|
|
 |
|
 |
 |
| LEGAL TV | |
 October 19, 1998 
|
|
 |
|
|
TERENCE SMITH: Now joining us are four lawyer pundits. Roger Cossack is a legal analyst for CNN and co-host of "Burden of Proof." He's been both a prosecutor and defense counsel. Barry Scheck defended O.J. Simpson and is a professor at Benjamin Cardozo Law School. Last April he drafted an ethical guidance for lawyers doing media commentary. Ann Coulter is a legal analyst and author of High Crimes and Misdemeanors, the Case Against Bill Clinton. Paul Campos is director of the Byron White Center for Constitutional Study at the University of Colorado. He's author of Jurismania, the Madness of American Law. TERENCE SMITH: Paul Campos, let me begin with you. You have criticized legal commentary as a sort of rhetorical gamesmanship that, in your view, injures the public debate. What do you mean by that? |
|||||||
Injuring the public debate? |
||||||||
|
TERENCE SMITH: All right. Ann Coulter, let me ask you, when you appear on television, are you providing legal analysis or political commentary? ANN COULTER: Legal analysis. I disagree with Mr. Campos on whether this is a legal question, what a high crime and misdemeanor is. It's just decided by a tribunal other than the Supreme Court. But that doesn't mean that it's not a legal issue. Congress decides, but there are standards. There are precedents. I mean, Paul is correct in this sense, and I think some of the legal commentary does verge off in this direction of discussing a high crime as if it's a criminal offense. It's not a criminal offense. But there are standards. There are precedents. It goes back 600 years. And the same way lawyers can interpret things like what cruel and unusual punishment is, what the First Amendment means. It's a legal question in the Constitution, and there are precedents. TERENCE SMITH: Barry Scheck, when you wrote the ethical guidelines for criminal defense lawyers appearing on television, doing this sort of media commentary, what was the problem you were trying to solve? Why was there a need for it?
TERENCE SMITH: Roger Cossack, you actually wear two hats here - in a sense that you're host of a show and invite lawyers on and, of course, do legal analysis, yourself. You frequently identify guests on your broadcasts simply as a former federal prosecutor. Is that giving the viewer enough information?
TERENCE SMITH: Ann Coulter, you have acknowledged that you heard some of the Linda Tripp tapes before Ken Starr did. That would suggest you're wired into one side of that story more than the other, as your book title would, I would submit. How should you be fairly described?
TERENCE SMITH: You mentioned pay, so let me ask you - how often are you paid for the legal analysis, and what is that pay for? ANN COULTER: What do you mean, on TV? TERENCE SMITH: Yes. ANN COULTER: I am paid about as much as I'm paid to come on this program. (laughing) TERENCE SMITH: But you have been paid, in fact? |
 |
|||||||
Identifying the pundits. |
||||||||
|
ANN COULTER: No. There are a few TV shows out there -- you missed my point. If you're being paid by the tobacco industry and you're on TV discussing tobacco legislation, or tobacco laws, or the tobacco lawsuit, I think it would be a relevant piece of information. And that doesn't go just for lawyers. That goes for any kind of pundit. I see Kissinger all the time, you know, on TV, giving his opinion as a foreign policy expert without explaining which countries are paying him. I'm not saying he's not being honest or lawyers aren't being honest. In fact, I think some lawyers - I mean, this is what lawyers do for a living. We're hired by clients, and we argue a particular point. What I am more concerned with than who's paying the lawyer, though I think that should come out, or who someone voted for in the last election, is what Barry's saying, and that is whether they know what the law is. Barry was saying, you know, they haven't read the testimony that day. Half the time they haven't read the U.S. Code. They don't know what the law is. I don't talk about subjects I don't know about. And it seems to me you can make strong arguments from both sides, but you ought to be saying what the law is. And I think way too often lawyers are coming on just stating things that are patently false, either because they're lying, or they don't know what the law is.
