Opinion Forum

What Could Herman Cain Have Done to Revive His Damaged Candidacy?

November 17th, 2011

A postmortem

I drafted this article about a week ago and have updated it to reflect current realities. Due to the recent declines in Mr. Cain’s standing, there may be little sense in publishing it now. Nevertheless, here goes.

Many articles have claimed that Mr. Cain and his staff bungled their responses to multiple harassment accusations; they did. That the harassment accusations against Mr. Cain were themselves bungled, probably contrived and had apparent inconsistencies has been of little help to him; he could have used those bungles to his own advantage. More inconsistencies in the accusations have surfaced.

The dangers facing Mr. Cain should have been clearer to him sooner than they appear to have been. Victor Davis Hanson noted on November 9th that

I thought it was only a matter of when, not whether, Gloria Allred, the leftwing billboard lawyer, would show up at a press conference with more “evidence” of Cain’s “serial” transgressions against the meek and defenseless of yesteryear. All the usual Allred landmarks were there: her crass quip, “stimulus package”; the “no-questions” evasion of cross-examination; the long-distant, heretofore-dormant act of harassment some 14 years in the past, whose graphic details were not shared at the time even with close friends, but are now oddly to be disclosed to 300 million. …

Most establishment conservatives — perhaps mindful of the fates of Christine O’Donnell and Sharron Angle — don’t necessarily disbelieve Cain but do feel that four or five “victims” are too many and that Cain’s responses are too sloppy. [They contend that he] thus should confess at least to a married roving eye, or perhaps even leave the race — and thereby ensure that a Ross Perot–like tea-party candidate without any political experience won’t blow an otherwise good Republican chance to unseat Barack Obama.

Some of Mr. Cain’s statements on another important topic, abortion, were or were seen to be inconsistent; some seemed so to me and I suggested ways to deal with that dilemma here. His apparent Teflon coating is showing more scratches and seems likely to become thinner and more scuffed as time passes.

Mr. Cain has almost certainly received advice from his attorney, probably good although it is difficult to figure out what it may have been or whether it was taken. Advice from others seems not have been very useful. Mr. Block, his campaign manager, has been adept at shooting Mr. Cain in the foot even when not within shooting range.

A Fox News poll released on November 16th

shows Gingrich’s support doubling in the last three weeks. He stood at 12 percent in late October — before the Cain harassment allegations and Rick Perry’s “oops” debate. Now the former House speaker is at 23 percent, essentially tied for the lead with Romney, with 22 percent.

Romney has been either the frontrunner or in second place in every Fox poll since July. He’s received the backing of between 20-26 percent of GOP primary voters for the last five months.

Cain garners 15 percent. That’s down from 24 percent last month, and slightly below his late-September standing of 17 percent.

Accusations of sexual harassment, credible or not, are political cancer. The best time to deal with cancer is before, not after, it has metastasized. The metastasis is already clear. For Mr. Cain’s campaign to survive, his campaign needed the political equivalent of surgical intervention before it had become too late. That point seems already to have passed.

My initial purpose in writing this article was to present an attorney’s perspective on the most effective type of intervention. Victor Davis Hanson said on November 10th that the harassment mess “will never be resolved and only fade when Cain himself does from the race.” That need not have been the case. For Mr. Cain to fade from the race due to the harassment allegations will be bad for the country as well as for him. Not having put the harassment debacle behind himself so that he could focus more tightly on issues of substantive importance in the presidential race — difficult to do when being portrayed as a monster — he continued to fade from the race; oops moments on such matters as Libya haven’t helped. All of these problems have begun to merge into a growing You Can’t Beat Obama with a Cain sentiment and it’s probably already too late no matter what he does.

What Mr. Cain Should and Should Not have Done.

