Wait are those lawyers really saying they advise their clients to give technically false answers to questions based on their interpretation of what the question was really asking?
If a university president can answer "yes" to the question of whether calls for genocide are prohibited by your code of conduct (they are pretty clearly not in and of themselves) because it's 'really' about if it's ok to call for genocide then can an accused murder answer the question of whether they were present at a certain location when they were with 'no' because it's 'really' about if they did it?
It's always the case that the person questioning you under oath has a goal of drawing inferences you don't agree with. It can't be that lets you answer the literal question asked falsely.
I spoke to another crisis-management lawyer and pressed harder on the perjury point. I think this lawyer would agree with you that the honest answer is "no," but they responded to my argument as follows: "Do you think there would be a perjury prosecution?" And then they laughed.
I think there is a realpolitik (some might say "unethical") component to testifying at these hearings (and therefore to prepping people to testify at these hearings). Josh is right that it's often theater. So if a witness thinks they're being asked questions that amount to posturing and demagoguery rather than good-faith inquiries aimed at getting to the truth, I think some witnesses might answer in a way that sounds best from a PR perspective, even if it's technically untrue (but not so egregiously untrue that they'll get prosecuted for perjury—there is an outer bound).
Is that ethical? Maybe not. But I suspect that it has happened in the past in congressional testimony (e.g., at certain confirmation hearings), and it will happen again.
Dec 15, 2023·edited Dec 15, 2023Liked by David Lat
Ok, that is a fair point that there won't be a perjury prosecution but I don't think it avoids legal risk.
Suppose the president says yes. Now what do they do when a Jewish student sues under title VI and alledges that the university discriminated against them by refusing to enforce their code of conduct (perhaps as part of a hostile environment claim)? Are they going to actually admit in court that their university president committed perjury? At that point a perjury prosecution doesn't seem quite as unlikely and either way it's a really bad fact.
Besides, it doesn't even get them out of trouble since the next question from congress will be: are you bringing disciplinary actions against students who have called for genocide. At that point the president could push back and claim that it hasn't happened but it's a dangerous move.
I'm inclined to think that WilmerHale gamed out these concerns and made a reasonable judgement call that such an answer wouldn't necessarily be great.
IMO the failure was really one of demeanor more than the answer. I think that if the presidents had seemed empathetic and focused on the experience of their Jewish students they wouldn't need to give a technically incorrect answer. But, then again, I'm not an expert on any of this so maybe the people you interviewed know something I don't.
Also, did I misunderstand and they were just saying that's how the client should answer or they were suggesting this was the advice WilmerHale should have given?
I mean advising the client that way seems very fraught because you'll either have to openly say, "you might want to perjur yourself" or suggest it's not really perjury and in the later case a client might reasonably respond to criticism by repeating the advice they recieved.
So I still feel a bit confused about what is being suggested.
Super interesting comment about how Rep. Stefanik’s question really was, is it okay to threaten harm to your fellow students, and that’s an easy no. That really sums it up. The hearing was not a deposition, nor was it an oral argument on the finer points of the First Amendment. In this regard, a legal scholar like Magill was probably more hindered than helped by her background and expertise.
In what sense was it really about whether it was ok to threaten harm to your fellow students? She could have asked that but clearly choose to ask about genocide and the code of conduct. If anything context suggested the question was really whether protests calling for the globalization of the intafada violated the code of conduct.
If this was the rule anyone could just answer congressional questions in whatever way sounded good because the questioner is really asking them if they/their institution behaved badly.
With respect, I disagree. The audience was the American people, the vast majority of whom are not litigators. Based on the general consensus, most people heard more emotional nuance in her question, and expected a frankly more human and less legalistic response. That’s my view and what I think these crisis management lawyers were getting at.
Dec 14, 2023·edited Dec 14, 2023Liked by David Lat
I certainly agree that's why the trick worked. She answered one question but because of clever editing (no prior context about intafada = genocide) and how the American people are likely to understand it people heard a different one.
But by your logic a jury isn't legally sophisticated either so a witness can answer a question with a literal falsehood if they fear the jury will draw the wrong inferences. "Haven't you been convicted of lying to the FBI in the past" could be answered "no" even if you have because they are really asking if you're a dishonest person and you think that conviction was unfair/misleading.
I don't disagree they should have said, "calls for genocide are absolutely abhorrent" and done the condemnation first but I just don't see how that lets you give an incorrect answer to the literal question asked.
This was a very interesting post. It reminded me of what my lawyers advised me when I was sued in my role a CEO for wrongfully discharging an employee. They explained how responding to questioning during a deposition differed from responding to questions in front of a jury. I was told that during a deposition take a couple of breaths to fully understand the question and to only answer the direct question and don’t go off on a tangent. Also pretend that your response will be read back to you in front of a jury so no attempts at humor. The jury may not find you funny. Take a page from Bill Clinton, be truthful not helpful. In front of the jury be sincere and relatable.
It was great advice. In a plaintiff friendly jurisdiction I got a defendant friendly verdict after a 10 day jury trial in three hours and the jury had a leisurely lunch.
