Thursday, January 07, 2021

O'Melveny lawyer reportedly helped craft the Trump administration's COVID response

       Law is a dishonest field. I know that's a harsh thing to say about a profession, so please let me explain by looking at what lawyers do on a case. First, they sift through the evidence and categorize it into two buckets: evidence that helps their client and evidence that hurts. Then they do the same thing with laws; they find the relevant statutes, precedents and policies and then split them into two buckets: those that help their client and those that hurt. Finally, they use rhetorical techniques to try and hypnotize a judge or jury into appreciating the facts and laws that help their client, and diminishing those that hurt their client. 

       Open any two sets of briefs in a case, or watch any oral argument, and you'll see this: two diametrically opposed takes on how the evidence and laws should be applied to decide the matter. And when observing a lawyer, remember that the side they chose among the two opposing views has nothing to do with what they believe. It was solely a function of who paid them. If the other side had hired the lawyer, he or she would be saying the exact opposite. So in that sense, lawyers are paid liars.

       I don't mean to minimize how hard it is to be a lawyer. It can take an incredible amount of work to find those facts and laws, and to craft those arguments. They might have to look through millions of documents, a tedious and painstaking effort. Then there's the task of putting it all together, which requires a talent for communication and rhetoric. It's also work that needs to be done, because unfortunately there are disputes that don't get resolved without a court. But still, if that's what you do all day, every day, you are training your brain to think in a certain way. You're training it to cherry pick and spin.  

       In contrast to the legal profession, there are professions where smoke and mirrors and rhetoric should play no role. Science is one of them. Earlier this year, these two worlds came together when someone tried to use the lawyer's thought process in science. The highly esteemed law professor Richard Epstein tried to use his training as a lawyer to come up with a solution to COVID. You can learn about how that turned out in this New York Magazine article, or in this podcast

 This morning I read about an O'Melveny lawyer who might have been in a similar situation. Last February, President Trump put Vice President Pence in charge of the nation's COVID response. A few weeks later, O'Melveny partner Greg Jacob reportedly left the firm "to counsel Vice President Pence in connection with his stewardship of the COVID task force[.]" (quoting his former colleague Brian Boyle. Incidentally, I worked with these two at O'Melveny. You can read about that experience here.)

       Some commentators cannot understand why the nation's infection and mortality rates are so high, and they blame Mr. Pence's mismanagement of COVID. I personally don't want to go that far, as we don't know what would have happened in an alternate world with different leaders and counselors; who knows, maybe COVID would have been even worse. But it's possible that the administration failed, and it might have been because they spent too much time cherry picking and spinning