Crisis-Management Lawyers Analyze Last Week's Antisemitism Hearings

One point they agreed on: don't be too quick to judge WilmerHale.

President Claudine Gay of Harvard, President Liz Magill of Penn, Professor Pamela Nadell of American University, and President Sally Kornbluth of MIT, testifying last week before the House (photo by Kevin Dietsch via Getty Images).

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A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

For lawyers specializing in the growing field of crisis management, last week’s House hearings about antisemitism on American university campuses were hard to watch. Three university presidents—Claudine Gay of Harvard University, Sally Kornbluth of MIT, and Liz Magill of the University of Pennsylvania—were relentlessly interrogated about their institutions’ policies regarding antisemitic speech, while their lawyers looked on helplessly.

In the days that followed, the presidents’ testimony was widely criticized. And WilmerHale, the powerhouse law firm that prepared Gay and Magill, was scrutinized for whether it adequately prepared its clients.

I spoke with two prominent lawyers who specialize in crisis management and asked: How would you have advised these university presidents? (I also reached out to WilmerHale for comment, but didn’t hear back.)

“I would have told them that, first and foremost, this is theater and not a legal proceeding,” said Joshua Galper, co-founder and partner of the strategic-communications firm Trident DMG and the law firm Galper & Goldberg. “A hearing isn’t the time to lecture Congress on the nuances of the First Amendment and campus-conduct codes. Based on their answers, they were clearly prepared for the questions, but they gave the wrong answers.”

“The most important advice I give to clients is to read the room and listen to the question,” said Reginald “Reg” Brown of Kirkland & Ellis. “In this particular instance, the question about whether calls for genocide violate university policy was easy to answer with a yes. The first-up folks needed to listen carefully to the question, and the folks further down the line needed to read the room and recognize that the earlier statements had not landed well.”

But wouldn’t it have been dishonest, maybe even lying under oath, to answer yes, if calls for genocide are in fact protected speech under university policy?

“The question was a question about principles, and it needed to be understood as such,” Brown explained. “The question really was, ‘Are calls to harm your fellow students okay in a university setting?’ And the answer is, ‘No, they’re not okay.’ Other questions might have been more complicated and needed to be taken one at a time, while listening carefully and paying attention to the dynamic in the room. But questions about calls for genocide should be answered with a yes or a no.”

“One thing you shouldn’t do is think out loud,” he added. “Comments about the importance of context and the line between speech and conduct were effectively thinking out loud, and that can be very fraught.”

Such musings about speech versus conduct were accurately described by David French of the New York Times as “lawyerly”—and not in a good way.

“The presidents should have showed greater humanity,” Galper said. “That will beat a legalistic response every time.”

One way to demonstrate humanity, according to Brown, is to try offering “value statements,” which he described as “a great way to find common ground with the questioner.” Here, for example, “a value statement might have been a statement about how abhorrent a call for genocide would be, or an affirmation of the importance of safety for students being able to learn.”

I pointed out that the presidents repeatedly tried to condemn calls for genocide. But Representative Elise Stefanik (R-N.Y.), the hearing’s most aggressive questioner, kept cutting them off, demanding yes or no answers to narrow questions about university policy.

“There are tools that people can use to be given an opportunity to speak,” Brown said. “You can say, ‘Representative, I appreciate the question, and I’d like to answer it fully.’ Or ‘Congresswoman, you raise an important topic, and I would like to give you a complete answer.’ There are ways to ask for permission to provide an answer.”

I’ve heard it said that in high-stakes situations where your client is testifying, the outcome depends one-third on the lawyer, one-third on the client, and one-third on sheer luck—so despite a lawyer’s best efforts, a hearing might go awry. What then?

“When problems arise at hearings, which is sometimes inevitable, you need to have a damage-control plan that you can implement very quickly,” Brown said. “It’s often not what happened in the hearing room but what gets reported about what happened in the hearing room that matters most. Some of the universities did this well, others perhaps not as well.”

Galper agreed on the need for speed: “An even bigger problem than the testimony was that the presidents failed to try to fix their terrible responses until days later.”

All this said, both Brown and Galper said not to judge WilmerHale too harshly.

“Don’t blame Wilmer,” Galper said. “We have no idea what advice they gave, and it wouldn’t be the first time clients gave the wrong answers under the klieg lights.”

“It’s hard to judge these matters from the outside,” Brown said. “This was an extraordinarily challenging environment and anyone can make a mistake in the moment, so while we might judge certain responses harshly, we shouldn’t underestimate how hard it is to do this.”

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