Government investigations are, to say the least, complex. Moreover, they can simultaneously play out in litigation in the courts, hearings before a legislative or executive oversight body, and coverage in the press. A single misstep can result in embarrassment, severe financial exposure or, worse, a criminal inquiry.
Today, government investigations have an increasingly public component and often resemble theater or reality TV as much as they remain serious legal proceedings. Indeed, as cable news ratings sore, many find themselves discussing the latest real-life legal drama around the water cooler as much as they do last night’s game.
With the public’s ever-increasing interest in government investigations, both public and private sector attorneys are playing a new part in the process—public spokesperson.
However, this call-up from supporting cast member to feature player has had decidedly mixed results. When done effectively, attorneys assist in shaping the legal issues for public consumption in a manner that is honest, candid, and understandable, all while being an advocate for the client. For attorneys representing entities that rely on public support and consumer confidence, this skill is crucial.
However, when poorly executed or when an attorney focuses too much on spin and not enough on substance, an attorney can do more harm than good.
To be both an effective spokesperson and an effective legal advocate, attorneys must demonstrate a heightened understanding of both the law and the media. Many attorneys can opine on the former, fewer on the latter.
Dealing With the Press
A well-trained and experienced attorney knows how to condense complicated legal principles and facts into discernible themes. However, most attorneys are only used to advocating on their own terms—often being given weeks to prepare and extensive time in the courtroom to explain.
With the press, an attorney, at a minimum, must be able to demonstrate:
- a heightened understanding of the content and timing of the news cycle;
- the ability to craft an effective press release and talking points on short notice;
- an advanced understanding that diverse new mediums require alternative types of advocacy;
- the ability to be prepared in an hour’s notice to effectively advocate for a client in a 6-minute segment across news mediums; and, most importantly,
- the ability to stay on message for the client without sacrificing the established facts or the applicable law
On the other hand, by making oneself the subject of the story rather than the deliverer of the message or by using “alternative facts,” an attorney’s public comments can stifle public support and undercut otherwise effective legal arguments. Indeed, a single misstatement of the facts or the law can result in the complete undermining of the attorney’s credibility before a court of law or, worse yet, an admissible admission that undermines the client’s position.
Democrat or Republican, there are myriad examples of the good and the bad. However, the last few months have mostly served as a clinic on what not to do.
Michael Cohen, once the tough-talking fixer for President Donald Trump and cable news mainstay, has reported to prison. Michael Avenatti’s penchant for making himself the focus of all his legal dramas has likely not been particularly helpful to his clients and his cases. And, most recently, Kellyanne Conway has been reprimanded by the Office of Special Counsel for her remarks with the press.
On a different front, only time will tell how Attorney General William Barr’s handling of the Mueller Report will play out. He certainly achieved the goals of his client in shaping the narrative for the first month after the report’s completion, but it remains to be seen whether his tactics were ultimately more harmful than helpful.
With an endless stream of cable commentary, the public’s interest in government investigations is only likely to increase and, in turn, we should expect attorneys to continue to have an increasingly important and outward facing role in these investigations.
While the viewing public may enjoy the added drama of attorneys playing fast and loose in front of the press, the interests of the client and the integrity of the process ultimately suffer when attorneys who lack the requisite skill set shift from playing the role of legal advocate to public spokesperson.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Stephen Cobb is counsel at the national law firm Troutman Sanders LLP. A former deputy attorney general of Virginia and Obama administration appointee at the U.S. Commerce Department, Cobb assists clients through the myriad legal challenges inherent in high-profile litigation and investigations. Follow him on Twitter @TheCobbSquad.