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Listening to the Lawyers: Evaluating Legal Opinions and Distinguishing Legal Opinions from Legal Facts

Teri Kanefield discusses the process of evaluating legal opinions, distinguishing them from legal facts and provides insights on the perjury accusations against Mark Meadows in a recent court case
Published:September 6, 2023

*Published with the generous permission of Teri Kanefield. Read all of her writing here.

By Teri Kanefield

Teri, what do you think of Mark Meadow’s potential perjury exposure after being caught lying in cross-examination?

After a number of people asked me this, I started poking around to see where the question was coming from. I learned that a former prosecutor who often appears on TV posted this:

“Meadows’ perjury in the removal hearing can be both separately prosecuted and be additional proof against him in the 1/6 case. Note: it can be used for both ends by Jack Smith.”

I also discovered that the declaration that Meadows committed perjury was being picked up by MSNBC and other outlets. I looked at the readers’ and viewers’ comments. No surprise, people were outraged and indignant, demanding that Meadows be held accountable for committing perjury.

To do my own analysis, I started with this report by Anna Bower, which I supplemented with snippets of the actual transcript offered by MSNBC (I did not purchase the entire transcript from Pacer):

Prosecutor: “Did you have any role, Mr. Meadows, in coordinating the various electors in the contested states for the Trump campaign?”

Meadows: “No, I did not.”

Prosecutor: “No role at all?”

Meadows: “The only time that I know of from the elector’s point was when somebody raised the issue with me and I referred it on to the campaign.”

Prosecutor: “So you had no role for the campaign or as Chief of Staff in coordinating those efforts across contested states?”

Meadows, “As Chief of Staff, no I did not coordinate those efforts.”

[Notice that Meadows changed the framing from “any role” to “I did not coordinate those efforts.” Notice also that he said his level of involvement was to pass along issues about the electors to the campaign.)

Prosecutor: “Okay. Got that?”

A few minutes later, the prosecution submitted its first exhibit. It’s an email exchange between Meadows and a Trump campaign adviser, Jason Miller. In the email, Meadows appears to attach a copy of the “Chesebro memo” that set out a strategy for coordinating “alternate” electors across several contested states. In the email, Meadows writes: “Let’s discuss.” In a later email, Meadows writes, “If you are on it then never mind the meeting. We just need to have someone coordinating the electors for States.”

Prosecutor: “Who is we?”

Meadows: “The campaign.”

(Earlier Meadows testified that he overuses the pronoun “we.”)

On redirect (this is when Meadows’ lawyer gets to follow up with questions), the defense lawyer asks for clarification about what Meadows meant by ‘we’ in the email he sent to Jason Miller.

Meadows reiterated what he had said earlier: he has a habit of overusing the pronoun “we.” It’s a “leftover from my congressional days,” Meadows says. “Here, I meant ‘the campaign’, not ‘me with the campaign together.’”

Okay, now for the legal analysis. Here are the elements of perjury:

  1. The declarant took an oath to testify truthfully,
  2. He willfully made a false statement 
  3. The declarant believed the statement to be untrue, and
  4. The statement related to a material fact.

To sustain a conviction for perjury, each of those elements must be proven beyond a reasonable doubt. #1 and #4 are easy. #2 and #3 are trickier. First, “to prove that the witness gave a willfully false statement, the question asked must have been unambiguous.” So a jury will have to decide whether the prosecutor’s question, “Did you have any role?” was unambiguous.

It seems to me that “any role” is ambiguous. What, exactly, is a “role”? This is complicated by the fact that Meadows reframed the question as “I did not coordinate those efforts” and later he told someone “We just need someone to coordinate the efforts.”

The statement “We just need to have someone coordinating the electors for States,” sounds to me like he was specifically saying someone else needs to coordinate the electors for the states, which would mean that the person ultimately wasn’t him.

Given that this was how Meadows reframed the question and that he testified that his role was to forward stuff to the campaign, I’m not 100% persuaded that he was impeached by the fact that he forwarded a memo to the campaign about the electors and said, “We just need someone coordinating the electors for states.”

Moreover, consider that the email was from 32 months ago so it would make sense that he didn’t recall precisely what he had written. The prosecutor, on the other hand, had the email in front of her and tried to get him to say he had played “no role” (although he qualified that in his answers.)

Also, for a charge of perjury to stick, the prosecution must prove beyond a reasonable doubt that Meadows willfully lied. The Supreme Court has said that a perjury conviction cannot be based on “merely unresponsive or evasive testimony calculated to mislead but containing the literal truth.” In other words, courts have made it hard to get a conviction for perjury because sometimes people really can’t remember. Sometimes people get confused.

Mark Meadows was on the stand for 4 hours. People can become fatigued. The standard, that he willfully lied, is intentionally difficult.

It seemed like the prosecutor was playing a game of “gotcha”: Get him to say that he played no role, and then show him an email in which he was forwarding information to the campaign and talking about coordinating electors. 

My conclusion: Maybe he deliberately lied and committed perjury, but on the evidence here, I think it would be difficult to get a conviction for perjury.

What the heck, Teri! Are you defending Mark Meadows?

I’m showing you how this works. First one side makes an argument, and then the other side makes a counter argument. At this stage, all we can do is assess the strength of each argument.

Also, I’m showing you that defense lawyers are no fun. They are there to ruin the party. Most of the time they fail. Sometimes they succeed. Whether they succeed or not, you’ve got to admit they are party spoilers.

