

Further, the report does not account for the fact that more than 50,000 LPRs in Texas become naturalized U.S. citizens every year. For example, an LPR who got a Texas driver’s license in 1996 could have become a citizen in 2001, and may have registered to vote at that time. The period in question spans 22 years (1998-2012), and the matches were not compared with a list of naturalized citizens from that period. Visa holders may become LPRs and then apply for citizenship after five years’ residence as an LPR.

Under Texas law, election officials must mail a notice to voters 30 days prior to their voter registration being revoked. The voter then has this 30-day period to show proof that his or her voter registration is valid. (In this case, the voter would submit immigration paperwork to prove citizenship.)

A similar 2012 matching report in Colorado did not lead to discoveries of voter fraud or other illegal voting, and no changes were made based on that report.

Until the Texas matches are verified (by allowing those suspected of voting illegally to provide proof of citizenship and by asking county voting officials to verify identities), it is premature to say that 58,000 people voted illegally in elections in Texas from 1996 through 2018.

The truth helps: our search for something real

“Above all, don’t lie to yourself. The man who lies to himself and listens to his own lie comes to a point that he cannot distinguish the truth within him, or around him, and so loses all respect for himself and others. And having no respect he ceases to love.”—Fyodor Dostoevsky, “The Brothers Karamazov”

“Don’t say that you’re telling the truth. I don’t know what truth is. Report the facts.”—Conrad Fink, intimidating but legendary UGA journalism professor

Before I was a lawyer, I was a journalist.

Both professions value facts, which we should define as statements that are supported by empirical evidence.

The public trusts neither profession, however, and it hurts to hear my colleagues targeted with “first we kill the lawyers”-style comments, while once-trusted news sources are derided as “fake news.”

In a way, I understand it. I’m being cynical here, but political and commercial influencers try to persuade us to believe THEIR version of the truth so they can win our votes and our dollars.

There’s nothing wrong with this--up to a point. Political hucksterism and sales puffery are an American tradition.

It becomes a problem when we’ve lost faith in our system of government. If we don’t believe that our vote matters, then we feel we haven’t got a voice. We’re not invested in the system, and our representative republic is compromised.

Reporting the facts

While journalistic accuracy is a vast subject and is outside the scope of this post, I wanted to explain the above quote from my journalism professor, Conrad Fink, because I think it makes an important point about truth.

In class, Mr. Fink would pose as various public officials and hold mock press conferences. He would then grade us on the quality of our questions and on our resulting mock news articles.

He was a stickler for accuracy. He would penalize us for failing to ask the speaker how to spell his name—and for misspelling it in our article. He took even more points off if you took one of his statements at face value and failed to ask follow-up questions.

One of his pet peeves was our tendency to be sloppy with how we quoted sources. Don’t say, “The mayor believes…” or “The witness saw….” You don’t know that!

The correct way to do it: “The mayor said he believes that the factory will create jobs” or “The witness said that she saw a red car in the driveway.”

It sounds nitpicky, but it’s important. We don’t know what the mayor thinks or what the witness saw. We can only know what these people SAY. We report the facts and leave it up to the reader to determine the TRUTH.

It’s the same with law. We submit evidence, but it is up to the trier of fact to decide whether the evidence is credible and how much weight to give it. We report the facts and leave it up to the jury to return a verdict.

These are noble statements, but how do we get it so wrong? Why are we all seeing the same things but perceiving them differently?

What is the truth, and why can’t we find it?

Confirmation bias

We like to think that we form our opinions by gathering reliable information and then using those facts to shape our well-reasoned opinion.

We do the opposite, however.

Instead, we form our opinions, and then we cherry-pick facts that support our opinion. We give greater weight to information that is favorable to our viewpoint, while we discount or ignore information that contradicts it.

This phenomenon is called confirmation bias, and we all do it.

No matter what your political beliefs are, you’ve probably disagreed with someone recently about politics. You were frustrated to find that, the more facts you offered to support your argument, the more your friend defended HIS argument. You’d think you could change your friend’s mind by calmly offering facts that disprove his theory, but you can’t.

Surprisingly, the opposite is true. The more you argue, even when you’re offering verifiable facts, the more attached your friend becomes to his theory. Remember, we form our opinions emotionally and not factually, so we’re emotionally attached to them. When others attack our opinion, we’re defensive and hold our opinion even closer in order to protect it. It reminds me of the way we defend our family members, even when we know they’re imperfect. We can criticize them, but if someone else does, “Hey! That’s my sister you’re talking about!”

