Reflectors, Attackers, and Poppers

First, some housekeeping: I started an informational page for the criminal investigation into the stolen documents retrieved from Mar-a-Lago. It’s here. I’ll be updating it soon.

I. Reflectors

(I assume that readers are familiar with my DOJ January 6 FAQs, which I first wrote in March to address the barrage of panicked questions I was getting.)

It often occurred to me, over the past few months, that many of the misconceptions about how criminal investigations are conducted and much of the misinformation out there occurs because of the way people get their information. Part of the problem is that the world in general, and our system of laws and government in particular, are so complicated. The other problem is that with social media and a 24-7 news cycle, with outlets competing for clicks, droplets of facts get lost in a cascade of irrelevant information and baseless opinions. As a result, even people trying hard to follow and understand the news, become unmoored from facts.

I learned about reflectors from Peter Arenella, a law professor emeritus (UCLA Law) whose specialty is criminal law and criminal procedure. He was also one of the first TV legal pundits for ABC news, which gives him a unique perspective on TV Legal Punditry. In 1990, his piece entitled “The Perils of TV Legal Punditry,” appeared in the University of Chicago Legal Forum.

More recently, Arenella wrote this: (With his permission, I am quoting from something he is currently working on.)

Today’s pundits often act as appeasers instead of educators. They reflect back and reinforce the views of the audience, thereby entertaining their audiences instead of educating them, and thereby misleading them.

I worked for a major network in the 1990s. I started by commenting on high-profile Los Angeles criminal cases —Rodney King, McMartin, Menendez brothers, and OJ’s criminal/civil trials. I either attended these trials, or I closely observed them. The network wanted to expand my role by using me to comment on national high-profile criminal cases that I had not watched. These were cases where I could only rely on media accounts by lay journalists who did not understand the legal complexities involved. I took the work.

My reckoning came when impeachment charges were filed against President Clinton for lying about a sexual affair with one of his staff. A producer wanted me to debate Alan Dershowitz, my former teacher at Harvard Law School. He knew I believed the entire impeachment process against Clinton was a waste of time and resources. Initially, I refused. I pointed out that, as a professor of criminal law, my expertise was not in our impeachment history, which meant I would be commenting as a private citizen. My producer replied, “Peter, our demographics show that our viewers see you as “a more objective academic with no particular political interest in the outcome of this process.”

To my regret, I did that interview. That was when I realized I had fallen prey to the seductive power of being anointed a “national expert” on all legal issues. Embarrassed by my decision to do that interview, I quit my ABC consulting position and returned to my real passion: teaching and writing about important and troubling criminal law issues.

When I started working for ABC News, I naively believed that I could educate the viewing audience about complex criminal law issues. What I learned is that TV legal commentary usually legitimates whatever TV producers view as the current audience consensus about some high-profile case.

Instead of educating the public, far too much televised legal commentary simply serves as a mirror that reflects back to its particular audience what it already believes.

A recent example of a reflective news article based on innuendo and hearsay

First I’ll look at a news article based on hearsay and innuendo, and then a media pundit who reflected that article.

This New York Times article published on July 11 sent panic and anger through the portion of social and mainstream media that had been critical of Merrick Garland:

The article opens with this: “For the past year and a half, the Justice Department has approached former President Donald J. Trump’s effort to overturn the 2020 election results with a follow-the-evidence strategy that to critics appeared to border on paralysis — and that limited discussions of his role, even inside the department. Then came Cassidy Hutchinson.” (Emphasis added.)

The article thus opens by reflecting popular perception and implies that Cassidy Hutchinson’s testimony changed something.

According to the article, after Hutchinson’s testimony, officials in the department talked about “the pressure that the testimony created to scrutinize Mr. Trump’s potential criminal culpability and whether he intended to break the law.” No source is offered for this. The article then states that much of Hutchinson’s testimony was “new to” investigators at the DOJ and “Ms. Hutchinson’s disclosures seemed to have opened a path to broaching the most sensitive topic of all: Mr. Trump’s own actions ahead of the attack.” (Emphasis added.)

Also according to the article, DOJ officials denied that Hutchinson’s testimony changed anything in their approach.

On July 26, in an NBC interview, Lester Holt (apparently in a follow-up to this article) asked Merrick Garland whether he learned anything new in the J6 hearings. Garland said the DOJ and the Committee have both been engaging in wide-ranging investigations so “it is inevitable that there will be things they find before we have found them, and there will be things we find that they haven’t found.” Garland confirmed that the DOJ is proceeding the same way it has been from the beginning. Thus Garland’s response (no surprise) confirmed what the DOJ spokesperson said: There was nothing that “jolted” the DOJ into changing course.

