CAFE Insider Newsletter #44: The Power of Concession

CAFE Insider Newsletter #44: The Power of Concession

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Dear Reader,

The consequences of the accelerating impeachment inquiry will depend not only on the members of Congress supporting or opposing it, not only on their investigative tenacity and the nuggets they find. Where things wind up will depend also on public sentiment. Are the arguments well-made and in good faith? Are they marked by honest concern about the republic or are they suffused with hypocrisy?

And so in the upcoming debates about presidential misconduct and the propriety of impeachment, credibility will matter. Credibility of the President, which has long been in serious doubt; but also, credibility of his defenders, his accusers, and the parade of witnesses, some of whom will have what prosecutors call “baggage.” Maybe they live in glass houses (see, e.g., Donald Trump, Jr., opining on nepotism); maybe they have lied in the past about the very matters they are testifying about now (see, e.g., Michael Cohen during the Mueller investigation); maybe they have axes to grind or scores to settle (see, e.g., reports of what John Bolton might say when called).

There are varying approaches to handling these kinds of weakness. Some take the view that you twist the truth, turn weakness into strength, deny or obfuscate holes in your arguments, blow past any of your own conflicts of interest or inconsistent past statements. They believe that people will be confused or blinded, unable to process what is true and what is not.

I think the smarter and more credible course requires a witness or advocate to make concessions, to concede some bias or bad fact, to show overall credibility. Be forthright about it. Admit stuff. This will be more likely to bring along the public, win people to your side. The best lawyers do it in court all the time. They “take the sting” out of bad facts by telling the jury themselves, rather than waiting for their opponents to exploit those weaknesses. This is done in the overall service of the case.

George Conway and I discussed this a bit on last week’s Stay Tuned, contrasting how many Democrats defended Bill Clinton in 1998 against how Republicans are defending Trump in the context of the Ukraine scandal. Back during the last impeachment inquiry, many Clinton supporters conceded that his conduct was egregious and terrible. It was not just Senator Joseph Lieberman (who would later leave the party). The DNC chair and many other politicians scolded President Clinton, arguing only that the conduct didn’t warrant impeachment. They did not claim that the President’s lies were “perfect” and “beautiful” statements. They understood reality.

This was liberal Congressman Barney Frank opining specifically on one of the articles of impeachment against Clinton:

I do believe, as I read and heard the testimony, that the president spoke falsely when he denied being alone with Ms. Lewinsky. And I very much regret that. And I believe that, given the fact that the statute of limitations has not expired and won’t expire for some time, he’ll be subject to prosecution on that when his term expires.

In the past few days, former Vice President Biden’s son broke his silence amid the constant attacks on his behavior relating to serving as a board member of a Ukrainian company while his father ran point on Ukrainian policy. People will differ on their reactions to Hunter Biden’s television interview, but while he denied violating any ethics rules, he did himself a favor by forthrightly conceding an error in judgment by taking such a position:

In retrospect, look, I think that it was poor judgment on my part. Is that I think that it was poor judgment because I don’t believe now, when I look back on it — I know that there was — did nothing wrong at all. However, was it poor judgment to be in the middle of something that is…a swamp in—in—in many ways? Yeah.

And this:

“If your last name wasn’t Biden,” the interviewer asked Hunter, “do you think you would’ve been asked to be on the board of Burisma?”

“I don’t know. I don’t know. Probably not, in retrospect,” he said.

This likely earned the Bidens some points and some credibility.

Meanwhile, the vast majority of Trump allies seem to be perfectly happy to go along with Trump’s “perfect” and “beautiful” characterization of his forceful call with the Ukrainian president asking for an investigation of the Bidens. Presumably one can argue about whether that conversation merits an article of impeachment; it’s infinitely harder to see how you argue with a straight face it was perfectly appropriate, much less perfect. In the end, this blithe and implausible defense will erode the credibility of both Trump and his cheerleaders.

If they could at least admit the President erred, they would be on stronger ground on the ultimate impeachment question.

I address the pragmatic strategy of concession in my book, Doing Justice, and I’ve been thinking a lot about this passage lately:

Concessions are a sign of strength, not weakness, because they enhance your credibility. It’s always better to volunteer a weakness than to have your adversary point it out. I would always advise this: If you have an incriminating conversation but no tape, say so. If there are discrepancies in the testimony of your witnesses, say so. If your cooperator is likely to come off like a jerk, say so.
Defense lawyers know this. Renowned criminal defense lawyer Ben Brafman recently represented one of the most disliked defendants in recent times, Martin Shkreli. Shkreli had been charged with defrauding his investors but earned special status as “America’s most hated man” because he hiked up the price of Daraprim, a previously affordable drug used to treat patients with HIV/AIDS, by as much as 5,000 percent—an astronomical rise that left many unable to afford the lifesaving medication. It didn’t help that the “Pharma Bro” responded to any criticism with dismissive snark, like, for example, harassing female journalists and bragging on social media that he’d raise the price on more drugs, if he could. He was thoroughly detestable.
Brafman made it a point to concede that his client’s personality was wanting. He said, at sentencing, that he sometimes wanted to punch his own client in the face. That rude concession built credibility, created some separation from his client, forged a connection with the court, and gave Brafman more space to argue on his client’s behalf. Many defense lawyers fight every point, every allegation, even those that are irrefutable, irrelevant, ambiguous, or could backfire. This is not strength; it is weakness.

The President’s allies could learn something from Mr. Brafman here.

