Misinformation Outrage Part 3: The Perils Of Legal Punditry
Teri Kanefield delves into the challenges of legal punditry and the negative effects of partisan pundits and conspiracy theories on American democracy, with a focus on maintaining truth and integrity.
Published:November 9, 2023
*Published with the generous permission of Teri Kanefield. Read all of her writing here.
By Teri Kanefield
Part 3: The Perils of Legal Punditry
Before I explore some of the conspiracy theories that sprung up around Merrick Garland in 2021 and 2022, we need some basic facts about investigations. Yes, it’s complicated, which is why so many conspiracy theories sprang up.
(1) Evidence that is admissible in court takes time to assemble. This is because:
Law enforcement can no longer beat confessions out of people. Witnesses can take the Fifth. Compelling testimony requires procedures.
It is particularly difficult to get to the notes and phones of lawyers because special privileges apply. Many of those in Trump’s inner circle who assisted him were lawyers.
It is also difficult to get to the notes and phones of members of Congress because special privileges apply.
The Federal Rules of Evidence are complicated. If you don’t believe me, click here. There are no “I saw it on the Internet” or “We all know he is guilty” exceptions to the Federal Rules of Evidence.
With complex cases involving lawbreaking that happened behind closed doors or (with only a few witnesses who don’t want to talk) assembling the necessary evidence often takes years.
(2) Investigations are bungled when investigators jump to conclusions about the evidence or fail to obtain all the evidence.
If you want to know why assembling the evidence against Trump in the January 6 case takes time, see this post. (If you have never read my story about drugs in the back of the truck please read it .)
(3) Prosecutors who lack intellectual humility are more likely to rush to trial, bungle the case, and end up with an acquittal or dismissal. (These same prosecutors, however, can often thrive as partisan pundits, where lack of intellectual humility is a virtue.)
(4) DOJ investigators conduct their investigations out of the public eye.
(In other words, a grand jury is not the starting point. It happens after the prosecutors gather as much evidence as they can.)
The DOJ is forbidden by law to talk about grand jury proceedings. Witnesses are asked not to talk, but they can. The witnesses who are cooperating and/or have no criminal liability generally do what the prosecutors ask them to do. Prosecutors will always begin with the witnesses who are willing to talk. It is, therefore, only when hostile and unwilling witnesses are called to the grand jury that leaks will happen, and this happens much later in the process.
(7) One of the bedrocks of democracy is prosecutorial independence.
In autocracies, the head of state decides who to prosecute. One of the most chilling moments for me during the Trump administration was when Trump tried to weaponize the DOJ and use it to go after his political enemies. As our rule of law system is designed, the president appoints an AG and lets the AG do his job independently.
Here is the problem: If an investigation is leakproof, and if it takes at least a year to reach the stage where prosecutors are interviewing people who are hostile and likely to leak, what will the producers of cable news shows do during all that time? How will they hold their audience? How will they provide entertainment?
Given the pattern Prof. Young described in her book, we can expect them to embrace a “conflict frame.” (p. 144) They will offer “emotionally evocative performances of partisan identity.” They will tie the topic to “broad themes in the culture war, and typically do so with an ‘in your face’ interpersonal conflict style that increases viewer engagement while increasing viewer’s hostility to the other side.” In doing so, they will “reinforce viewer’s partisan identities.” All of this provides “partisan operatives the opportunity to directly misinform audiences.” (pp. 144-145.)
Recall also that partisan pundits reflect back the fears and views of their viewers.
How I will proceed
I will intersperse what we knew was happening with what partisan pundits and influencers were saying. The juxtaposition will probably speak for itself, but I will break the timeline into approximately five-month increments and offer analysis.
I do not watch cable news. Assembling evidence to support my hypothesis by watching videos would have taken months. Many of these pundits are on social media with large followings. I grabbed examples from videos and posts from social media. Obviously, this is only a sampling.
Merrick Garland was sworn into office on March 11. Another six months would pass before a US Attorney in D.C. would be appointed.
