Election Countdown: 300 Days to Go.
Election Countdown: 300 Days to Go.
In a courtroom, the modern version of the ‘Rose Mary Stretch.’ On the airwaves, some lessons unlearned.
It’s history time! Fifty years ago, during the Watergate investigations, a mysterious ‘18-minute gap’ appeared in Richard Nixon’s secret White House tapes. Nixon’s secretary, Rose Mary Woods, loyally claimed that she had erased that tape ‘by accident,’ and posed for this picture as evidence. It purportedly showed how she could have accidentally hit the wrong button with one hand, and simultaneously the wrong pedal with one foot, while answering the phone with the other hand. This pose became known as the ‘Rose Mary Stretch.’
In arguments yesterday before the DC Circuit Court, Donald Trump’s lawyer presented what may become known as the ‘Sauer Stretch.’ (National Archives photo.)
After a news-packed past few days, I am going to mention two developments, for time-capsule purposes. They both have to do with presentation—the ways that information about our times comes to us.
The first example will be positive, mostly. The second will be mostly cautionary.
1) ‘Seal Team Six’ comes to the courtroom.
Why live video of public proceedings is often destructive. And why live audio is often enlightening.
Over the past generation, we’ve seen how TV coverage in general, and live TV in particular, can change the nature of public proceedings:
The “questions” at Congressional hearings are now mostly performative mini-rants, explicitly designed to be shown on TV or be turned into a meme.1
Speeches on the House floor at the Capitol are usually delivered to empty chambers, and are aimed solely at those might see them on TV.2
Imagine the OJ trial without live TV coverage.
Imagine White House press briefings before they were regularly carried live on TV, which made individual reporters part of the on-camera cast for an ongoing DC-based “reality show.”
Imagine Donald Trump without wall-to-wall coverage of his rally performances from 2015 onward.
I give all these illustrations to set up the point that live audio is different. We all recognize this as a truism: the concept of “a face made for radio.”3 And of course pure audio has always had the power to inflame and distort. This was Father Coughlin’s hateful medium during the 1930s; it was Rush Limbaugh’s route to enormous influence starting in the 1980s. Also of course: live TV can have an unmatched bonding power, first demonstrated in the United States in the days after the JFK assassination, or again after 9/11.
But the importance of the difference between public-events audio, and public-events video, was crystallized for me yesterday. By chance I had a news channel on when live-streaming began of oral arguments at the DC Circuit Court of Appeals. I hadn’t intended to spend any time on this event, but I ended up putting other things aside and just listening to the hour of back-and-forth. It did feel as if this was a significant hour in our history.
The arguments concerned Donald Trump’s effort to dismiss charges from the January 6 insurrection, on grounds that he was immune from prosecution for any presidential acts.4
The drama in this discussion started early, when Judge Florence Pan asked Trump’s representative, D. John Sauer, about the implications of this argument. I stress that this was genuine intellectual drama, rather than histrionics. The judge’s questions were relentless but her tone was low-key and calm.
Most news reports today involve the vivid hypothetical question that Sauer could not answer. You can hear it starting at time 8:00 of this audio-only C-Span version. Judge Pan asks, “Could a president order Seal Team 6 to assassinate a political rival? As an official act, an order to Seal Team 6?” Sauer keeps talking after that, but he has nothing left to say.
For full effect I encourage you to start about two minutes earlier, around time 6:00 of the audio recording, and see how Judge Pan sets up her case. In an understated, “let me see if I have this right” tone, she begins:
“Can I explore the implications of what you are arguing? I understand your position that a president is immune from criminal prosecution for any official act that he takes as president, even if that action is unlawful or for an unconstitutional purpose. Is that correct?”
It all proceeds from there.
The three-judge panel. (C-Span screen shot.)
The hour or so that follows is riveting intellectual, political, and governmental drama, from Judge Pan and the two others on the panel, Judges Karen LeCraft Henderson and J. Michelle Childs.
The performance of the poor, skewered Sauer is also notable in several ways. I’ve always heard that appellate lawyers making oral arguments are hyper-aware of the ticking clock, worried that they won’t have time to get all their points in. By contrast, poor Sauer keeps trying to get himself off the stage, telling the judges “Well, if there are no more questions…” The judges, in charge of the clock, keep coming back with, “Actually, there’s another point here…”
If televised, this could have had excess dramatics. After all, Donald Trump was sitting right there! But much as an audio book concentrates the mind on the words, the audio-only version of this event distilled it to the clash of ideas and principles.
One other note about Sauer’s performance. Some members of Trump’s ever-shifting legal defense teams have been grifters or incompetents. By contrast D. John Sauer’s background is as august as you could find.5
And still he put himself in a position to make arguments that will forever be ridiculed—the lawyers’ counterpart of the “Rose Mary stretch.” And unlike, say, the current version of Rudy Giuliani, Sauer clearly “knows better” than to make the claims he did.
Yes, I understand, a lawyer’s duty is to make the case for a client, not to express the lawyer’s own views. But no one forces a lawyer to take on a case like this. You’d think an element of self-respect would kick in at some point. An awareness of the side he’s choosing in history.
But of course you’d think that about Republican elected officials overall. Alas you would be wrong.
2) Tonight’s Fox ‘Town Hall.’
Tonight, head-to-head, are two dueling live-TV presentations. On CNN at 9pm Eastern, Nikki Haley and Ron DeSantis will square off in a debate before the Iowa caucuses. And over on Fox, Bret Baier and Martha MacCallum will supposedly keep Donald Trump under control at a “Town Hall.”