Case study: Vaccines

The ongoing debate regarding the safety and efficacy of vaccines is the perfect tool to understand confirmation bias.

Consider an argument I witnessed recently between a person who believes vaccines are safe and effective, and someone who thinks they are unsafe and unnecessary.

The anti-vaxxer’s main points were: 1) Big pharma and doctors make more money when we’re sick, so they conspire to keep us that way. 2) Vaccines contain harmful chemicals that can injure young children. 3) Vaccines do not prevent disease, and it is instead other phenomena that have eradicated disease (such as the availability of better health care and improved sanitation). 4) Anecdotes featuring children who were vaccinated and developed neurological symptoms thereafter.

The pro-vaxxer’s main points were: 1) That’s ridiculous about big pharma. 2) Vaccines don’t contain harmful chemicals, and they’ve “greened” vaccines in the last few years. 3) Vaccines prevent disease. Diseases have been eradicated, and study after study proves the safety and efficacy of vaccines. 4) We were vaccinated, and we turned out fine.

If you believe vaccines are safe and effective (as do I), you’re rolling your eyes at the anti-vaxxer’s familiar arguments. You’ve noticed that she did not provide any evidence to support her theories. She’s a victim of confirmation bias!

BUT WAIT: Did you notice that the pro-vaxxer didn’t offer any evidence to support his counterarguments? While he could have easily located peer-reviewed scientific studies to show that vaccines are safe and effective, he had never done so and could not name any diseases that had been eradicated.

The anti-vaxxer is a victim of confirmation bias. She can’t support her arguments with facts and was quite defensive when challenged. The same is true of the pro-vaxxer, however.

They formed their opinions without gathering facts, and they walked away from the argument even more convinced that their position was the correct one.

Us and them

Our judgment is compromised by confirmation bias, and it can be further muddied by our tribal mentality. We pick a side, and we stick with it.

My friend Tim and I have frequent deep, philosophical conversations. I thoroughly enjoy these talks, and Tim’s perspective makes me a deeper, more careful thinker. Everyone should have such a friend!

Once Trump was elected president, we noticed that people who criticized Obama for his presidential power grabs were supportive when Trump committed similar overreaches.

We theorized that those who identify themselves as either conservative or liberal do not necessarily subscribe to the full range of conservative or liberal ideals. Instead, they choose their party based on a single issue, or perhaps two.

For example, we surmised that someone who is anti-abortion and pro-gun rights would likely choose to vote Republican, even if they weren’t particularly interested in, say, limited government and the free market. Meanwhile, a liberal voter may not be invested in core liberal principles but may support Democrat policies on gay marriage or single-payer health care, for example.

In these cases, the constituent votes Republican or Democrat accordingly, but he or she would continue to vote this way even if the candidate was a member of their party but didn’t exactly embrace the party’s core principles. In other words, as long as the candidate’s policies supports MY core principles, I’ll vote for the candidate even if the rest of the candidate’s platform is counter to my chosen party’s philosophy.

Recently, we wondered if it’s not even deeper than that. I wonder if we choose a side, and then stick with it until it becomes impossible for us to do so. Until we cross that line, however, we stick with our “side” past the point of all reason.

Trump provides an excellent example of this. Pre-Trump, conservative voters abhorred socialism and presidential overreach and valued small government, constitutional originalism, family values, and military service. Suddenly, we’re being told “I voted for a president, not a pastor” and “Trump should use his emergency powers to bypass the legislature and use eminent domain to build that wall!”

My law school classmate argued that Trump (strong, central federal government) should take control of pharmaceutical companies (the private means of production) so Americans could buy medicine cheaply (for the greater good of the collective). Let’s have some price controls to manage this free market economy. Finally, we’ve gotten rid of that Marxist Obama!

Obama supporters weren’t immune to this, however. I was stunned to find that liberal voters who had protested war under Republican presidents now overlooked the war machine’s continued grind under Obama, with its trillion-dollar expenditures, drone strikes, failure to address Guantanamo, assassination of Gadaffi, and various other hawkish decisions made by Obama with Hillary Clinton as Secretary of State.

Confirmation bias causes us to cherry-pick facts, but apparently it also causes us to cherry-pick wars!

We’ve chosen our team, and once we’re firmly attached, we’ll be true to our school until we conclude that it has become untenable.

Your level of tenable may vary.

Survival of the fittest

A tribal mentality sounds primitive and therefore sounds like a bad thing.

In a way, it’s necessary, however.

Evolutionary biology required us to form tribes and to be wary of new people and new ideas. Having an open mind and a childlike curiosity would get you eaten by a saber-tooth tiger or enslaved by a rival clan. (This is primarily why, despite his faithful adherence to a paleo diet and vigorous exercise routine, the Paleolithic man had a short lifespan.)

