By Dr. Ken Broda Bahm:
A couple of witnesses had about the most high-profile testimony turn imaginable the other day. As the public phase of the House impeachment hearings got underway on Wednesday, the first up to bat were George Kent, top State Department official for Eastern Europe, and the acting U.S. Ambassador to Ukraine, Bill Taylor. Unlike deposition or trial testimony, both faced the challenging situation of partisan questioning from a frequently-rotating cast, with one side wanting to turn them into advocates to bolster the case for impeachment, and the other side acting as though they’re already advocates and trying to knock them down.
The format for the testimony for Kent and Taylor may differ from that experienced by a typical witness. For one thing, and as a reminder of why we don’t take joint depositions, the two frequently reinforced each other and often simply said “I agree” when the other had answered a question. Large parts of the testimony also focused on hearsay. But it is important to remember that it is a hearing, not a trial. At least not yet. But even for a witness at a hearing, the risk of being pulled off track by the questioning is parallel. The two witnesses were questioned first by staff counsel for the Democratic majority (Daniel Goldman), and for the minority (Steve Castor), and then in the alternating slots of five-minute intervals (that can be suddenly yielded to another Representative) that have become a familiar part of House process. Through the ever-shifting grounds for the questioning, the witnesses mostly stuck to message and held their own. They often did so by returning to a number of common “home bases” that help witnesses generally. The idea is that, even in the face of unpredictable or distracting questioning, a witness can come across well by returning to a number of safe zones. In this post, I’ll review four of those bases.
First Base: Your Role
Both Kent and Taylor were regularly explicit in referring to their role as a witness. Both referred to their long-term nonpartisan work experience in U.S. diplomacy, and both clarified that they were here not to support impeachment and not to be an advocate of any kind, but here simply as fact witnesses under subpoena. As Bill Taylor explained at the outset, “I am not here to take one side or the other, or to advocate for any particular outcome of these proceedings. My sole purpose is to provide facts as I know them about the incidents in question as well as my views about the strategic importance of Ukraine to the United States.”
Second Base: Your Main Point
The congressional interrogators asked about a wide variety of subjects that did not bear directly on the witnesses testimony — the Mueller Investigation, the ‘Never-Trump’ GOP resistance, and the question of whether Obama or Trump gave more support to the Ukrainian government. For the most part, the two simply answered, even when, as was often the case, the answer was a simple, “I don’t know.” Those can often be the three magic words for witnesses to avoid being drawn off their ground. Another tactic, however, is to answer in a way that pivots back to your main point. For example, when Republican Representative John Ratcliffe asked if we should impeach a President for using his power to remove an Ambassador (a bit of a red herring), George Kent said, “I’m here as a fact witness,” and then added, “it is your constitutional obligation to react to the evidence before you.” Ambassador Taylor also followed suit, “Mr. Ratcliffe I would just like to say that I’m not here to do anything having to do with deciding about impeachment. That is not what either of us are here to do, that is your job.”
Third Base: Your Training
I don’t know that the first day of public impeachment hearings included many examples of top-notch legal interrogation. The cameras as well as the lawmakers’ estimates of what the public wants tends to shift things a bit. But in more common testimony settings, it can be easy for a witness to be awed by an attorney’s precision and skill. As a witness, it can be easy to forget for a moment that you also know what you are talking about. Taylor and Kent, for example, know American foreign policy and they know Ukraine, and they referred back on their professional experience often. Some witnesses in their situation will also conduct practice testimony, or “murder boards,” in order to get ready. It’s a good idea for any witness: Remember your training and expertise generally, and make sure you are trained for and practiced in the specific testimony and know what to expect.
Home Base: Your Words (Not Theirs)
In his questioning, the House minority’s staff attorney, Steve Castor, tried to get Bill Taylor or George Kent to confirm any element of the theory that Ukraine had colluded with the Democratic National Committee to frame Russia for election interference, including Trump’s feeling that the Ukrainian establishment “were out to get him.” He didn’t succeed in getting the witnesses to endorse that language because they, properly, thought their own words were better. There is a big advantage for witnesses in situations like the House impeachment hearings: They get to make an opening statement. Both took full advantage of that and provided comprehensive, well-written and detailed opening statements that covered the full scope of their expected testimony. This works well because it allows listeners to hear their full story upfront as a continuous narrative before it is covered in a chopped and piecemeal way through questioning. But it also works because it provides an easy lifeline for the witness: When in doubt, just return to what you said in your opening statement. Most witnesses, of course, do not get the opportunity for an opening, but they can still as a preparation step, create their own list of expected ‘talking points’ that will at least serve that second function, the ability to bridge back to the home base of your main message. More generally, it is a good idea for witnesses to answer in full sentences, breaking out of the “Yes or no” trap, to just answer in your own words.
There’s one caveat to arming witnesses with the idea that they can keep returning to their home base, and it is an important caveat: You still have to answer the question. Even when the questioner is an adversary bent on making you look bad, the legal process still gives them the right to an answer. So answer, then pivot back to a safe base.
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Other Posts on Witness Testimony:
- Whistleblowers, Remember Credibility is Still Part of the Story
- Witness Testimony: Understand the Confidence/Competence Circle
- Trial Witnesses, Un-Lead the Questions
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