On February 22, 2021, at Garland’s confirmation hearing, Sen. Sheldon Whitehouse, a Rhode Island Democrat, encouraged Garland to look “upstream” and “not rule out an investigation of funders, organizers, ringleaders, or aiders and abettors, who were not present in the Capitol on January 6.”
On June 5, former prosecutor Richard Signorelli assured his Twitter audience of more than 100,000 followers that Matt Gaetz (a member of Congress), Giuliani (Trump’s personal lawyer), Trump, and others would be indicted and arrested within 3 months:
Also on June 5, Pam Keith, a lawyer and former candidate for Democratic office (who then had a blue check) told her 100,000+ followers that the “Biden team” is woefully bad at protecting and enforcing rule of law, and that Biden needed to have a “tete-a-tete” with Garland.
On June 7, 2021, Sarah Kendzior, who often appears on TV and hosts a popular podcast and has almost 600,000 followers on Twitter told her audience this:
On June 9, Kendzior called Garland a “mafia state enabler” and accused him of keeping his eyes closed:
On July 11, in this video, MSNBC legal analyst Glenn Kirschner (who also has a popular YouTube channel and a large social media following) implored Merrick Garland to protect our families from Trump, who keeps “peddling the Big Lie.”
In the video, Kirschner says (as if speaking directly to Merrick Garland), “As of yet, you have given us zero assurances that you are going after the one who gave the order . . instead, with each successive hate rally, you are letting Trump assemble a second batch or insurrectionists.”
Also in the video, Kirschner read from a Washington Post piece that described Merrick Garland as a weak man: “Mr. Garland, slight, owlish, soft-spoken, and deliberative, has had to quickly learn that the scholarly approach that served him as a judge cannot on its own restore independence and credibility to an agency battered by Mr. Trump’s attempts to improperly wield its power. He has struggled to convey his message. . . “
Here is a sampling of how Kirchner’s viewers responded (highlighted for emphasis):
On July 19, 2021 TV Pundit and Legal Expert Elie Mystal similarly said:
On July 27, the idea was picked up by Cheri Jacobus, who describes herself as a “political analyst”
(Lying, by itself, is not a crime. Because of the First Amendment, the government cannot stop a person from telling lies.)Also on July 27, Don Winslow told his 900,000+ followers that Garland would never “go after Trump.” (Prosecutors don’t actually “go after” people. They follow the evidence of crimes.) Analysis of April 2021 – July 2021
The developing conspiracy theory at this point is this: Nothing dramatic has happened in the investigation because Merrick Garland is either corrupt or weak and because Biden is refusing to do anything about the situation. As a result of Garland’s inaction, Trump keeps telling dangerous lies.
Remember that a conspiracy theory does not have to be unhinged or crazy. It needs to meet this definition (From Part II):
Conspiracy theories attempt to explain the ultimate causes of significant social and political events and circumstances with claims of secret plots by two or more powerful actors. They also assume that powerful people operating in the shadows are bad actors deliberately keeping the public in the dark.
(Yes, I know. the conspiracy theories prevalent on Fox and in right-wing media are more dangerous. Yes, the tendency to believe things that are not true is more prevalent among Fox viewers than MSNBC and CNN viewers. But believing things that are not true about important government processes is problematic wherever it happens.)
At this point, given that the investigation began four months earlier, the correct response of legal experts as of July, 2021: “We don’t know where this investigation will lead. We don’t know what evidence the prosecution will find. We don’t know what defenses people will put forward. We don’t know who we will be charged. All we can do is wait because the way our system works is that independent prosecutors make these decisions. Eventually, we will be able to evaluate whether Garland is doing what he said he would do and whether his methods were effective.”
The correct response would not be, “Don’t worry! Trust the DOJ! Garland will indict Trump and all of his pals!”