My best,

Preet

STAY TUNED LIVE TOUR

Stay Tuned is hitting the road! Join Preet and guests for a night of thoughtful and inspiring conversations in the following cities:

Denver | October 24, 2019
Shannon Watts, Moms Demand Action founder
John Hickenlooper, Former Governor of Colorado

Minneapolis | November 5, 2019
Jacob Frey, Minneapolis Mayor and civil rights attorney

Detroit | November 12, 2019
Dana Nessel, Michigan’s 54th Attorney General and long-time advocate of LGBTQ rights
Barb McQuade, Former U.S. Attorney for the Eastern District of Michigan

Atlanta | December 4, 2019
Sally Yates, a veteran of the Justice Department who served as the Acting U.S. Attorney General

SEPARATION OF CHURCH & STATE

Americas Flag, Old Glory Flies Freely In A Country Churchyard in Hope New Jersey

Twelve presidential candidates took the stage on Tuesday evening for the fourth Democratic presidential primary debate in Westerville, Ohio. Passionate arguments were presented on a variety of issues, including impeachment, health care, foreign policy, packing the Supreme Court, and gun control. All these topics warrant deliberation, but this week our focus is on an issue that surfaced in last week’s Equity Town Hall hosted by CNN.

Host Don Lemon asked Beto O’Rourke whether “religious institutions like colleges, churches, charities” that oppose same-sex marriage should lose their tax exempt status. “Yes,” replied O’Rourke, adding:

There can be no reward, no benefit, no tax break for anyone or any institution, any organization in America that denies the full human rights or the full civil rights of every single one of us.

Pete Buttigieg and Elizabeth Warren quickly distanced themselves from O’Rourke’s position. Buttigieg told CNN that eliminating the tax exemption of religious organizations would “deepen the divisions” that the country is already experiencing. Meanwhile, Warren issued a statement saying that religious institutions in the U.S. are free to determine their own beliefs, and that these institutions should not have to conduct same-sex marriage ceremonies in order to maintain their tax-exempt status.

O’Rourke’s campaign has since clarified that he was referring to institutions that take discriminatory action related to same-sex marriage as opposed to holding discriminatory beliefs regarding the same.

Even if there were policy value in denying discriminatory religious institutions tax-exempt status, would doing so be consistent with the Constitution?

President Thomas Jefferson, known as one of the founders of American religious freedom, staunchly believed that a person’s religion was between them and their god. In 1802, Jefferson responded to a “fan letter” written by the Danbury Baptist Association—a religious minority in Connecticut—that praised the President’s zealous support of religious liberty. Jefferson assuaged their fears that the state could not interfere with an individual’s right of conscience or force an individual to support a religion with which they did not agree. He wrote:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.

Contrary to popular belief, the phrase “separation of church and state” is not explicitly written in the Constitution. The expression traces back to Jefferson, who is generally credited with coining it in the now-famous letter. In Reynolds v. U.S. (1879), the Supreme Court referred to Jefferson’s emphatic assertion in the letter as “almost an authoritative declaration” as to the Founders’ intent for the First Amendment’s Establishment Clause, which prohibits the government from making any law “respecting an establishment of religion.” The clause not only prohibits all levels of government from directly establishing a religion, but also forbids the government from favoring one religion over another or favoring religion over nonreligion.

Exempting houses of worship from paying taxes—pursuant to Section 501(c)(3) of the U.S. Internal Revenue Code—has long been a core principle in the “separation of church and state,” but what is the rationale? And how does the tax-exempt status help to secure religious liberty?

In Walz v. Tax Commission of the City of New York (1970), the Supreme Court held that tax exemption for places of worship does not violate the Establishment Clause because “benevolent neutrality” toward churches and religions is “deeply embedded in the fabric of our national life.” Chief Justice Warren Burger wrote that “the grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state.” Unlike direct subsidies that would have entangled the state with religion, tax exemptions created “minimal and remote involvement between church and state and far less than taxation of churches.” The Court determined that because there was no sign of an established national church or religion, it would seem that two centuries of tax exemption have “operated affirmatively to help guarantee the free exercise of all forms of religious belief.”

Judicial precedent unequivocally affirms that denying tax-exempt status based on a group’s viewpoint would violate the First Amendment. Conditioning tax exemption for churches on having “favored” views is probably just as threatening as taxing churches outright, breaking the healthy “wall of separation between state and church” that Jefferson expressed in his letter to the Danbury Baptists in 1802.

What are your thoughts on religious organizations receiving tax-exempt status? Let us know your thoughts by replying to this email or writing to us at [email protected]

FOLLOW

Ronan Farrow—child prodigy turned author, Pulitzer Prize-winning investigative reporter, and a former Stay Tuned guest—is making headlines again. In his new book, “Catch and Kill,” Farrow reveals that a week before the 2016 election, National Enquirer executives shredded documents about President Trump that were being kept in a safe in their offices. The book is part of Farrow’s ongoing effort to expose the ways in which powerful men can use their wealth and status to conceal damaging information about themselves, especially when women are the whistleblowers. Follow @RonanFarrow to stay at the forefront of news stories that shed light on the courage and actions of whistleblowers.

RUDY IN THE MIDDLE

If you haven’t already, listen to the latest episode of the CAFE Insider podcast: “Rudy in the Middle,” and follow along with this transcript of Preet and Anne’s conversation.

*Please note, you may now manually add your unique Insider Podcast feed to your favorite podcast app. Here are the instructions.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— The CAFE Team

Tamara Sepper, Carla Pierini, Julia Doyle, Calvin Lord, David Kurlander, and Aaron Dalton

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