A wasted opportunity

Watching the Senate confirmation hearings reminds me of a lesson I learned early in my 45 year career as a trial lawyer. In law school we were taught that one way to impeach a witness’s testimony was to confront him or her with the things they said during a deposition prior to trial. The goal of impeachment was to cast doubt on the witness’s credibility. And the more doubt you could create, the less likely it was the jury would believe what the witness said. At least that was the theory.

But it’s a trap for the unwary, and I fell into the trap a few times as a young lawyer before I learned to avoid it.

The trap is laid when studying the witness’s deposition testimony. If you find examples of things that were said that appear to be not quite consistent with the witness’s trial testimony, then ask the witness if that is what he or she said the other time. If the witness says no, then you can read the prior answer to the jury, and when it works the jury may question the witness’s veracity. Having fallen into the trap often enough, I learned that the prior inconsistent testimony must be clear, unequivocal and directly on point to be effective. Too often by ignoring this simple rule, the jury comes to believe the lawyer doesn’t know what he or she is doing and seems to be trying to pull the wool over the jury’s eyes. And when the jury concludes the lawyer is unfairly taking things out of context or outright lying, the case is doomed.

The Democrat Senators at the Cabinet nominee confirmation hearings seem to have never learned this lesson. These confirmation hearings are conducted pursuant to their duty under the Constitution to provide “advice and consent” to certain appointments. While ignoring the chance to advise the President, they appear intent on showing only that they are determined to refuse consent to any Trump nominee, no matter what.

Their questions to nominees Bobby Kennedy Jr., Kash Patel, and Tulsi Gabbert consisted mostly of repeating 5 or 6 words from something one of them said in the past and then demanding to know “yes or no” is that what they said? And when, for example, Mr. Patel who is the nominee for FBI Director asked Senator Sheldon Whitehouse if he could explain his answer, Whitehouse indignantly replied, no you can put it in writing. Which means in reality he couldn’t care less.

Somebody who was genuinely interested in learning what the nominee thought and believed would ask the nominee, why did you say that? Or, what do you think about this or that issue? Instead, these Senators have already made up their minds and have no interest in hearing what the nominee thinks about the issues of the day. They want sound bites they can use to advance an agenda while the rest of us are wondering what exactly is that agenda?

The Democrats are floundering after losing The Whitehouse and Senate and failing to regain control of the House of Representatives. No leader is evident, and they flail about like young lawyers trying the first case, intent on trying out that technique they learned in school about impeaching a witness, and in the process they have wasted everybody’s time and learned little to nothing about what the nominee thinks.