Let’s put what is happening so far on the process Prof. Young offered in her book Wrong: How Media, Politics, and Identity Drive Our Appetite for Misinformation:
People face a situation that is confusing or seems incomprehensible. “It has been 4 months since Merrick Garland was appointed and nothing dramatic has happened. Trump is still a free man telling lies.”
They look for a way to assign blame.
They grasp onto an easy-to-understand theory that assigns blame. “It is the fault of Merrick Garland and the Democrats who are destroying rule of law.”
The theory is being reinforced because people in their community who they identify with also hold the theory.
Holding a conspiracy theory gives people a renewed sense of energy. Instead of feeling out of control, they have an explanation.
Fueled by anger, they become defiant—but they have a direction. They feel they have agency. They can get behind a banner. They feel back in control
The examples I listed include “emotionally evocative performances of partisan identity,” and themes that tie the issue to larger questions of a cultural war. These examples also exhibit ‘in your face’ interpersonal conflict style that increases viewer engagement while increasing viewer’s hostility to the other side.” (In this case, the “other side” are Republicans, who, because of Garland’s inactivity, are growing more dangerous, and Garland himself, who is cast as an enemy of rule of law.) According to Young, these are characteristics of today’s partisan pundits.
In doing so, they will “reinforce viewer’s partisan identities.” All of this provides “partisan operatives the opportunity to directly misinform audiences.” (pp. 144-145.)
Notice also that 4 authoritarian tendencies have been activated:
Glorifying strongmen and despising someone who appears weak and “owlish”
Supporting authoritarian aggression “something must be done by any means necessary“
Projectivity: We are at a “tipping point.” If someone doesn’t act quickly, all will be lost.
All of this increases cynicism, which is another trait of authoritarianism.
Prof. Young tells us that “fear, threat, and uncertainty are associated with a higher likelihood of conspiratorial thinking.” (p. 48.) This the more frightened people became. the more likely they are to believe that nefarious forces are at work.
The real explanation, of course, is that we don’t know anything because we’re not supposed to know anything.
As you read the next section, notice how many legal pundits simply repeat what journalists not trained in the law said and recall this moment from Peter Arenella’s awakening that I wrote about in Part II:
On August 9, 2021, CNN Legal Analyst Elie Honig said that there is “no sign” that Garland was conducting a meaningful investigation of the coup
One of Honig’s readers asked this:
Notice how the person takes the implication from Honig’s statement that “Garland is dragging his feet” (a statement not supported by any facts) and then understands that if Garland is refusing to act, there must be a reason–so he searches for a reason. Because we are in the realm of speculation seeking to assign blame for a bewildering occurrence, these are all conspiracy theories.
On November 23, Someone on MSNBC’s Nicole Wallace said “January 6th is almost a year ago . . . and not one person in power has been held accountable. . . “
In fact, it was 8 months since Merrick Garland was appointed. I won’t take apart the other absurdities. People who watch Deadline White House tell me that Nicole Wallace pursued an aggressive “why isn’t Garland doing anything” line of questioning through this entire era. Here is Tribe boosting the Nicole Wallace guest complaining that “nobody” had yet been held accountable and telling his readers to “Think about that.”
On December 6, 2021, Tribe, who is clearly becoming angry, said this:
Important note: Within a few months, Laurence Tribe acknowledged he was wrong about Merrick Garland and apologized.
I thought Garland offered a clear explanation of what he was doing. I understood it was important for the DOJ to follow the usual procedures so that any indictments would have credibility with the public.
“Round up the usual suspects” and then look for the evidence is not the correct way to go about investigations. In fact, this is the very definition of political persecution.
Moreover, Garland was assuring the public that he intended to hold “all those criminally responsible accountable.”
Another thing to notice: There is silence from inside the DOJ. If Merrick Garland was not telling the truth, was deliberately “slow walking” the case, or had decided in advance not to prosecute Trump, someone inside the DOJ would know that. Therefore, we have two options:
The upper echelons of the DOJ are complicit in Garland’s decision not to investigate Trump
Garland was deliberately deceiving everyone: While they were all busy making hundreds of arrests and pursing leads, they believed the plan was to bring all people with criminal liability to justice, but at some point they’d be stunned to learn that Garland had a secret plan not to prosecute Trump.
