4/27/18
The famous case of Baier v Comey.
I saw Bret Baier interview Comey last night on Fox Newshour.
Comey was utterly self assured in answering a series of excellently formulated, tight, probing questions. Comey is no fool. He’s nimble and agile. And he’s slick to the point of an oiliness worthy of Clinton B. Yet Baier by and large asked him no follow up questions on specific answers by way of either testing or challenging the answers.
I’m of two minds about that. I wish he had. Some of the answers were at a minimum testable. But maybe Baier’s rationale was to ask the good, challenging questions, let Comey’s answers get out there and then let viewers decide.
Sometimes in cross examination when answers betray a contrived position, it’s not necessary to break down the contrivance. It will speak for itself and the finder of fact, judge or jury, will assess the contrivance, aided by final argument, which is when what breaks down the contrivance can be put to the fact finder.
I’m undecided whether the analogy holds here. I suppose the after-interview discussion can be seen as a version of final argument and that the audience’s then determination for itself might be seen as a version of fact finding.
But the more I think about it the more I come to think that while Baier didn’t want to get in a pissing match with Comey, didn’t even want to be seen arguing as such with him, didn’t want to get bogged down and weedy on any particular point, didn’t want to come across as impolite and *did* want to get all his questions asked in a limited amount of time, he’d have been better off with a few selected follow up questions knowing in advance what Comey’s answers on big points were going to be.
He could have asked something like, “Well, an opposing view is such and such, how do you answer it?” A light amount of that would have filled in the gap between unhelpful disputatiousness and virtually no follow up whatsoever.
One example that struck me like a slap across the face was on Comey formally using the phrase “no intent” in deciding not to recommend charging Clinton H criminally. The relevant statute’s standard is “gross negligence,” which is patently understood not to require intent. (Comey is his original exoneration of Clinton H of criminal charges used the phrase “extremely careless.”)
When asked about using “no intent” as a reason to recommend no charges given the statute’s explicit dispensation with intent, Comey reasoned that, I’m paraphrasing, “Intent is a state of mind, gross negligence is a “state of mind” and so what Clinton H did doesn’t rise to the necessary intent.”) (“It was extremely careless but not grossly negligent.”)
There’s a logical fallacy here—I think it’s the fallacy of division: by this, someone asserts that something is true of one or more of the parts from the fact that it is true of the whole. That intent and gross negligence—recklessness or conscious indifference to harmful consequences—are both states of mind doesn’t, it’s patent, equate gross negligence and intent for criminal law or for that matter for tortious purposes. In both legal realms there is a clear and well trodden to the point of it being a patent distinction between intending to do something and being heedless of consequences.
I twigged to Comey’s sleight of hand here immediately, but not everybody would on the spot, especially non lawyers. But my point is that the amount of preparation that obviously went into the excellence of Baier’s questions would have been greatly augmented by a touch more. A few well formulated, polite challenges to anticipatable answers could have with a light touch exposed Comey’s oily slickness.
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