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Law in the days of too much media

After 37 years, Zimbabwe President Robert Mugabe was forced out of power. Mugabe, a dictator with a law degree from the University of London, had a lot more money when he quit the presidency than when he started. The intersection between corruption and political leadership in Africa and other places is not uncommon. Here in America, we’ve had a scandal or two through our 250 years, but what happens here is generally pretty tame. The relative legal peace and calm of the 16 years of George W. Bush and Barack Obama were comforting. Some of us are old enough to remember Richard Nixon and his bevy of locked-up lawyers, but it’s been a long time.

The ascendency of Donald Trump on the American political/legal scene has introduced a new player and a lot of controversy. “The Donald” is no stranger to lawsuits. Some reports claim he has been sued more than 3,500 times, and we all know he is not shy when it comes to threatening to sue people himself. The lawyer in me likes his attitude. But these days, the president is not the only headline-grabber mixing law and politics.

Lawyer/ex-FBI Director James Comey has been appearing almost every hour on a different TV show to tell his story (and incidentally to sell his book). When the President fired Comey, attorney Andrew McCabe became Acting FBI Director, but then he was fired a day before his retirement. McCabe is accused of lying to FBI agents and to then-FBI Director Comey. According to the Inspector General’s report, McCabe authorized a lawyer in his office to speak to The Wall Street Journal, but he later told those investigating the “leak” that he didn’t know who spoke to the Journal. McCabe claims that after he “realized his errors,” he cleared up the record and his misstatements were inadvertent.

Meanwhile, in the middle of the country, recently rising Republican star Eric Greitens (finally, not a lawyer) is in more trouble than McCabe. The tough-looking former Navy SEAL had established
a web address, EricGreitensforPresident.com, even before he was elected governor of Missouri. He appeared to be playing the long game, and it was even reported that Greitens was on Mike Pence’s shortlist as a replacement VP, should Pence suddenly find himself elevated to the presidency. Then a couple of months ago, the media reported that Greitens had an extramarital affair before he was elected governor. In the age of Trump (Greitens incidentally also followed Trump’s leadership when it came to not producing his tax returns) — even when Greitens admitted to an affair with his hairdresser — the revelation might not have done too much harm, but the problem wasn’t just the affair. The governor was charged with taking and transmitting a non-consensual picture of his partially clothed and tied-up stylist. (St. Louis Circuit Attorney Kim Gardner dropped this case last week but in a statement said it would be refiled. Attorneys for Greitens expressed doubt, saying prosecutors lacked evidence to pursue it.)

Under the category of “piling on,” the state’s Republican Attorney General, Josh Hawley also recommended felony charges against Greitens, accusing him of having improperly used the donor list of his veteran’s charity, The Mission Continues, to solicit contributions to his gubernatorial campaign. Greitens then took the unprecedented legal move of seeking an order from a judge to block the Attorney General’s investigation. Hawley, a former law professor, is currently seeking his party’s nomination to run against incumbent Senator Claire McCaskill, so his very public campaign against his party’s sitting governor may not be all about the law.

Back on the national front, another lawyer/prosecutor has stepped into the spotlight. Rudy Giuliani — sometimes Trump opponent, sometimes Trump friend — has joined the Trump team, and he suggested that his personal relationship with former FBI Director (and attorney) Robert Mueller may help to move the special counsel investigation along. Maybe yes, maybe no?

The overriding lesson to be garnered from these legal/political skirmishes is that they are all two-front wars. These legal matters have overriding PR and political ramifications such that winning on one battlefield doesn’t mean prevailing upon the other. Greitens assembled a large, well-known (and likely costly) legal team which is insisting on a quick trial in hopes of exonerating him. Both Republicans and Democrats in the state legislature, however, are moving towards impeachment. Whether Greitens wins his criminal cases or not, he has lost the PR battle. He’s not going to be president or vice president, and he may not be governor for much longer.

It’s uncertain how the negative press will affect McCabe, and even less certain how it will affect the president. After all, the president has a group of loyalists that seems to support him, no matter the charges. He has certainly weathered a lot of bad press, such as that surrounding the Access Hollywood tape. But recently the country was introduced to Stormy Daniel’s lawyer, Michael Avenatti. He claims to be good in court, and we may find out. One thing, however, is already clear: Avenatti is good at waging a PR battle. Many lawyers have doubts about the strength of his legal theories, but there is no doubt about the strength of his PR acumen. There are many ways to win in the larger context of a legal battle, and Avenatti’s use of the media has brought a new dimension to the front. The days of “I won’t comment on a pending case” have gone the way of Raymond Burr’s Perry Mason. By the way, we’ve also recently learned that the Department of Justice can subpoena an attorney’s files with the “visits” to Michael Cohen’s office, home and hotel room.

In law school, students are taught legal procedure and substantive matters such as constitutional, criminal, corporate or tax law. When Abraham Lincoln studied his law books by candlelight, none of them was about winning cases in the press or on Twitter. None of mine was, either. Communications technology and the cable-news explosion have brought a new media-savvy component to not only highly visible political cases, but also to public/legal matters such as zoning and property development. Boston University offers a joint degree JD/MS program through its Law School and its Department of Mass Communications, Advertising and Public Relations. In this age of communications technology and increasing media fixation on legal battles, we can expect there will be more and more courses designed to teach lawyers how to win cases — outside of the courthouse.

Levison, Mark2018 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm Lashly & Baer, P.C. Contact Under Analysis by e-mail at comments@levisongroup.com

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