  • Prosecutor: He lied and committed perjury!
  • Audience: “Lock him up!”
  • Defense lawyer:

Here is how Fani Willis, the prosecutor who has indicted Meadows, characterized what happened in court:

And after insisting that he did not play “any role” in the coordination of slates of “fake electors” throughout several states, the defendant was forced to acknowledge under cross-examination that he had in fact given direction to a campaign official in this regard. Specifically, the defendant wrote an email, State’s Exhibit 1, in which he said, “We just need to have someone coordinating the electors for the states” and attached a memorandum written by co-defendant Kenneth Chesebro recommending the organization of slates of presidential electors to meet and cast votes for Mr. Trump in states Mr. Trump had lost.

See how that paragraph offers a particular slant with words and phrases like “insisting” and “forced to acknowledge.” It also omits the fact that before being shown the email, Meadows testified that the only role he played was forwarding information to the campaign. In other words, that paragraph presents an argument. Willis is characterizing the exchange in a particular way. The defense would characterize the exchange differently.

Litigation (including criminal litigation) is essentially competing versions of the same story. Choosing which version to believe is up to the judge or jury.

Here is how the whole “Meadows committed perjury” seemed to have gotten started. First, a well-known legal commentator read Fani Willis’s brief and concluded from her brief (not the transcripts) that “Meadows has a potential perjury problem.” (I am not linking to the posts because I decided not to name names.)

Then, the former prosecutor who often appears on TV saw the “potential perjury problem” post and, in his response, changed “potential perjury problem” to an assertion that Meadows did, in fact, commit perjury:

“Meadows’ perjury in the removal hearing can be both separately prosecuted and be additional proof against him in the 1/6 case. Note: it can be used for both ends by Jack Smith.”

I strongly doubt that the DOJ or Fani Willis will indict Meadows for perjury. We could bookmark this and come back in a year to see if Meadows is ever indicted for perjury. It seems to me that it won’t matter. The issue made for some good television.

I am not persuaded that this method of news reporting is helpful.

Predicting what a court will do

Good lawyers are better able to predict what a court will do than bad lawyers. A lawyer able to predict what a court will do is better able to advise a client about how to proceed.

But nobody can be 100% sure. Sometimes even good judges get things wrong. Juries can surprise us. Sometimes you think you have made a brilliant argument or offered a brilliant observation, and the court just doesn’t buy it.

Also, it can be hard to separate predictions from wish casting. Similarly, it can be hard to disentangle our subjective feelings about an issue from the facts. There is a thing called confirmation bias (a tendency to interpret events in a way that confirms our prior beliefs.)

With some issues, it’s easier to predict what a court will do than others. For example, I was 100% sure that Judge Chutkan would deny Trump’s request to schedule the trial for April 2026 because the request was unreasonable and because there were disingenuous arguments in the defense brief. The Meadows removal issue seems to me less clear.

This, by the way, is the cycle I went through as a criminal defense appellate lawyer representing people who had lost at their trial or hearing and had a right to appeal but couldn’t afford a lawyer:

  1. Read the record (transcripts, documents filed) and think, “OMG my client did what? What on earth can I do with this case? This appeal is a loser!”
  2. Spend more time. Read closely. Look for things I missed.
  3. Get an idea 💡
  4. Research and write my idea. Refine my arguments.
  5. Final stage: “OMG I should win this!”

Stage #1 and Stage #5 are both legal opinions.

It’s often hard for non-lawyers to distinguish a legal opinion from a legal fact and this creates a lot of confusion. (What makes this particularly hard is that some lawyers confuse their own legal opinions with legal facts.😂)

“Mark Meadows committed perjury,” is an opinion unless it comes from a judge issuing a ruling or a jury.

Once upon a time, it would have never occurred to me that people would say, “A lawyer said it, so it must be true.” I mean, what about all those lawyer jokes?

An opinion confidently stated is still an opinion, even if the lawyer says it on TV.

We will be seeing lots of these kinds of pronouncements now that we are in the stage of pre-trial motions. Beware of them. Weigh them. Remember that it’s easier to “win” on TV than in a courtroom. It’s easy to say “This person committed a crime!” when the person making the declaration will never have to face a jury on the issue.

Speaking of pre-trial motions. . .

The DOJ election interference case v. the Georgia RICO election interference case

The DOJ case is streamlined. The DOJ indicted Trump for conspiracy charges without indicting any of his co-conspirators, which means they believe they have evidence beyond a reasonable doubt without charging the others beside him. This means that the pretrial motions (due in October) will come from only one defendant, Trump.

The GA RICO case is, in contrast, complex with 19 defendants outlining a wide-ranging broad conspiracy. Fani Willis wants to try all of the defendants together. Her statement of facts weaves all of their stories together, and as she indicated in the recent Meadows hearing, proving that Meadows is guilty under the Georgia RICO act depends on the actions taken by his co-conspirators. This could make it difficult for her to try them individually.

In the flurry of pre-trial motions to date, defendants are trying to split themselves up into smaller groups or be tried individually. Two defendants filed motions demanding a speedy trial, which is their right under Georgia and federal law. The court set a trial date for one for October 23. The other wants to sever and be tried separately. Other defendants are filing motions saying they will not be ready then. Meadows and other defendants are filing motions to have their cases tried in federal court (Meadows, it seems to me, has the strongest argument of the bunch.)

It’s possible, depending on how this shakes out, that Willis could be trying this case in different courts at different times, which may make it harder for her to put the full story in front of a jury.

How will this all shake out? We will find out over the next few months, but I will end with something I quoted a few weeks ago from Scott R. AndersonSaraphin DhananiYang Liu, and numerous others who wrote this for Lawfare:

We won’t know until District Attorney Fani Willis tries to take her case to trial whether it is a document touched by prosecutorial genius or a massive overreach. What we can say is that the indictment is unlike anything else pending against Trump in the scope of its allegations of criminality.