Nonetheless, here is how social media users (including a few prominent lawyers) reacted to the New York Times’s “Jolted” article:

• Imagine being JOLTED into doing your damned job
• If true, it’s a blight on the DOJ.
• So they weren’t jolted by all the other evidence we’ve seen?

A former prosecutor reflects the “jolted” innuendo and reflects public sentiments

(When I criticize Tweets, I remove the names, but I can’t really preserve the anonymity of a person who publishes an opinion piece that gets widespread attention.) 

On July 11, the same day the “jolted” piece appeared in The New York Times, former prosecutor, Andrew Weissman, also wrote a piece for The New York Times. Like the “jolted” piece, his article, sent waves of panic through left-leaning social media:

The article insisted that Garland is doing it wrong. Support for this opinion included this paragraph:

In other words, he quoted the “jolted” piece that was published on the same day. What is interesting is that the “jolted” piece also provided a link and reference to Weissman’s article. After a number of people wrote to me and said, “Weissman said that Garland is doing it wrong, so Garland must be doing it wrong,” I added a response to my FAQs. (My response: Basically Garland and Weissman have a difference of opinion. Weissman says Garland is using the wrong approach. Garland obviously disagrees. Meanwhile, Garland has access to more information. Why, then, are people assuming that Weissman is right?)

Shortly after Weissman published his piece, we were hit with a barrage of evidence that Trump is the target of more than one DOJ criminal investigation and that the investigations have been going on for some time. As a result, Weissman is now praising the DOJ methods and is Tweeting about how much trouble Trump is in. (If I didn’t remain somewhat irritated by the unnecessary upset he caused in his New York Times opinion piece, I’d be greatly enjoying his tweets today.)

Here is the thing about a reflector: When they reflect our feelings and fears, we feel drawn to them.

How to spot when a legal pundit or expert is a reflector

With great passion and sincerity, they reflect back the mood of the day. Because of a psychological concept called confirmation bias, people tend to trust a reflector.

(To be clear: I am talking about people positioned as experts, not consumers of news.)

An example of a reflector

In June of 2021, this legal expert, a reflector, Tweeted this:

Between November 2020 and the spring of 2021, there was much talk of The Big Lie, a form of propaganda used by totalitarian regimes. This was when scholars like Timothy Snyder explained that a Big Lie was one that, to believe it, you:

• must disregard the evidence of your eyes and ears.
• must accept a huge conspiracy theory
• feel inspired by radical action.

The fact that Trump continued telling the Big Lie after he left the presidency was frightening. The above Tweet reflected back people’s fears while suggesting (falsely) that Garland has the power to make liars stop lying.

Another problem with the above Tweet is that lying is not a crime and the DOJ does not prosecute lies, even Big Lies. If the lie leads to a crime, they can prosecute the crime, but they start by investigating the crime. Starting with a crime and looking for the perpetrator is justice. Starting with the liar and looking for a crime, means starting with a person. Starting with a person and looking for a crime is persecution. 

Here is another tweet from the same reflector:

From something Garland said in a speech, this reflector draws the conclusion that “TRUMP. WLL. BE. CHARGED.” The reflector reflects back the hopes of the audience. Although the reflector positions himself as a legal expert, drawing that conclusion from Garland’s statement required no legal training — and in fact, was overreach.

Here is another from the same reflector:

To the extent that this tweet has anything to do with the law, it is not an accurate reflection of the current scholarship regarding the uses of deterrence and the effects of criminal punishment. It is a prediction, not a fact.

One more: 

This demand for Garland to do something “overt” makes no sense (what the heck does “overt” mean??) but it reflects the growing chatter that Garland needed to Do Something.

Example of a non-expert influence who is also a reflector

People who are not lawyers but have gained a large following by tweeting about legal issues are generally reflectors. These are from a well-known television star. Notice the dates and the amount of engagement his Tweets receive.

August 9, 2021:

October 27, 2021:

On August 8, FBI agents searched Mar-a-Lago.

He Tweeted this on August 11,  three days later.

And this one on August 20:

II. Attackers

Attackers are really good at attacking, but that is all they can do. They generally don’t understand how democracy or the law works, which makes them vulnerable to conspiracy theories. People tend to be frightened of what they don’t understand. I have observed that when an attacker is proven wrong, they generally save themselves by pivoting to attacking the opposition (Republicans in general or Trump in particular) and people will forget all about the mistake.

How to spot when an “expert” or influencer is an attacker

Attackers keep you riled. People are drawn to attackers: Recall that the Facebook whistleblower testified that strong emotions like anger generate the most engagement. If an attacker is attacking someone you dislike, they are also winning your trust by reflecting your feelings.

