Courtroom trials are unpredictable affairs. They never go according to script. Almost never, anyway. The witnesses and the lawyers (and the judge) are people, not robots, so you can never be sure what they will say or do.
That’s why good trial lawyers follow a cardinal rule. In the face of an unexpectedly harmful bit of testimony, never let the sting show. The jurors are people too, and they inevitably take cues from the lawyers. A witness’s answer may seem damaging to the prosecution, but if the prosecutor seems unfazed, jurors may doubt their first impression. I remember being taught this principle in law school. Even if your own witness says something unexpected and harmful to the case, not only should you appear unperturbed, but nod as if – of course – that is the answer I expected and thank you very much.
Q: “What were you doing just before you got a look at the man running away from the bank?”
A: “I was on my fifth beer at the bar across the street, and I was agitated because I couldn’t find my glasses.”
Of course you were. I totally expected that. Nod.
Okay, that’s an extreme hypothetical, but you get the point. The worst thing you can do is reveal your sinking heart. In addition to highlighting the bad testimony, you look unprepared, unprofessional, and out of your depth. You have lost authority and credibility. You look weak, not strong. That, in the end, can be far worse for your case’s prospects than the testimony itself. One time back at SDNY, I was on the subway heading to work and reading the news coverage of a significant criminal trial we had in progress. On direct examination, a prosecutor elicited a bad answer from the government’s own witness. The prosecutor, the article said, “looked startled.” That should never happen. Never look like a deer in the headlights. That prosecutor got a talking to.
Now this may seem like an odd leap, but it has occurred to me that President Trump has fully internalized this trial principle. Think about it. While we armchair journalists are constantly chiding reporters for not shellacking the president with devastating Perry Mason questions, the truth is he gets plenty of hard and direct interrogatories. He got them from Axios’s Jonathan Swan. He got them from Fox News’s Chris Wallace. He sure got them from average citizens this week at an ABC town hall.
He may lie, dodge, bluster, bully, ramble, and fake his way through his answers. He may yell at the questioner. He may ignore the questioner. He may answer the same question one way on Monday and in the opposite way on Friday. He may make up stories and facts and people. We may judge his answers shifty or shameful, because they often are.
But there is one thing he never does. He never lets the sting show. When presented with the awful fact that almost 200,000 Americans are dead from the pandemic, he says with a straight face, sure, but it could have been millions. He says one day that he will introduce a health care plan in two weeks. When two weeks comes and goes and he is asked again, he says, yup, coming in two weeks. This should be a devastating moment, but he just brushes by it. He’s able to do this in part because integrity and intellectual honesty mean nothing to him. He cares only about the appearance of strength. Watch him in a tough interview on mute (as reportedly he himself does). Except for flashes of anger, he generally has the same demeanor in response to friendly questions as hostile ones. He never looks startled. He never seems on the ropes, even when he is. He is playing, always, to his base – his jurors – whose minds are made up, who see a strong and forceful leader, one who never backs down from these pesky reporters with their liberal biases and their gotcha questions.
The one thing Trump cannot afford to be is weak-looking. He cannot look like a deer in the headlights, and whatever you think of him, he almost never does. If he could be revealed to be weak and afraid, that might hurt him with his base, and perhaps only that. Voters, like jurors, take their cues from the players.
This is why a new digital ad campaign from the Biden folks caught my eye. Contrary to my observations above, two recent ads literally describe Trump as a “deer in the headlights.” The spot begins, “When coronavirus came, Trump froze like a deer in the headlights.” The narrator says later, “And there was our president, unprepared, indecisive, frozen.” He also says Trump has been “too scared to act, too panicked to tell the truth, too weak to lead.” The ad, interestingly, takes a new tack on Trump’s lies. It doesn’t hit him, directly, for lying. It identifies a reason for his lies. And that is the criticism, the thing that Trump can’t abide. The ad says Trump “was too panicked to tell the truth” about the pandemic. That is an interesting twist.
It’s a good ad, but I’m biased. I don’t know if it will be effective, if it will move the needle with any of Trump’s die-hard fans. But what it seeks to do is hit him where it hurts most, portray him as the one thing he strives never to look like: weak. Trump doesn’t mind looking mendacious, authoritarian, illiterate, or inarticulate.
But if he ever does look like a deer in the headlights, it’s over.
Woodward on Trial
By Sam Ozer-Staton
Death, taxes, and Bob Woodward bestsellers. The only certainties of life in Washington.
Woodward’s latest book, “Rage,” has been a fixture in the news since the longtime Washington Post journalist began teasing a series of bombshell revelations early last week.
