By Dr. Ken Broda Bahm:
It looks like we are heading into another one of those times, like the OJ or Casey Anthony trials, when all of the nation’s attention will be fixated on an interesting and high-stakes legal process. As the impeachment inquiry moves into the public realm this week, it is sure to grab an even greater share of the nation’s eyes and ears. And the difference between this legal process and the trials of OJ and Anthony is that, in a way, we all feel like we are parties to the case. Whether we voted for or against the current President, the process is one that Americans are invested in. Another difference is it isn’t a “trial” — at least not yet — and even once it does reach the Senate, it will have some important differences. Still, it is a good idea for lawyers to pay attention to the way that Americans understand and react to this process.
Trial lawyers and other students of legal persuasion should keep in mind that this emerging national drama will both elicit and shape perceptions of the legal system. It is also a handy national theater for observing the various kinds of thinking and bias that will come into play. It goes without saying, that massive partisan filters will determine both side’s perceptions. However, opinion data on impeachment over time has indicated that at least some people have changed their minds on it, and in the likely event that the Republican majority in the Senate declines to convict, the verdict from the public will still matter. So, for this post, I thought I would share a quick list of things to watch for as the process unfolds.
Expect Motivated Reasoning on Steroids
I have long focused on motivated reasoning as a staple on how to understand the ways people reach and defend a decision. The idea that our preferred conclusions drive the way we search for, understand, remember, and use reasons and evidence is definitely relevant to jury persuasion. And motivated reasoning likely reaches a high watermark with discussions like this one. Cynically, some might say that the process and the evidence don’t really matter because the lines are already drawn and most have already chosen a side. But the ways each side understands and frames the process, and the ways that the minority of true “swing voters” react to the legal case will determine how much political damage or advantage either party sustains in this process.
Check on Comprehension and Interpretation
impeachment is a famously misunderstood process, with many believing that impeachment means removal from office. Lawyers tend to understand that impeachment is really more like indictment than conviction, but more broadly, there is a high level of misunderstanding surrounding this rarely-used constitutional tool. The President himself tweeted the other day complaining of the “trial” happening in the House, when the only trial occurs after impeachment in the Senate. When this distinction between impeachment and trial seems to have been explained in nearly every media story on impeachment and people still don’t get it, factor that into what you expect jurors to understand in jury instructions.
Look for the Fairness Filter
The content matters, but so does the process. The results of this inquiry will likely be viewed as legitimate only to the extent that it seems to give a full and fair opportunity, not so much to both sides, but to their preferred side. On that score, you have the administration telling whoever will listen that its employees have “absolute immunity” from the investigation and should defy the House subpoena. And, with the remaining witnesses, you have a House process that has been criticized for being too secretive, before now being criticized for moving into the public. Reasonable people may differ over who is being fair and unfair, but expect discussion and public reactions to center on both the form and the substance of the inquiry, hearings, and trial.
Focus on Themes
The possibility of impeaching President Trump has been discussed by his opponents basically since election day. But looking at the public’s support for impeachment, you’ll note that something changed in early October, moving the national sentiment from a majority against, to a slight majority favoring. I’d argue that what changed is the availability of an easy narrative. With the emergence of the intelligence community whistle-blower, there is finally a singular and understandable claim about why impeachment might be warranted, and a theme: You can’t pressure a foreign government to dig up dirt on your political opponent. This is where the President’s supporters are still searching for a consistent thematic response: Is it ‘no quid pro quo‘ or ‘read the transcript,’ or is it that ‘that pressure is common, get over it‘ and ‘does not rise to an impeachable offense’? Or is it maybe that, ‘subordinates were running their own show without the President’s knowledge‘? As the process moves along, expect the themes to emerge and solidify just as they do during litigation.
Pay Attention to the Opinion Leaders
Finally, whether watching jurors deliberating in a mock trial or watching Americans react to the impeachment inquiry, it makes sense to pay particular attention to the opinion leaders. In the case of the national impeachment conversation, that role is probably played by the media. As much as various media sources are derided by both sides, the media is still supplying the talking points. They are a little like a domineering jury foreman: We might resent them, but there’s no question that they’re driving the discussion.
So, as the battle heats up, I think that litigators have the perfect excuse for following that coverage closely: You’re not just blowing through nonbillable time, you’re tracking a key national conversation that will be important in shaping the attitudes that your next jury brings to the legal process.
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Other Posts on Lessons from Political Speech:
- Make Your Opening (Sort of) Like a Closing: A Review of Representative Schiff’s Russia-Election Hearing Introduction
- Recognize the Weakness of ‘Hardball’ Rhetoric
- Careful of the Rebound on Negative Attacks