Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

Trumputin

Well, it has been yet another fascinating week for people like me who are interested in political communication. This week, Congress kicked off hearings dealing with some explosive charges regarding a foreign country’s influence on our election, and possible coordination with a political campaign. On Monday, Adam B. Schiff, who represents California’s 28th Congressional District in the U.S. House of Representatives and is a ranking member of the House Permanent Select Committee on Intelligence, provided a compelling introduction when opening the hearings looking at contacts between President Trump’s campaign and Russian officials.  As I watched his remarks (video is available here, and a full transcript is here), it reminded me of a good opening statement in trial. Of course, there is an important difference between an investigation and a trial, and an important difference between prefatory remarks and conclusions.

But what stands out to me from Representative Schiff’s message is that, for an opening, it is awfully like a closing. He starts by telling the story of everything that is known from the public message. The framing of his message is, “Here’s what we know now… and it is more than enough to justify digging in a full investigation.” In a trial, the reference point would be on “Here is what the evidence will show,” but rather than just being a preview, or as the adage says, the “picture on the top of the puzzle box,” the point is to build the case itself. In court, of course, you cannot literally argue, but if your judge or jury doesn’t know what the argument will be, then you aren’t building the right foundation for what’s to come. The opening should instill a conviction or at least a solid frame of reference from the outset. Reviewing Schiff’s introduction, widely shared on social media in the past few days, I believe he does just that. Perhaps that shouldn’t be surprising coming from a former prosecutor. Another representative with the same background, Trey Gowdy of South Carolina said, “The courtroom is different from a committee hearing room in almost every way, but Adam has managed to make the transition well.” 

Whether you’re following the story or not, and whether you think it’s nothing or think it’s a big deal, Representative Schiff’s statement is worth sharing at length. So in this post, I thought I would share it along with my own commentary pointing out where it illustrates a few best practices in trial openings.

Rep. Adam B. Schiff’s March 20, 2017 Hearing Opening Statement (With My Commentary) 

Last summer, at the height of a bitterly contested and hugely consequential Presidential campaign, a foreign, adversarial power intervened in an effort to weaken our democracy, and to influence the outcome for one candidate and against the other. That foreign adversary was, of course, Russia, and it acted through its intelligence agencies and upon the direct instructions of its autocratic ruler, Vladimir Putin, in order to help Donald J. Trump become the 45th President of the United States.

Schiff begins by referencing what is already known. He provides a clear statement of focus, in simple and persuasive terms. He starts without exaggeration or flourish. Starting out low key is a good idea in all settings where the credibility of the message is contested. Advocates should definitely gain attention in the first few minutes, but any moments of high rhetoric should be saved for later, after you have gained credibility and hopefully established at least a somewhat favorable perception. 

The Russian “active measures” campaign may have begun as early as 2015, when Russian intelligence services launched a series of spearphishing attacks designed to penetrate the computers of a broad array of Washington-based Democratic and Republican party organizations, think tanks and other entities. This continued at least through winter of 2016.

While at first, the hacking may have been intended solely for the collection of foreign intelligence, in mid-2016, the Russians “weaponized” the stolen data and used platforms established by their intel services, such as DC Leaks and existing third party channels like Wikileaks, to dump the documents. The stolen documents were almost uniformly damaging to the candidate Putin despised, Hillary Clinton and, by forcing her campaign to constantly respond to the daily drip of disclosures, the releases greatly benefited Donald Trump’s campaign.

None of these facts is seriously in question and they are reflected in the consensus conclusions of all our intelligence agencies.

He begins with what isn’t contested (or, in this case, is at least less contested).  Schiff references the consensus in the same way the attorney might emphasize what the two sides agree upon before honing in on the dispute. 

We will never know whether the Russian intervention was determinative in such a close election. Indeed, it is unknowable in a campaign in which so many small changes could have dictated a different result. More importantly, and for the purposes of our investigation, it simply does not matter. What does matter is this: the Russians successfully meddled in our democracy, and our intelligence agencies have concluded that they will do so again.

