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That’s an Ugly Baby!

January 27, 2021

Uncategorized

Michael Geiger

That’s an Ugly Baby!

Upon meeting someone’s new child, have you ever heard anyone exclaim: “That’s an ugly baby!”  Of course not.  You hear “What a beautiful cild!” or “What a pretty little baby!” or maybe even “What a sweet little thing!”.  We inflexibly utter these responses even if we secretly think that the baby looks like Yoda’s less attractive sibling.  

More on the ugly baby later in this story.  We need to turn to Congress to really start this post.  More specifically, we need to visit the words of one U.S. Representative, Michael McCaul, who represents Texas’ 10th District.  Representative McCaul communicated with others in real time while barricaded in the Capitol on January 6, 2021.  McCaul, a Republican, believed his life and the lives of many others were imminently and directly threatened with the violence.  Fast forward about one week and the prepared and measured words of Representative McCaul differ dramatically when it comes to an impeachment vote.  These differences in statements and tone provide a useful lesson and remind us how amazingly different the political world operates versus the reality in which the crest of us find ourselves every day.

Spoiler Alert:  This blog uses the words of Representative McCaul to demonstrate a few points.  It matters not if McCaul is Democrat or Republican, conservative or liberal.  We can find examples of such dichotomies from any member of Congress.  All of these politicians engage in the same behaviors and practices, regardless of party affiliation.  I am picking on poor Representative McCaul as his own words so clearly establish the points to be made on issues so very fresh in our minds.  Also, I am not picking on ugly babies.  In fact, I have never met an ugly baby and believe all babies are beautiful and sweet children.

On January 6, with the Senate scheduled to certify the votes from the Electoral College, Representative McCaul recalled the scene around the Capitol.  “I’d seen this group gathering in the morning [for the Trump rally], and I was very worried that something like this was going to happen because you have a lot of hostile people outside the Capitol.”  

Later in the afternoon on January 6, Representative McCaul remained barricaded within his Congressional offices when the U.S. Capitol was attacked by the very group about which he expressed concern.  McCaul found the composure, and time, to speak with reporters from the Houston Chronicle over the telephone as events unfolded.  Speaking from the confines of his offices, McCaul stated: “It’s a sad day for America.  The last time something like this happened was when the British invaded in 1812.”  An amazingly accurate historic reference while under siege!  McCaul described the scene: “I’ve never seen the Capitol under attack like this, where they literally broke down the barricades, they broke the windows and doors and got into the Senate chamber, and took that over trying to get into the House chamber.”  McCaul continued: “We were very worried they were going to bust the doors down.”

Representative McCaul concluded: “It’s disgraceful.  One of our finest institutions, and really the building that represents our democracy, is under attack. . . .  This is not how democracy is supposed to happen.”  In the moment, Representative McCaul presented himself as incredibly poised and thoughtful, especially for one in grave danger.  McCaul cogently offered the details and could still envision the larger picture of the impact on the institutions and democracy itself.

One week later, all members of the House, including Representative McCaul, were called upon to vote on the Article of Impeachment of the President.  In voting against impeachment, Representative McCaul stated that he wanted more time to review “the facts and the evidence” about the events relating to the Capitol riots.  McCaul noted that he opposed impeachment “at this time” but observed “I truly fear there may be more facts that come to light in the future that will put me on the wrong side of this debate.”

Huh?  More time?  Review of facts and evidence?  Representative McCaul proved himself a witness in his telephone call with the Houston Chronicle.  McCaul possessed first-hand, personal knowledge of the events at issue.  He fortunately lived through the experience, with the key being that he experienced it.  As the events unfolded, he compared the circumstances to the British military attacks on the United States in 1812.  In real time, he concluded that the actions undercut the pillars of democracy and threatened the republic itself.  No additional time or review would be necessary.

Perhaps Representative McCaul referred to President Trump’s role in inciting the crowd, as opposed to the rioting itself.  McCaul again needs to look back at his own words.  He remained worried that “something like this” would occur based on the nature of the crowd gathered in hearing President Trump speak.  