ANN COULTER: Well, if I could - BARRY SCHECK: Just let me finish. From the point of view of journalistic ethics, you know, there's a problem here. If you're going on the air and you're talking about the tapes, from the journalism point of view, does the audience have a right to know that you actually listened to them, because you are commentating about the substance of them? Isn't that something in terms of making biases or even just plain important information known to the public that's important? ANN COULTER: Well, I think if I had been influenced and biased, I would have been wrong in my legal commentary more often. TERENCE SMITH: All right. BARRY SCHECK: It's not a question of influenced and biased. I mean, if you've actually heard tapes that people - ANN COULTER: Well, I wasn't really discussing the tapes. BARRY SCHECK: The people - but at that point in time everybody was discussing the tapes, whether Monica Lewinsky was believable or not, or Linda Tripp was believable or not, how much credit you put in the tapes, you'd actually listened to them, but oddly enough, we didn't know that you had. TERENCE SMITH: Paul Campos -- ANN COULTER: I don't see what difference that makes. TERENCE SMITH: Paul Campos, let me ask you this. I suspect this conversation that we're listening to illustrates some of the things that bother you about legal commentary - PAUL CAMPOS: Precisely. TERENCE SMITH: -- on television. maintained as we work together. |
 |
|||||||
The adversarial nature of the U.S. legal system. |
||||||||
|
TERENCE SMITH: Roger Cossack. ROGER COSSACK: Paul, I think that in a sense what you're doing is taking the debate over high crimes and misdemeanors and taking it out of context. Remember that for the last several months we have - we, lawyers, have discussed a grand jury investigation of which a special prosecutor has investigated. Who better to talk about those things than lawyers, lawyers who know something about the criminal law, people who have represented clients before grand juries, who better to describe that? And what has taken back into political context with the impeachment, and I understand the issue because we at "Burden of Proof" had that problem in terms of trying to decide is this political, is it legal, and we think it's a little of both, and we try and do our shows with politicians, members of the House Judiciary Committee, as well as lawyers, to try to accommodate that straddle.
ROGER COSSACK: It's not entirely political because, remember, these charges are phrased in legal terms, obstruction of justice is a legal term. Perjury is a legal term. BARRY SCHECK: Frankly, Paul, I think you're - I agree with you about the problem, but I think you're missing the point as to the cause. It's not the nature of lawyers, per se. It's frankly the nature of the media forums in which people are talking, and they're not always lawyers, very often they're political consultants as well. The problem is, is that the shows we're talking about are designed to accentuate conflict, to sound bite people in like seconds, the producers are picking people so they'll fight with each other to make good television, to create a certain kind of ratings vehicle, and basically we're not getting context, we're not getting a sense of proportion, we're not really getting educated. And that's really a problem here. It's the media that's creating the forums. It's not the nature of lawyers per se. TERENCE SMITH: Just a final word from Ann Coulter and then we're out.
TERENCE SMITH: All right. Regrettably, we're out of time. Thank you all very much. |
||||||||
| |||||
 | |||||
| |||||
|
|
| |||
| |||||
| |||||
| Support the kind of journalism done by the NewsHour...Become a member of your local PBS station. | |||||
PAUL
CAMPOS: Well, I think the Clinton saga is a prime example of what I'm
talking about in that regard. If we look at the media, it's saturated
with lawyers, we have nothing but lawyers on TV, it seems these days,
in the role of news commentators. And many aspects of the Clinton business,
in fact, the most important aspects, have almost nothing to do with
anything that lawyers have any particular technical expertise regarding.
For example, the question of whether President Clinton should be impeached
is essentially a purely political question to which lawyers bring almost
no special kind of knowledge. And for lawyers and law professors to
be the people who are constantly asked, should Congress impeach President
Clinton is I think very similar to asking lawyers constantly, should
Congress declare war, which is another very important constitutional
function that the Congress has and which is another thing that I would
think obviously lawyers have no particular expertise or knowledge about.
BARRY
SCHECK: Well, emerged very quickly when this whole group of pundits
came on television, when you're actually the subject of news and you're
trying these cases is the first thing your realize is that most of the
people on television really haven't watched the testimony from the day
before, haven't reviewed the transcripts, and many of them weren't even
particularly expert in the areas where they are being asked to comment.