He also emphasizes what isn’t the focus. Schiff’s distinction helps to disarm a common strawman on this issue: that Russian interference did not skew the ultimate result. What the result would have been without that intervention isn’t the issue, and probably isn’t knowable. Similarly it can help jurors to know what “simply does not matter” at the start of a case presentation in order to prevent it from being a distraction.   

Ours is not the first democracy to be attacked by the Russians in this way. Russian intelligence has been similarly interfering in the internal and political affairs of our European and other allies for decades. What is striking here is the degree to which the Russians were willing to undertake such an audacious and risky action against the most powerful nation on earth. That ought to be a warning to us, that if we thought that the Russians would not dare to so blatantly interfere in our affairs, we were wrong. And if we do not do our very best to understand how the Russians accomplished this unprecedented attack on our democracy and what we need to do to protect ourselves in the future, we will have only ourselves to blame…

Schiff puts the hacking in a broader context by linking it to the experiences of other countries. In so doing, he explicitly links the investigation to the broader principle at stake. That illustrates an advocate’s basic need to identify motivation. Any audience that is expected to attend to and understand a potentially complex argument needs at least an implicit answer to the question, “What are we fighting for, in this case?” It isn’t just a matter of reacting to facts, it is a matter of upholding some kind of moral necessity. After laying out the principle at stake, he gets to the timeline. 

Here are some of the matters, drawn from public sources alone, since that is all we can discuss in this setting, that concern us and should concern all Americans.

In early July, Carter Page, someone candidate Trump identified as one of his national security advisors, travels to Moscow on a trip approved by the Trump campaign. While in Moscow, he gives a speech critical of the United States and other western countries for what he believes is a hypocritical focus on democratization and efforts to fight corruption.

According to Christopher Steele, a former British intelligence officer who is reportedly held in high regard by U.S. Intelligence, Russian sources tell him that Page has also had a secret meeting with Igor Sechin, CEO of Russian gas giant Rosneft. Sechin is reported to be a former KGB agent and close friend of Putin’s. According to Steele’s Russian sources, Page is offered brokerage fees by Sechin on a deal involving a 19 percent share of the company. According to Reuters, the sale of a 19.5 percent share in Rosneft later takes place, with unknown purchasers and unknown brokerage fees.

Also, according to Steele’s Russian sources, the Trump campaign is offered documents damaging to Hillary Clinton, which the Russians would publish through an outlet that gives them deniability, like Wikileaks. The hacked documents would be in exchange for a Trump Administration policy that de-emphasizes Russia’s invasion of Ukraine and instead focuses on criticizing NATO countries for not paying their fare share – policies which, even as recently as the President’s meeting last week with Angela Merkel, have now presciently come to pass.

All of this, of course, depends on a witness. And a witness is only as strong as that witness’s credibility. This, of course, will be a key point as the narrative in the now famous “Russian Dossier” will stand or fall based upon the level of corroboration it receives. Still, Schiff takes a moment to comment on the credibility of the individual with the cinema-ready name of Christopher Steele, noting that he is a former British intelligence and evidently respected by U.S. intelligence. The lesson: If your case depends on witness credibility, you should start building credibility for the witness before your target audience meets that witness. 

In the middle of July, Paul Manafort, the Trump campaign manager and someone who was long on the payroll of Pro-Russian Ukrainian interests, attends the Republican Party convention. Carter Page, back from Moscow, also attends the convention. According to Steele, it was Manafort who chose Page to serve as a go-between for the Trump campaign and Russian interests. Ambassador Kislyak, who presides over a Russian embassy in which diplomatic personnel would later be expelled as likely spies, also attends the Republican Party convention and meets with Carter Page and additional Trump Advisors JD Gordon and Walid Phares. It was JD Gordon who approved Page’s trip to Moscow. Ambassador Kislyak also meets with Trump campaign national security chair and now Attorney General Jeff Sessions. Sessions would later deny meeting with Russian officials during his Senate confirmation hearing.