We did learn later that people inside the DOJ disagreed with the method adopted by Garland. Instead, they wanted to start with the fake electors’ scheme. Here is what we learned later from the DOJ insiders who disagreed with Garland’s approach:
Before Garland was sworn in, Cooney put forward a plan: Go straight for the top with the fake elector scheme. But others didn’t like it. “All who assembled for the meeting were in agreement, with Axelrod making the final call: Cooney’s plan would not go forward.”
Garland and Monaco, after they were sworn in, agreed not to start with the fake elector scheme.
But we do find out that “some in the group” felt that “Seeking the communications of a high-profile Trump ally such as Stone could trigger a social media post from Trump decrying yet another FBI investigation as a witch hunt. And what if the probe turned up nothing?” (emphasis added)
(A public probe that turns out nothing causes the DOJ to lose credibility and casts doubts on any future indictment. Public confidence is paramount.)
I honestly (and naively) thought that Garland’s statement would tamp down at least some of the panic. I was wrong.
Also, because of the fractured media environment, people who believed that Garland was either incompetent or lying and, through deliberate action, was doing great damage to the country was a fraction of the population. People who didn’t hold this theory include:
The insurrectionists being prosecuted
Viewers of right wing media, including Trump and his inner circle: Their theory was that Garland was engaging in a politically motivated investigation
People who spend, say, a half hour a day reading a newspaper or scrolling through Apple News and don’t think about politics the rest of the time and don’t follow the play-by-play
People who tune out between national elections because the anger and rage gets exhausting
People who are entirely disengaged
Personal story: A few weeks ago I was talking to a 27-year-old. She is a dedicated Democrat, a reliable voter, and is passionate about environmental issues. I asked her if she was following any of the drama about the Trump criminal matters. She said, “Wasn’t he charged with something?” She had no idea all of these theories were brewing.
January 2022 – June 2022
On January 5, 2022, Sarah Kendzior responded to Garland’s speech by calling it a “word salad” and an “empty PR gesture” made while “time was running out.”
On January 8,2022, TV Pundit and legal expert Daniel Goldman speculated that if Garland actually was investigating Trump and his associates, we would know because there would be leaks from Trump world:
One week after Goldman made this pronouncement, there was a leak from Trump World that the DOJ was investigating Trump’s close associates:
This was actually the first leak. No surprise, it came from one of the defense lawyers. This leak, however, had no effect on the narrative that nothing was happening.
On January 19, 2022, Sarah Kendzior told her audience that Trump could be “put away” based on the Muller Report, and that Garland was “running out the clock” in a “dangerous dereliction of duty”:
(In fact, the evidence in the Mueller Report was likely not enough evidence to secure a conviction for obstruction (see this explanation, #6 ) and even if there was enough evidence for a conviction for obstruction, the crime would most likely be a misdemeanor. The first offense of a misdemeanor will not “put someone away.”
March 3: the fury and rage on Twitter in what might be called the MSNBC / CNN information community over the “fact” that Merrick Garland was “refusing” to investigate Trump had reached such a pitch that I wrote an FAQ page addressing the enraged questions I was getting. You can see the March 3 version of my FAQ page here.
March 10, 2022, CNN legal expert Elie Honig explained why (in his opinion) Garland was doing it wrong (even though he had no actual information beyond Garland’s statement):
On July 11, 2022, former prosecutor Andrew Weissman (who now makes frequent appearances on Cable News) made a splash with a NY Times Opinion Piece slamming Merrick Garland, generating headlines like this one:
Notice “or lack thereof” immediately after reporting that the DOJ seized the phones of lawyers in Trump’s inner circle. Weissman’s argument, like Honig’s, was that Garland was doing it all wrong.