Responses to scurrilous allegations of harassment, such as “it’s all lies,” “the Democrats, the main stream media, my Republican opponents, etc. are out to get me,” “it’s not fair” and the like have not worked well except with Mr. Cain’s truest believers — referred to with perhaps a bit of double-entendre as his “hard core” supporters in the video below — and there are not enough such supporters to get him nominated and elected. As even their ardor fades, there will be fewer and they will become less enthusiastic.

Trying the same strategy over and over again is unlikely to work any better than it already has; it gets old, quickly. Mr. Cain needed to do something new and different. Submitting to a polygraph test, as he apparently offered to do “if necessary” and/or making a sworn declaration under penalty of perjury have been suggested and that’s new and different. However,

The courts in most jurisdictions doubt the reliability of lie detector tests and refuse to admit the results into evidence. Some states do admit the results of polygraph tests at trial if the prosecution and defendant agree prior to the test that its results will be admissible

The media folks know that. They also know that lies are sometimes detected as truth and that truths are sometime detected as lies. To have taken such a test in a circus-like media environment could have produced tensions likely to skew the results more than normally. Merely releasing an examiner’s report after the fact probably would not have been seen as satisfactory. A polygraph test by a “friendly” expert would not likely have been credited by many; one conducted by a “neutral” or an “unfriendly” expert would have been riskier but would probably have been little better received. However it might have been done, the results would likely have been reported skeptically if favorable to Mr. Cain and with joyous enthusiasm if even minimally unfavorable. Such risks do not seem worthwhile.

A sworn declaration made before a notary public and subject to the penalties of perjury could have been more persuasive. However, it could have been attacked for real or imagined inconsistencies and conflicts with prior statements (as some of his statements about abortion have been). Inconsistencies can be found or manufactured even where there are none; that’s the sort of thing the media enjoy and can do persuasively.

Since Mr. Cain is represented by counsel for the harassment matter, his declaration should have been drafted by counsel based on what Mr. Cain said to him, what Mr. Cain had previously said and what those working for Mr. Cain said and had previously said — as well as on how Mr. Cain responded to multiple questions asked by his attorney. The declaration would have been the proper place to acknowledge and deal with any prior inconsistencies, real or apparent. In asking Mr. Cain questions to accomplish these things, it would have been necessary for his attorney to play the role of adverse counsel and thereby to make the session (or sessions) as confrontational as necessary; the subsequent real cross examination would have been. That’s the only way I know to prepare a transparently truthful declaration, to deal with perceived prior inconsistencies, to avoid new ones and to avoid inadvertent misstatements.The bottom line is that the declaration needed to be patently and transparently truthful while not unnecessarily opening up more cans of worms.

After an apparently satisfactory draft declaration had been agreed upon, Mr. Cain’s attorney should have cross examined him on that draft as if he were opposing counsel. This cross examination practice should have been preceded by an introductory spiel similar to this.

Herman, as you know, you will be under oath for your cross examination. If you are thought to have lied, you can be charged criminally with perjury. Don’t do it. Shading an answer in a way that you sense opposing counsel wants is not OK either. Don’t do it. You will not be there to become his buddy. He may try to come across as your buddy but he is not.

Little white lies are not OK either. Let me give an absurd example to make my point. Suppose that while cross examining you counsel points to his truly ugly necktie with the fake velvet painting of Elvis, tells you that his dear mother gave it to him while on her deathbed and then asks you, “don’t you think it’s a really pretty tie?” Even if you think it’s the ugliest tie you have ever seen, a typically courteous answer would be, “Why it certainly is. It’s beautiful.” That’s what we do in polite chit chat. Cross examination is not polite chit chat. It you don’t think it’s a really pretty tie (his question), the correct answer is, simply, “No.” If a simple “no” is the answer, there is no need to elaborate and doing so can bite you on the ass. If a simple “yes” is the answer, say that, shut up and wait for the next question. Don’t volunteer more information than the question requires and don’t try to add a spin.