Unlike 2018’s “Fear,” his last book covering the chaos of the Trump presidency, Woodward’s latest effort features extensive on-the-record interviews with the president himself. Over the course of 18 conversations with Woodward, Trump makes a number of startling and newsworthy comments, from bragging about classified nuclear weapons systems to mocking the idea of “white privilege.”
But the piece of news getting the most attention is what Trump told Woodward about the threat of COVID-19 — revealing what he knew about the virus, and when he knew it.
On February 7th, Trump called Woodward and recounted a recent conversation with Chinese President Xi Jinping. “Interesting setback with the virus going on in China,” Trump told Woodward. “It goes through air, Bob, that’s always tougher than the touch…You just breathe the air and that’s how it’s passed.”
Trump also seemed to have specific knowledge about the virus’s mortality rate, telling Woodward: “That’s a very tricky one….It’s also more deadly than even your strenuous flus. This is 5 percent versus 1 percent and less than 1 percent. You know? So, this is deadly stuff.”
That was not Trump’s public stance on the virus at the time of the call, when there were fewer than 15 confirmed cases in the United States. In a February 27th briefing, Trump told reporters: “I mean, view this the same as the flu…But we have it so well under control. I mean, we really have done a very good job.”
On March 6th, a week before Trump declared a national state of emergency, he told Fox News’ Sean Hannity that he thought the mortality rate was well below one percent: “When you do have a death … all of a sudden it seems like 3 or 4 percent, which is a very high number, as opposed to a fraction of 1 percent. Personally, I would say the number is way under 1 percent.”
In another phone conversation on March 19th, after the country had begun to shut down and the virus was dominating the public consciousness, Trump told Woodward: “I wanted to always play it down. I still like playing it down, because I don’t want to create a panic.”
The Biden campaign and affiliated Democratic groups have sought to make Trump’s minimization of COVID-19 a central campaign issue, turning the audio into a series of political ads.
But Trump is not the only one facing heat because of the recordings. Woodward himself has come under fire for sitting on the audio for months as President Trump continued his public campaign of downplaying the threat of the virus.
“For months many dismissed serious/need for distancing/need for masks, citing Trump. Reporting that Trump said privately how deadly COVID is/that it spread airborne could have changed those people’s behavior & saved lives,” tweeted CBS News’ Wesley Lowery.
In several interviews this week, Woodward defended his decision not to go public with the information. “The biggest problem I had,” Woodward told the Post’s Margaret Sullivan, “which is always a problem with Trump, is I didn’t know if it was true.” Woodward went on to say that his goal was to deliver “the best obtainable version of the truth” — which he claimed necessitated waiting to publish in his book.
Woodward also maintained that the information Trump shared was no smoking gun. He told NPR’s Mary Louise Kelly: “You’ve got Tony Fauci out there at the end of February saying everyone can do it, everything, and not worry. So as far as I’m concerned, it’s a China problem. And by March, it’s clearly an American problem. And so I’m asking the question, what did the president know? When did he know it? And how did he know it?”
Sitting on juicy material in order to increase book sales is not unusual journalistic behavior. However, according to David Boardman, Dean of Temple University’s School of Journalism, it is a practice that deserves some reflection. He tweeted: “This question has emerged frequently lately as journalists hold back important news for their books. In today’s life-and-death situation, is this traditional practice still ethical?”
What do you think? Should Woodward have come forward sooner?
Write to us at [email protected] with your thoughts or reply to this email.
Katie Benner covers the Department of Justice for the New York Times. Follow her @ktbenner.
*To listen to Insider content on your favorite podcast app, follow these instructions*
— Listen to this week’s episode of Stay Tuned, “What’s Eating Us.” David Chang, the restaurateur and founder of the Momofuku restaurant group, joins Preet to discuss his new memoir, “Eat a Peach.” And don’t miss the bonus, where Chang tells Preet about the time the NYC health department almost shut him down.
— Listen to this week’s episode of CAFE Insider, “Durham, Defamation, and Disenfranchisement,” where Preet and Anne break down the latest on Connecticut U.S. Attorney John Durham’s investigation into the FBI’s Russia probe, the DOJ’s decision to take over the defense of President Trump in a defamation lawsuit brought by columnist E. Jean Carroll, and a recent decision impacting voting rights in Florida.
— Look out for Friday’s new episode of United Security. Co-hosts Lisa Monaco and Ken Wainstein discuss all things Russia: the poisoning of opposition leader Alexei Navalny, the ongoing protests in Belarus, and how the U.S. should handle Putin.
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.
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The CAFE Team:
Tamara Sepper, Adam Waller, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Calvin Lord, David Tatasciore, Matthew Billy, and Nat Weiner.