Wait are those lawyers really saying they advise their clients to give technically false answers to questions based on their interpretation of what the question was really asking?
If a university president can answer "yes" to the question of whether calls for genocide are prohibited by your code of conduct (they are pretty clearly not in and of themselves) because it's 'really' about if it's ok to call for genocide then can an accused murder answer the question of whether they were present at a certain location when they were with 'no' because it's 'really' about if they did it?
It's always the case that the person questioning you under oath has a goal of drawing inferences you don't agree with. It can't be that lets you answer the literal question asked falsely.
I spoke to another crisis-management lawyer and pressed harder on the perjury point. I think this lawyer would agree with you that the honest answer is "no," but they responded to my argument as follows: "Do you think there would be a perjury prosecution?" And then they laughed.
I think there is a realpolitik (some might say "unethical") component to testifying at these hearings (and therefore to prepping people to testify at these hearings). Josh is right that it's often theater. So if a witness thinks they're being asked questions that amount to posturing and demagoguery rather than good-faith inquiries aimed at getting to the truth, I think some witnesses might answer in a way that sounds best from a PR perspective, even if it's technically untrue (but not so egregiously untrue that they'll get prosecuted for perjury—there is an outer bound).
Is that ethical? Maybe not. But I suspect that it has happened in the past in congressional testimony (e.g., at certain confirmation hearings), and it will happen again.
Ok, that is a fair point that there won't be a perjury prosecution but I don't think it avoids legal risk.
Suppose the president says yes. Now what do they do when a Jewish student sues under title VI and alledges that the university discriminated against them by refusing to enforce their code of conduct (perhaps as part of a hostile environment claim)? Are they going to actually admit in court that their university president committed perjury? At that point a perjury prosecution doesn't seem quite as unlikely and either way it's a really bad fact.
Besides, it doesn't even get them out of trouble since the next question from congress will be: are you bringing disciplinary actions against students who have called for genocide. At that point the president could push back and claim that it hasn't happened but it's a dangerous move.
I'm inclined to think that WilmerHale gamed out these concerns and made a reasonable judgement call that such an answer wouldn't necessarily be great.
IMO the failure was really one of demeanor more than the answer. I think that if the presidents had seemed empathetic and focused on the experience of their Jewish students they wouldn't need to give a technically incorrect answer. But, then again, I'm not an expert on any of this so maybe the people you interviewed know something I don't.
Also, did I misunderstand and they were just saying that's how the client should answer or they were suggesting this was the advice WilmerHale should have given?
I mean advising the client that way seems very fraught because you'll either have to openly say, "you might want to perjur yourself" or suggest it's not really perjury and in the later case a client might reasonably respond to criticism by repeating the advice they recieved.
So I still feel a bit confused about what is being suggested.
Great article. I fully agree that it was theater and not a legal proceeding.
Super interesting comment about how Rep. Stefanik’s question really was, is it okay to threaten harm to your fellow students, and that’s an easy no. That really sums it up. The hearing was not a deposition, nor was it an oral argument on the finer points of the First Amendment. In this regard, a legal scholar like Magill was probably more hindered than helped by her background and expertise.
In what sense was it really about whether it was ok to threaten harm to your fellow students? She could have asked that but clearly choose to ask about genocide and the code of conduct. If anything context suggested the question was really whether protests calling for the globalization of the intafada violated the code of conduct.
If this was the rule anyone could just answer congressional questions in whatever way sounded good because the questioner is really asking them if they/their institution behaved badly.
With respect, I disagree. The audience was the American people, the vast majority of whom are not litigators. Based on the general consensus, most people heard more emotional nuance in her question, and expected a frankly more human and less legalistic response. That’s my view and what I think these crisis management lawyers were getting at.
I certainly agree that's why the trick worked. She answered one question but because of clever editing (no prior context about intafada = genocide) and how the American people are likely to understand it people heard a different one.
But by your logic a jury isn't legally sophisticated either so a witness can answer a question with a literal falsehood if they fear the jury will draw the wrong inferences. "Haven't you been convicted of lying to the FBI in the past" could be answered "no" even if you have because they are really asking if you're a dishonest person and you think that conviction was unfair/misleading.
I don't disagree they should have said, "calls for genocide are absolutely abhorrent" and done the condemnation first but I just don't see how that lets you give an incorrect answer to the literal question asked.
This was a very interesting post. It reminded me of what my lawyers advised me when I was sued in my role a CEO for wrongfully discharging an employee. They explained how responding to questioning during a deposition differed from responding to questions in front of a jury. I was told that during a deposition take a couple of breaths to fully understand the question and to only answer the direct question and don’t go off on a tangent. Also pretend that your response will be read back to you in front of a jury so no attempts at humor. The jury may not find you funny. Take a page from Bill Clinton, be truthful not helpful. In front of the jury be sincere and relatable.
It was great advice. In a plaintiff friendly jurisdiction I got a defendant friendly verdict after a 10 day jury trial in three hours and the jury had a leisurely lunch.