Just prior to the convention, the Republican Party platform is changed, removing a section that supports the provision of “lethal defensive weapons” to Ukraine, an action that would be contrary to Russian interests. Manafort categorically denies involvement by the Trump campaign in altering the platform. But the Republican Party delegate who offered the language in support of providing defensive weapons to Ukraine states that it was removed at the insistence of the Trump campaign. Later, JD Gordon admits opposing the inclusion of the provision at the time it was being debated and prior to its being removed.

Schiff is laying out a circumstantial argument based on the timeline. In the right situation, of course, circumstantial evidence can be as strong as any other evidence. Lawyers know that, but audiences, especially when skeptical, can see it all as coincidence. So at this point, Schiff is just laying out the sequence and saving the conclusions for later after the listener is more likely to be onboard. 

Later in July, and after the convention, the first stolen emails detrimental to Hillary Clinton appear on Wikileaks. A hacker who goes by the moniker Guccifer 2.0 claims responsibility for hacking the DNC and giving the documents to Wikileaks. But leading private cyber security firms including CrowdStrike, Mandiant, and ThreatConnect review the evidence of the hack and conclude with high certainty that it was the work of APT28 and APT29, who were known to be Russian intelligence services. The U.S. Intelligence community also later confirms that the documents were in fact stolen by Russian intelligence and Guccifer 2.0 acted as a front. Also in late July, candidate Trump praises Wikileaks, says he loves them, and openly appeals to the Russians to hack his opponents’ emails, telling them that they will be richly rewarded by the press.

On August 8th, Roger Stone, a longtime Trump political advisor and self-proclaimed political dirty trickster, boasts in a speech that he “has communicated with Assange,” and that more documents would be coming, including an “October surprise.” In the middle of August, he also communicates with the Russian cutout Guccifer 2.0, and authors a Breitbart piece denying Guccifer’s links to Russian intelligence. Then, later in August, Stone does something truly remarkable, when he predicts that John Podesta’s personal emails will soon be published. “Trust me, it will soon be Podesta’s time in the barrel. #Crooked Hillary.”

In the weeks that follow, Stone shows a remarkable prescience: “I have total confidence that @wikileaks and my hero Julian Assange will educate the American people soon. #Lockherup. “Payload coming,” he predicts, and two days later, it does. Wikileaks releases its first batch of Podesta emails. The release of John Podesta’s emails would then continue on a daily basis up to election day.

At this point in the narrative, Schiff has shared what is probably the best circumstantial evidence so far. It is hard to come up with any explanation for Roger Stone’s role that doesn’t involve collusion. To many, it seems at least close to a smoking gun. But instead of declaring it as such, he is still showing persuasive restraint, with the phrase “remarkable prescience” serving as a good example of rhetorical understatement. The idea is that the listeners should draw their own conclusion, thinking, “No, that isn’t prescience…” on their own.  

On Election Day in November, Donald Trump wins. Donald Trump appoints one of his high profile surrogates, Michael Flynn, to be his national security advisor. Michael Flynn has been paid by the Kremlin’s propaganda outfit, RT, and other Russian entities in the past. In December, Michael Flynn has a secret conversation with Ambassador Kislyak about sanctions imposed by President Obama on Russia over its hacking designed to help the Trump campaign. Michael Flynn lies about this secret conversation. The Vice President, unknowingly, then assures the country that no such conversation ever happened. The President is informed Flynn has lied, and Pence has misled the country. The President does nothing. Two weeks later, the press reveals that Flynn has lied and the President is forced to fire Mr. Flynn. The President then praises the man who lied, Flynn, and castigates the press for exposing the lie.

Schiff moves swiftly past the election result, in keeping with his earlier point.  Instead of focusing there, he moves on to tie in the Michael Flynn resignation.  