I will be there and if I consider the question ambiguous, if I don’t understand it or consider it otherwise improper I will object. Do not blurt out an answer before the question stops and do give me at least half a second after the question has stopped to object. If I fail to do that and you don’t understand the question, you have to say so. If the question is not rephrased to make it unambiguous and otherwise proper, I will direct you not to answer it and state the reason. If I think that you did not answer a question fully enough, I will ask you for clarification when I get to ask you questions after he has finished.

Ambiguous questions are common and are all too often intentional. One of my witnesses in an FCC proceeding, the CEO of a communications company, was asked on cross examination, “Your company’s chief of engineering reports to you, doesn’t he?” Harmless and clear? I objected because it was neither. “To report to” can mean to be subordinate to the superior in a table of organization sense, to have “reported to” the superior everything that happened in a department or both. A procurement clerk “reports” to his boss who in turn reports to his boss and up the line to the CEO. That does not mean that the CEO receives reports on the numbers of paperclips on hand and ordered. Competent subordinates are hired to deal with problems, not to tell their bosses things in which they have no interest and don’t want to be bothered with. That question was dangerous because testimony that the subordinate “reported” to the CEO would have been in the record, ill explained and subject to the interpretation that he told him everything, even when the subordinate had already resolved the problem promptly and well himself. I might have been able to clear up the matter on re-direct, but that might have escaped the judge’s notice when preparing his decision; judges are sometimes lazy. In the present context, reporters can often be lazy or even vindictive and that sort of thing could easily have occurred in media reports of Mr. Cain’s cross examination. That would have happened regardless, but there is no sense in encouraging it.

One important thing I have noticed is that business executives often seem to think that they have to appear to be consistently well informed even as to matters as to which they are not. They must be instructed not even to suggest that they knew more than they actually knew. Trying to seem clever is not clever in such a context.

Any problems discovered during the practice run could have been dealt with effectively, easily and with no damage. During subsequent cross examination for real by opposing counsel it’s likely to have been much more difficult.

The final written declaration should have been given to counsel for the identified accusers and to the press rather than read to them by Mr. Cain; they can presumably read and having him read it to them could have been harmful to him; I think doing that damaged Ms. Bailek’s already dubious credibility. Refusing to respond to questions did so as well. Nor should Mr. Cain’s attorney have said much to the press or to counsel for the accusers beyond that the statement was Mr. Cain’s, that he swore to it under penalty of perjury and that he would be available for cross examination by opposing counsel (but not by the media) the next day at a stated location.

There should be no need for an attorney to say more and attorneys are hardly the most highly regarded people on Earth. If Mr. Cain had done well this would have been far more effective than merely distributing a written declaration. If he had done poorly it would have been a disaster; there are times when such chances have to be taken. With intensive and diligent effort in drafting Mr. Cain’s draft declaration and then in preparing him to be cross examined on it he should have done well.

I think these were the best ways for Mr. Cain to try to get himself out of the now closing box in which he still finds himself. If going through such exercises failed to help him do so, nothing else I have thought of could have.

(This article was also posted at Dan Miller’s Blog.)

Articles written by Dan Miller
Tags: Cain, charges, cross examination, polygraph, response, sexual harassment
Categories: Law, Media, Politics | Comments (2) | Home

2 Responses to “What Could Herman Cain Have Done to Revive His Damaged Candidacy?”

Tom Carter | November 18th, 2011 at 7:35 pm

As I’ve said before, Herman Cain is finished. If these allegations are the proximate cause, fine. But the real reasons should be his profound lack of qualifications and experience, and that would have eventually done the job.

Dan Miller | November 18th, 2011 at 8:10 pm

Tom, you may well be right.

A big problem is how badly he botched the harassment “3:00 am phone call” and its aftermath that he had had warning from Politico would come. He dithered and fiddled while trying to figure out what to do and proceeded, with resolute indecisiveness, to handle it in what I consider the worst possible ways. His Block-headed campaign manager, who remains in that position, did not shower glory upon the campaign either.