This fear of the other has followed us into the modern age and is likely a basis for irrational and harmful tendencies, such as racial prejudice and antisemitism.

To be fair, however, it would be hard to make decisions without at least a moderate amount of group consensus. We can’t painstakingly weigh every minute decision. Sometimes, it’s necessary to follow your tribe, and a two-party system tends to bring things into balance.

We’re social animals, and we make judgments socially, for better or for worse.

I want the truth

It can be hard to separate fact from fiction, but if we’re going to outsmart confirmation bias, we’ve got to try.

Recognize bias

We’re all biased, but we’re ashamed of this so we try to ignore it. We shouldn’t.

When I believe that I may be giving too much weight to one set of facts, I play a mental trick on myself and pretend that I’m a person who believes the opposite. How would I view these facts if I were on the other “side”? This is uncomfortable, but it’s worth it.

I also use this to dismantle road rage. When someone cuts me off in traffic, rather than blow my horn in anger, I pretend that the other driver is me. Maybe I’m unfamiliar with the neighborhood, or a family member is sick and I’m distracted.

We judge our actions and statements by our underlying intentions. We judge other people’s actions and statements by the things themselves. If you can make this mental switch, you can trick yourself into getting around your biases.

Real news

In the Internet age, so many websites masquerade as legitimate news sources. There’s nothing wrong with blogs, but it’s just one person’s analysis (including this one).

At least make sure it’s a dot-com and not a dot-com-co (say… nbcnews.com and not nbcnews.com.co). Also, is it a news source at all, or a special interest group with a blog (such as environmental group or perhaps a religious organization)?

Many people check suspicious stories through Snopes or PolitiFact, while others do not trust these fact-checking sites. Still, if you read their reports, you’ll see that they list their sources. You can check the sources yourself if you don’t trust the fact-checkers.

Even if it is a legitimate news source, however, the story can be hastily written and therefore inaccurate.

How many sources are cited and are the sources reliable?. Even if it’s a public official who is in a position to know, do they offer evidence of what they’re saying? Also, it’s worthwhile to examine whether the person is who they claim to be.

For example, someone recently disagreed with a statement I had made on immigration, and to support his argument, he sent me a link to a news article from a right-wing website. The article quoted a man who identified himself as a rancher who owns land on the Mexican border in a particular county in Arizona and claimed to have found discarded Muslim prayer rugs on his property, meaning that Muslim terrorists were entering the U.S. at this point. Because of MY confirmation bias, I was skeptical of this man’s statements. I accessed the real property records of this county and found that no one of this name owned property anywhere near the Mexican border. In fact, this man owned a modest home in a subdivision 20+ miles from the border. He had recently bought the home, where he had moved from Berkeley, Calif., and has apparently never worked in ranching (according to his profile on LinkedIn).

Reporters should be doing this follow-up, but if they don’t, you can do it with public records available for free on the Internet.

The American Press Institute has published a guide on how to tell if a news source is legitimate. I find it thorough, fair, and helpful: https://www.americanpressinstitute.org/publications/six-critical-questions-can-use-evaluate-media-content/

Socratic method

When someone is trying to convince me to adopt their political position, I listen carefully but then ask: What are the downsides to this policy?

Law students recognize this as the “argue both sides” exercise. It’s very effective, but don’t just ask other people to do it. Do it to yourself. You’ll find weaknesses in your own argument.

If an argument can survive this, it’s probably a sound one.

Follow-up questions

I try not to believe everything that I hear.

I ask follow-up questions to see if the story holds up.

For example, people often tell me that they’ve witnessed shoppers buying beer and cigarettes with Food Stamps. (You can’t buy beer and cigarettes with Food Stamps, and one wonders how the witness knew how a stranger was paying with an EBT card and not a regular debit card.) You won’t get very far by saying that, however. Instead, I ask: “Which store? When was this, approximately? Did they go through the line to buy the beer, and then pay with the same card when they went to customer service to buy the cigarettes?” By this point, the story has fallen apart.

This is a helpful tool to examine specious anecdotal evidence. It also makes you popular at dinner parties. Everyone loves to have their stories picked apart by a self-righteous lawyer type!

Truth or consequences

As I was writing this post, I read the ideas of a few philosophers on the concept of truth itself.

Many wonder whether truth exists at all.

Who can say, but I’m with Conrad Fink on this one: Give me the facts, and I’ll do my best to find the truth.

What other choice have we got?