Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


Government law enforcement officials have a pretty high profile right now. That’s especially true as they’re increasingly moving into the category of being former law enforcement officials after being removed by President Trump. There was U.S. Attorney Preet Bharara in New York, and more recently, of course FBI Director James Comey who became former FBI Director this past Tuesday. And the day before that, the one in the spotlight was former Acting U.S. Attorney General Sally Yates. She served in that role for only 10 days before being removed by President Trump after refusing to enforce the President’s controversial travel ban. On Monday she testified before the U.S. Senate Judiciary subcommittee hearing on Russian interference in the 2016 presidential election. And, from many sources at least, her testimony has earned high praise. The events have played out like an episode of The West Wing: Already seen as a hero after taking a principled stand on the President’s attempt to partially fulfill a campaign promise to bar Muslims from entering the country, she held her own against the attempts of many GOP Senators to paint her as a partisan, and came off as polite, prepared, and fundamentally tough.

In other words, she came across exactly the way you would want an expert witness to come across. Experts need to be focused on their own role, methods, and conclusions, while also being savvy enough to recognize an attack when they hear one and confident enough to turn some of these attacks back against the other side. I have written before on the advantage of treating cross-examination as a “polite struggle” and in employing the “counterpunch” wherever you can. In my view, Yates’ performance during subcommittee testimony provides a good and timely example of some of the ways that experts can do that. In this post, I will share and discuss some of those examples from her testimony transcript 

Know Your Role

While it was not the topic of the hearing, Sally Yates understood that her earlier decision on the travel ban would come up, because it goes to her credibility. On cue, Senator Cornyn asked about Ms. Yates whether that decision was inconsistent with her role to reasonably defend the actions of the administration. She answered,

It is correct that often times, but not always, the civil division of the Department of Justice will defend an action of the president or an action of congress if there is a reasonable argument to be made. But in this instance, all arguments have to be based on truth because we’re the Department of Justice. We’re not just a law firm, we’re the Department of Justice.

Later on, responding to the same question from Senator Kennedy, she expanded on this point, explaining that any defense of the action would have to include the argument that the executive order had nothing to do with religion, and based on candidate Trump’s past statements, that would be a difficult argument to ground in truth. 

Her response on that theme reflected careful attention to the exact nature of her role, which isn’t to simply defend the administration no matter what, but to reasonably ground her arguments in truth as well. That role parallels the expert’s role, and the approach in answering reflects the expert’s need to display a kind of qualified independence. To Yates, the DOJ is “not just a law firm,” and the legal expert is “not just an advocate.” Always a risk of being seen as a hired gun, a good expert will emphasize a simple and clear explanation of what their role actually is: To conduct an analysis and report those results to counsel no matter what those results turn out to be.  

Know Your Questioner

Consistent with knowing their role, experts like to stay within their box: their area of expertise, their methods, their conclusions. That, of course, is wise. But at the same time, it helps the expert to know their adversary as well. What are their goals and themes? What questions and tactics have they pursued with prior witnesses? Fundamentally, how are they hoping to undermine your testimony? 

In the case of Sally Yates’ testimony, she knew some of the senators would focus on the perceived disloyalty in failing to enforce the President’s order. On that theme, it helped to know what those senators had said previously. Again in response to Senator Cornyn, she clarified:  

Let me make one thing clear. It is not purely as a policy matter. In fact, I’ll remember my confirmation hearing [For Deputy Attorney General]. In an exchange that I had with you and others of your colleagues where you specifically asked me in that hearing that if the President asked me to do something that was unlawful or unconstitutional and one of your colleagues said would just reflect poorly on the Department of Justice, would I say no? And I looked at this, I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with principles of the Department of Justice and I said no. And that’s what I promised you I would do and that’s what I did.

In this case, it was a turn the senators were not able to answer: I only did, she said, what you asked me to commit to doing. 

Answer the Question and the Implication

It is helpful to think of a question as having two parts: the question itself and the implication that the questioner hopes to convey to the audience. When cross-examination is well prepared, the questions aren’t really questions, they’re arguments. The question combined with your response — and sometimes just the question itself, not matter how you respond — carries the intended message for jurors. 

In Sally Yates’ testimony, Senator Cruz tried to convey the argument that the attorney general lacks the authority to defy an order based on simple disagreement. 

Cruz: And if an attorney general disagrees with a policy decision of the president — a policy decision that is lawful — does the attorney general have the authority to direct the Department of Justice to defy the president’s order? 

Yates: I don’t know whether the attorney general has the authority to do that or not. But I don’t think it would be a good idea. And that’s not what I did in this case.

Note that Cruz is asking hypothetically about “an attorney general,” but Yates goes beyond just answering in order to address the obvious implication: “And that’s not what I did in this case.”  

Anticipate and Answer

The coup de grace of Ms. Yates’ testimony was also at Ted Cruz’s expense. In what was clearly intended to be the Senator’s gotcha moment, he brought up the legislative authority for President Trump’s travel ban. Yates, however, anticipated that and came with her own legislative authority that post-dated the Senator’s. Then, she went one better and reframed it as a constitutional issue and not just a matter of legislative wording. The exchange went like this:   

Cruz: By the express text of the statute [8 USC Section 1182], it says, quote, “whenever the president finds that entry of any alien or of any class of aliens into the United States would be detrimental to the interest of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate.” Would you agree that is broad statutory authorization?

Yates: I would, and I am familiar with that. And I’m also familiar with an additional provision of the INA that says no person shall receive preference or be discriminated against an issuance of a visa because of race, nationality or place of birth, that I believe was promulgated after the statute that you just quoted. And that’s been part of the discussion with the courts, with respect to the INA, is whether this more specific statute trumps the first one that you just described. But my concern was not an INA concern here. It, rather, was a constitutional concern, whether or not this — the executive order here — violated the Constitution, specifically with the establishment clause and equal protection and due process.

Of course, politically, readers might support Cruz or might support Yates. But tactically, the advantage goes to Yates, in my opinion, because she anticipated the argument and prepared for it, then she kept her answer clear, brief, and assertive rather than defensive. Just like an expert should. 


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Photo Credit: Renegade98, Flickr Creative Commons