• Mario Nicolais

Winning with alternative facts



Outrage at President Donald Trump, his spokespeople and his administration for employing “alternative facts” has become an all-consuming pastime for a very vocal segment of the population. For many, especially in the media, the nonstop stream of alternative — sometimes outright false — statements, messages and tweetstorms signals an overwhelmed organization on the verge of collapse.


But here’s the secret — President Trump is winning.


I’m not writing to the rescue of Kellyanne Conway or Sean Spicer. From the “Bowling Green Massacre” to the Melissa McCarthy impersonator, I am regularly astounded by the things members of the administration say, mistake or not. Often demonstrably false and regularly a perversion of the generally accepted truth, these statements are fodder for reporters and talking heads.


But they are still losing.


That’s where the lawyer in me slow claps the antics of the president. His administration has managed to change the entire dynamic of political communications. Intentionally or by bumbling luck, Trump and his puppets have created a system resembling the defense team in a criminal defense trial. And it is brilliant.


To the chagrin of my liberal friends, I’m not calling any member of the administration a criminal — former national security adviser Michael Flynn possibly notwithstanding. Instead, I’m referring to the burden of proof and the end goal of a defense attorney. Anyone who has ever seen a prime-time legal drama knows the prosecution must prove its case beyond a reasonable doubt; conversely, the defense is tasked with raising any reasonable doubt it can. That already tilts the deck to the advantage of the defense. But our system goes one step further — the defense only needs to raise that doubt in one juror in the pool. While the prosecution must convince every single member of the jury, the defense only needs to create doubt in one.


One of the most common ways for a defense team to accomplish its task is to suggest any alternative story it can. It doesn’t necessarily need to be true — it only needs to be reasonable. However, that test is so subjective and loaded, it is sometimes difficult to differentiate “reasonable” from “plausible” from “if I defy the laws of physics, it could happen.” Just ask any prosecutor and you’ll likely get an earful on how far some defense attorneys stretch the definition of reasonable doubt.


Don’t think so? Go re-binge the cause-célèbre Netflix documentary “Making a Murder.” Dean Strang and Jerry Butting explain the entire plan in great detail. Lay any seed of doubt, no matter how far-fetched, to make even one juror waiver. Too bad for their client they were more successful on camera than in court.


That’s where Trump comes in. He’s also really good on camera — it seems nobody can take their eyes off of him. And he used that to turn the media into a prosecutor and his administration into a defense team. He literally called the media the “enemy.”


When reporters wonder how the president can call leaked reports on contacts between his campaign and Russian officials fake news while his press secretary is simultaneously verifying that the leaks were real and those responsible for the leaks will be caught, they should re-examine the aim of the administration. Simply put, those statements are neither intended to convince the media nor explain the circumstances to the entire American public. Instead, they offer varying explanations of varying plausibility, assumingly targeted to a substantially smaller audience. If two in 10 believe one alternative story, another one in 10 believes a second alternative story, and three in 10 believe a third alternative — soon he has built a base that agrees on at least one thing: those prosecuting Trump cannot be trusted.


That’s the way he wants it. And that is why he keeps winning, to the consternation of many bewildered by his use of alternative facts.



Mario Nicolais is a constitutional scholar and advocate, managing partner of KBN Law firm, and general counsel for Vivage Senior Living healthcare organization. Follow him on Twitter @MarioNicolaiEsq


Read this column in The Denver Post.

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