Now, is it possible that the removal of the Ukraine provision from the GOP platform was a coincidence? Is it a coincidence that Jeff Sessions failed to tell the Senate about his meetings with the Russian Ambassador, not only at the convention, but a more private meeting in his office and at a time when the U.S. election was under attack by the Russians? Is it a coincidence that Michael Flynn would lie about a conversation he had with the same Russian Ambassador Kislyak about the most pressing issue facing both countries at the time they spoke – the U.S. imposition of sanctions over Russian hacking of our election designed to help Donald Trump? Is it a coincidence that the Russian gas company Rosneft sold a 19 percent share after former British Intelligence Officer Steele was told by Russian sources that Carter Page was offered fees on a deal of just that size? Is it a coincidence that Steele’s Russian sources also affirmed that Russia had stolen documents hurtful to Secretary Clinton that it would utilize in exchange for pro-Russian policies that would later come to pass? Is it a coincidence that Roger Stone predicted that John Podesta would be the victim of a Russian hack and have his private emails published, and did so even before Mr. Podesta himself was fully aware that his private emails would be exposed?

Is it possible that all of these events and reports are completely unrelated, and nothing more than an entirely unhappy coincidence? Yes, it is possible. But it is also possible, maybe more than possible, that they are not coincidental, not disconnected and not unrelated, and that the Russians used the same techniques to corrupt U.S. persons that they have employed in Europe and elsewhere. We simply don’t know, not yet, and we owe it to the country to find out…

At this stage, after laying out the narrative, Schiff does what a good advocate should do in anticipating or answering what the other side will say or is saying. In this case, they’ll either dispute the facts or they, more likely, will say the facts add up to nothing. A correlation isn’t a cause, after all. Schiff aims to make that reaction hard to sustain by piling up all of the events that would need to be coincidences for that explanation to hold. Still he admits, like a good opening should, that the case is not nailed down yet and deserves investigation. 

The stakes are nothing less than the future of liberal democracy. We are engaged in a new war of ideas, not communism versus capitalism, but authoritarianism versus democracy and representative government. And in this struggle, our adversary sees our political process as a legitimate field of battle. Only by understanding what the Russians did can we inoculate ourselves from the further Russian interference we know is coming. Only then can we help protect our European allies who are, as we speak, enduring similar Russian interference in their own elections.

He saves the rhetorical high point for the conclusion, invoking nothing less than “the future of liberal democracy.” Some might criticize that as hyperbole, and others are likely to see it as literally true. But it loops back to the broader principle at stake, and the central motivation in the case. 

Finally, I want to say a word about our own committee investigation. You will undoubtedly observe in the questions and comments that our members make during today’s hearing, that the members of both parties share a common concern over the Russian attack on our democracy, but bring a different perspective on the significance of certain issues, or the quantum of evidence we have seen in the earliest stages of this investigation. That is to be expected. The question most people have is whether we can really conduct this investigation in the kind of thorough and nonpartisan manner that the seriousness of the issues merit, or whether the enormous political consequences of our work will make that impossible. The truth is, I don’t know the answer. But I do know this: If this committee can do its work properly, if we can pursue the facts wherever they lead, unafraid to compel witnesses to testify, to hear what they have to say, to learn what we will and, after exhaustive work, reach a common conclusion, it would be a tremendous public service and one that is very much in the national interest. So let us try.

Schiff ends by stepping back a bit from the case he has laid out, returning to the fact that it is the beginning of an investigation, not a closing argument. “The evidence not in yet,” is a message in every opening. What also should be a component, however, is the idea of empowerment. In going into an assessment of the facts, your audience is gearing up for what might be a long journey. 

Like many around the country, I’ve been following the story pretty closely, but I have never seen the case laid out simply and methodically as it is in Representative Schiff’s introduction. Whether you agree with his inferences or not at this stage, isn’t the point. The point, to me at least, is to see it as an example of effective public advocacy. 

Of course it is not without risk. The journalist Matt Taibbi,  for example, argued earlier this month that there is still a basic lack of confirmation at the center of this story, and that if the story ends up being more smoke than fire in the end, then the credibility of the media, Democrats, and other Trump critics will certainly take a big hit. “This is a high-wire act,” he says, “and it is a very long way down.” Whether the story is still standing after the investigation, we will see. In any case, no one said a Trump administration would be boring. 

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Other Posts on Lessons of Political Speech: 

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