And it drove everybody crazy that actually is the subject of the trial,
so we thought first a fundamental one is be competent in the area that
you're supposed to be commenting on. Secondly, it is actually when you
become one of these pundits, very difficult - as in your set-up piece
was revealed by Mr. Berenson and others - to keep your composure and
dignity and really get a good point across because you are forced into
a situation where you're in a food fight, the producers pick people
who they know they are going to disagree, they provide very little time
for thoughtful comment, they don't provide an atmosphere, frankly, where
thoughtful debate can take place, and so it doesn't. 
ROGER
COSSACK: Well, it is giving the viewer enough information if that's
all they are in terms of what their background is and we're bringing
them on to talk about a specific thing a former federal prosecutor should
know about. But oftentimes, we will have people on our air who are former
federal prosecutors and have political connections. That may be that
they're a former federal prosecutor and were perhaps counsel to the
Republican or the Democratic National Committee, or served in some political
capacity. When that happens, what we try and do at all times is to give
two titles, so that people will know, yes, it's a former federal prosecutor,
there's an expertise in criminal law, but, look, it's a political leaning
also. 
ANN
COULTER: I think that's incorrect - what you just said. I'm a journalist
as well, and I have a lot of sources on a lot of things. I mean, unless
you're going to say that Newsweek Magazine and Kathryn Graham
are wired into a particular side, I happen to have heard the same tape
they heard. So, no, I wasn't getting it from, you know, Ken Starr's
office. I'm a journalist, as well as a practicing lawyer, and I'd like
to say I totally, totally agree with what Barry just said. I really
think that is the main problem with legal commentary. I think it has
nothing to do with how people are identified. I mean, it seems to me
if you're being paid by a particular outfit, whether it's the Democratic
Party, the tobacco companies, the anti-tobacco companies, if you're
being paid to take a particular position, I think that should come out.
But to try to guess, well, this person is a Republican, well, you know,
maybe this person -- that is to say me - is in favor of the president's
impeachment based on my reading of the law and 600 years of history
on the Constitutional Convention. You're sort of putting the cart before
the horse here.
BARRY
SCHECK: But there is a difficult question, Ann, regarding, let's say,
your listening to the tapes. I'm not necessarily saying that puts you
in one camp or the other. But obviously anybody who got to listen to
the tapes before Ken Starr and contemporaneously with Michael Isikoff
arguably is wired in to something. And I think the problem is, is that
when you get on the air as one of these pundits, are you wearing your
journalism hat, or are you wearing your lawyer hat? A lot of thought,
I think, has to go into those roles. Just from the point of view --
PAUL
CAMPOS: Yes. I think that one of the most striking aspects of our legal
culture is its highly adversarial character, which is not surprising,
given that we have an adversary system in which we usually resolve things
through some kind of head-to-head litigation, and what we tend to see
in the media is a replication of the discourse of the - of a courtroom
in which each side will characterize the evidence and the arguments
in the most slanted and biased way that they can get away with, that
they believe will be effective under the circumstances, given the decision-maker,
and it doesn't strike me as a particularly desirable or mature way to
discuss the kinds of political and cultural issues which lawyers are
very often asked about, and let me just elaborate on that point a bit
by saying that when Ann Coulter says that there is a particular expertise
that lawyers bring to the table about what high crimes and misdemeanors
means, that's true in a very limited sense. I mean, there's something
that we can learn from history here, but almost the entire substance
of a decision will essentially have to be based on the political and
cultural norms of the present moment, something that lawyers have no
particular knowledge about and to see lawyers engaging in this kind
of litigation posturing over a question like what the phrase "high crimes
and misdemeanors" means, I think brings the whole legal system into
a sort of bad light. 
TERENCE
SMITH: Well, fair enough, but you have to - now it is political. Now
it is in the Congress. And it ranges from - 
ANN
COULTER: Well, moreover, we're not going to win/loss records. I've never
been associated with a profession, where people go out and make predictions
constantly about things like how a court will rule, what sexual harassment
is, whether other women will be able to be deposed. The presidential
immunity case and many people are consistently wrong, over and over
and over again. It's so easy to line up win/loss records, and the same
ones who have been wrong 17 times before come out and make up something
about whatever the next legal question is. I really think a win/loss
record tells you more about a person's bias than any investigative reporting
the person has done. 
