A Legal Writer’s Response to the Washington Post on Trump

This article in the Washington Post asks: How should the media respond when Donald Trump says something without any basis in fact, like his recent “millions of people who voted illegally” tweet? Here’s how the author describes the problem:

At first, a disturbing amount of that coverage just passes along what Trump is saying, particularly in headlines and brief mentions on television, which often take the form of “Trump says world is flat.” Then the news media find their footing a bit and begin explicitly calling him out for the falsehood. But the more it ends up looking like an argument between Trump and the media, the more that even Republicans who are skeptical of Trump will get pulled to his side, because they’ve long been invested in the idea that the media are hopelessly infected with liberal bias.

I’m not a reporter. I have no experience writing for a newspaper. But this problem immediately brought to mind a similar problem I dealt with as a lawyer: What to do when opposing counsel says something irrelevant, wrong, objectionable, or otherwise problematic in a brief? I think the tactics I used (and other lawyers use!) in that situation might be a helpful framework for thinking about media responses to baseless claims from politicians.

As a lawyer, when opposing counsel asserts something outrageous, there’s certainly a temptation to lead with it and attack it in response. But that’s generally not a good idea. As Bryan Garner points out in the now-out-of-date second edition of The Winning Brief, you don’t want to give primacy of place to your opponent’s arguments. Instead, start with your argument; then explain why the other side is wrong; then reassert your original point. See Tip 88 on pages 409-13.

This tactic is somewhat easier when your opponent advances an argument that fits within the general framework of the law that you also want to adopt. For example, if opposing counsel misstates the holding of an applicable case, you can easily enough start by setting out the proper holding of the case before explaining why opposing counsel got it wrong. But things get trickier when opposing counsel pulls some doctrine out of left field. How to weave that into the framework of your argument when all it does is misstate the issue and clutter up the landscape?

Here’s how I addressed that problem using a two-step process: First, I tried to think of some broader point I wanted to make that could possibly relate to opposing counsel’s statement. Perhaps I’d need to make an argument about the proper doctrine to apply in this case. Or perhaps there was an argument that related in some way to the irrelevant point opposing counsel was advancing. Generally, I’d just try to put myself in the mind of the judge or even opposing counsel and think about how that irrelevant/wrong point could possibly relate to what, in my mind, the case was really about. I tried to find a link between the outrageous claim and my positive vision.

If I was able to do that, then the Garner method worked well! I’d make my positive point, refute the other point, and close on my point again. If I was not able to relate opposing counsel’s argument to something relevant to the case, then I’d move on to the second step: Figure out some way to clearly but casually dismiss the statement. I didn’t want to leave the statement unaddressed, but if it wasn’t substantively important, I didn’t want to waste my ink responding to it. That only made the statement seem more important; it would drag the judge into an irrelevant back and forth. Confusing. Not ideal.

Which brings us back to politicians who make baseless claims. When a politician makes a baseless claim, that claim can go into one of two buckets: important or not important. A claim about voter fraud or election integrity is important. A claim about pumpkin pie (for example) is not important. An unimportant claim can be ignored by the media, or perhaps casually dismissed. Put it in the entertainment section! Make a gif!

But an important claim shouldn’t be ignored or dismissed. The focus of the coverage, however, need not be on the claim itself; rather, it can focus on the substantive issue that makes the claim important. In other words, make the story about whatever substantive aspect of the claim separates it from a claim about pumpkin pie. Think about the reader. Why does the reader care what the politician says about this topic? What makes the topic itself timely, relevant, and reporting-worthy? Why is it not a statement about pumpkin pie? That should be the focus.

To use the Trump example: He made a claim about millions of illegal votes. Instead of writing a story about Trump’s claim, why not write a story about… election integrity? Actual voting? Evidence of voter fraud in the election more generally? Or just pick whatever it is that makes the claim wrong and important. That’s the headline. Trump’s statement can then go as the sub-head, discussed after a few paragraphs setting out the actual important information that makes the story worth reporting in the first place.

I understand, of course, that in some sense the story is that Trump would say such a thing. But at some point, that needs to stop being the story. I remember first receiving a brief from opposing counsel and thinking “This is ridiculous! How could they say this! That’s totally preposterous!” At first, the claim itself is the story. But when I went to write the response, I needed to bury that part of the response in the middle of the brief, which allowed me to focus on what was actually important about the case—why it was important that the court get it right. I wonder if the media might be able to do the same.

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