It seems to me that seizing the phones of one of Trump’s lawyers and a top DOJ lawyer was an “overt” action.
Anger at Garland in this particular media circle was continuing to build.
I suggest that there was no evidence that Garland was deliberately slow-walking or entirely bungling the investigation. There was evidence of a leak-proof ongoing investigation targeting Trump and his inner circle.It goes without saying that we have a problem if a portion of the population is being misled about an important government function by legal experts.We know what happened next:In August, the DOJ shocked the nation by searching Mar-a-Lago pursuant to a warrant.
The DOJ did, in fact, indict Trump in DC for the January 6 attack and in Florida for taking top-secret documents with him
As far as I know, only Laurence Tribe, of all the pundits I picked on, apologized and admitted he was wrong about Merrick Garland. If any others apologized I missed it. I’m not persuaded that an apology can undo the damage, but at least an apology shows an element of intellectual humility.
Remember the first legal expert / former prosecutor I mentioned? The one who, in June of 2021, predicted that Trump, Giuliani, and Gaetz would be indicted within three months? With the year, he became one of the more vocal Garland haters on Twitter. Here is an example:
When his prediction turned out to be inaccurate, he never questioned whether perhaps he overestimated how quickly a case like this could move. Instead, he dug in and insisted he was right all along. Charges could have been brought within 3 months. The problem was that Garland did nothing.
The others similarly came up with theories for why they were right all along.
Theory #1:” I was right all along. The DOJ unnecessarily delayed the investigation for a full year. “ (This is proven wrong by the timeline. See also this post.)
Theory #2: “I was right all along. The DOJ did nothing until the J6 Congressional hearings began in the summer of 2022, and then they began investigating because they were pressured into it by the Congressional committee.” (This one is also easily debunked by the timeline. Everything I listed thus far happened before the first January 6 Congressional hearing.
Theory #3: “I was right all along about Merrick Garland. Nothing happened until Jack Smith was appointed.
Smith was appointed in November of 2022 when Trump announced his candidacy for president. Theory #3 is debunked by the fact that all of these things happened before Smith was appointed:
Between September and December 2022, the DOJ had to jump through legal hoops to secure the testimony of three of Trump’s lawyers, M. Evan Corcoran, John P. Rowley III, and Timothy C. Parlatore, Pat Cipilonne, Rudy Giuliani, Pat Philbin, Marc Short, and Greg Jacob.
Then, on June 23, 2023, The Washington Post published a “bombshell” that some insiders didn’t like Garland’s approach and wanted him to start with the fake elector plot. The insiders then accused Garland of not getting to the electors for a year when he could have gotten to them sooner. (None of this was a bombshell.)
But what happened? Big-name legal commentators waved around The Washington Post piece saying, “See! Look! I was right all along! Garland was doing it wrong!”
It was embarrassing and unworthy of intelligent lawyers.
Then things got worse. Because the legal commentators who had been slamming Garland for a year claimed to have “evidence” that they were right, the article went viral. People read the misleading headline and came to a different conclusion: “See! We were right all along! Garland did nothing for a year!” (For my breakdown of that Washington Post piece and how the reporting was twisted and misunderstood see this post.)
People without intellectual humility rarely admit they were wrong. Moreover, the same pundits who spent 18 months misleading the public about the investigation are back on TV offering new opinions that many viewers will accept as facts. They lost no credibility. The people who demanded accountability faced none for misleading the public.
On this episode of The Enemies List, Rick talks with the senior White House correspondent for the Huffington Post, Shirish Date about his recent article on Trump's coup attempt and why we can't forget about it.
Trump isn't attempting to delay criminal investigations into his conduct, writes Teri Kanefield; he's working to derail and destroy them. People praising his successful "delay tactics" are missing that in Court, as in the 2020 election, he is a loser.
Facing disbarment, Eastman seems poised to plead to "stupidity" and claim "witch hunt." But the California State Bar is unlikely to view stupidity as a valid reason to allow him to continue practicing law.