Example: This influencer’s account grew to 600K followers during the Trump era by attacking Trump. The account was often on target and understood Trump well. With Trump out of office, this attacker turned to attacking Garland. These Tweets are from the past 14 months (June 2021, October 2021, March 2022, and July 2022)

I went to see what this account was saying after Garland authorized the search of Mar-a-Lago. The account continues to attack Garland and the FBI, calling them “criminally negligent” and fell back on attacking Trump, which was always successful:

III: Poppers

Poppers are people who pop things off the tops of their heads. It’s an opinion that comes from the gut. If a popper is popping about his or her area of expertise, it’s likely to have value. Our instincts are often right in matters we know about. But often poppers go outside their area of expertise.

The problem is when pops are mistaken for informed legal analysis.

To be clear: Poppers have every right to pop. (Obviously, reflectors and attackers have the same rights.) The goal isn’t to silence poppers, reflectors, and attackers. The goal is for consumers of news to recognize them and not go into a panic spin each time a popper pops.

Poppers often reflect as well, but that’s because they read a headline, feel a strong emotional reaction, and then express their emotional reaction as if it’s an expert opinion. So there is overlap here, but the fundamental difference is that the reflector reads the room and the popper speaks from emotion.

Example of a legal expert who often pops instead of offering reasoned legal opinions

Let’s follow one popper’s Tweets about Merrick Garland through the year.

This particular legal expert has a following of over a million and regularly appears on TV. He’s so well known that most people will probably recognize him from the following description, but I’m not too worried. A person with a million followers and national celebrity must understand that criticism comes with the territory.

This person is a professor of constitutional law. As far as I know, he has zero experience with criminal investigations and has never prosecuted a case nor worked as a criminal defense lawyer.

On November 6, 2021, this popper wrote:

(The Atlanta matter is a fraction of the size of the conspiracy that the DOJ is investigating, and the Atlanta DA had a two-month head start on Merrick Garland. As of now, both investigations are at the grand jury stage.)

November 8, 2021: 

In the above tweet, the popper is responding to a substack article entitled, “Where oh Where is Merrick Garland” written by Steven Beschloss, who is not a lawyer.

November 11, 2021:

December 6, 2021:

(As an aside, this popper is calculating the statute of limitations incorrectly: The statute of limitations may not have expired if the crime is ongoing, so we don’t know whether this will be charged. It may be. It may not be, depending on the DOJ’s strategy.)

March 31, 2022:

Here, the popper is responding to a New York Times headline: 

Thus he freely acknowledged that he was speaking from impatience. He felt an emotion, tweeted it, and imparted his emotion to a wide audience who believed they were getting legal facts from a legal expert.

IV. Social Media Makes it Worse

🎶Second verse, same as the first. Social media makes it worse.🎶

Yale professor Timothy Snyder talks about what he calls Internet Triggers, which he defines as something a person sees on the Internet, felt triggered by, and then repeats. People see these Triggers on the Internet because they are directed at them. The people are then transformed into repeaters of targeted memes.

The problem with Internet Triggers, according to Snyder, is that “they prevent us from thinking complex thoughts.” Snyder finds this terrifying because democracy depends on us having “some sense of time beyond our immediate outrage.” In Orwell’s 1984, the fictionalized totalitarian government worked on reducing the number of words in the language. Internet Triggers do the same thing by reducing our ability to have complex thoughts.

In his Youtube video series, Snyder Speaks, Snyder compares the Internet to the invention of the printing press. These rapid changes in how we get information can lead to disaster because we don’t know how to handle the sudden bombardment of new information, and we are not equipped to separate misinformation and disinformation from facts (or facts from speculation).

Snyder notes that the Protestant Reformation resulted from the invention of the printing press, and the resulting wars left one-quarter of Europeans dead. In other words, a sudden change in how we get information can cause destabilizing disruptions.

We live in a 24-7 news cycle in which media outlets compete for clicks, and consumers of news are bombarded with a constant stream of headlines, snippets, opinions, and declarations by experts, many of whom were not actually experts in the area they are opining about. Unfortunately, much of news reporting has morphed into entertainment.

The result, as I said at the beginning of this piece, is that droplets of facts are lost in the cascade of irrelevant information and baseless opinions.

We, as a society, must learn to navigate this brave new world of rapid-fire information.

Speaking of news, how about some fun content:

When both of your parents are news anchors @Robert7News pic.twitter.com/E1z2J0kyQb

— Jeannette Reyes (@Fox5DCJeannette) August 14, 2022