We are all aware of President Trump’s speech.  In sum, President Trump encouraged the crowd by telling them that they numbered in the hundreds of thousands, they were strong, they needed to fight, and he was with them.  Representative McCaul understood well the dynamics in play.  His preliminary comments to the Houston Chronicle on January 6 confirmed this knowledge.  Even if some details were missed, McCaul, and every House member voting on impeachment, had a week of unrelenting news stories about the incidents to become well-versed on the potential impacts.  On these issues, there could be no new or additional “facts or evidence” for McCaul to review.

Perhaps Representative McCaul wanted to better evaluate all the “facts and evidence” leading up to January 6.  We must remind ourselves that Representative McCaul himself was on the ballot on November 3 and had campaigned alongside candidate Trump.  McCaul remained fully cognizant of all positions raised in the national election, including the questioning of the integrity of the election itself.  Since November 3, Representative McCaul lived within the Washington political bubble and most surely knew of all the efforts to overturn the election, as did all of America.  There would be no need for additional facts.  There could be no need for additional evidence.  McCaul himself was part of the “Palace Intrigue”.

In casting a vote on impeaching the President, for this article, I take no issue with a vote in favor or against impeachment.  I do, however, believe that Representative McCaul claiming he needs additional time for further investigation represents a disservice to his constituents and the country.  McCaul could have stated that, in his view, the matters do not constitute high crimes or misdemeanors.  He could have opined that, in his opinion, the issues do not merit impeachment.  He could have claimed that impeachment with only a week remaining in a Presidency would further hurt a nation already divided.  Any reason along those lines would allow his constituents the ability to judge his vote.  Instead, on such a vital national issue, Representative McCaul played the classic Washington “Heads I win, Tails you lose” card.  

The claims that more time would be necessary for evaluating the conduct ring hollow.  No additional facts or evidence would be necessary as McCaul experienced the reality himself as he detailed to a reporter.  With his statement, McCaul sought to sidestep the issue in its entirety and set up himself for victory regardless how the matters eventually turn out.  If public opinion breaks against Trump, Representative McCaul can point to his claim that he, as a reasonable person, could not have rushed to judgment on matters as serious as impeachment.  But now, with the benefit of hindsight, he would have voted to impeach, just as he stated when he voted.  Alternatively, if his constituents still strongly support Trump, McCaul has the safety net of claiming that he voted against impeachment.  He would claim that nothing new or additional came out to change his mind.

I fully appreciate that Representative McCaul, and all members of Congress regardless of party affiliation, make a political calculation in positions adopted. In general, each member of Congress seeks to offend no one and be able to explain away any action or vote, as circumstances dictate.  I do not cast blame on Representative McCaul or others who so act as the system encourages and rewards that behavior.  Unless and until the system demands accountability, that dynamic will persist.  Representative McCaul can only get himself in hot water if he exclaims: “That’s an ugly baby!”

Years ago, when I represented a large corporation, I got know a plant manager fairly well.  He is credited with coining the phrase “That’s an ugly baby!”  No one wants to say “That’s an ugly baby!”  No one wants to admit or note that the baby is less than attractive.  The ugliness of the baby is hardly the baby’s own fault.  Nonetheless, at rare times, you may encounter a baby that is, well, ugly.  Yet, if you exclaim that the baby is ugly, you will encounter the wrath of parents, grandparents, and probably most with any sense of decency.

The plant manager empowered his team members to utilize this phrase in describing circumstances which had become completely screwed up or “ugly”.  Perhaps a production run was lost as product cured a minute too long in process as a timer malfunctioned. Perhaps an environmental inspector showed up for a surprise inspection just as a valve malfunctioned on a tank.  Perhaps the production manager misread the order and produced 1,000 instead of 10,000 widgets.  Each circumstance could be overcome, perhaps at significant cost and effort.  Each circumstance might have been avoided, perhaps with greater training and preparation.  Each circumstance might have been avoidable, perhaps with redundant protective systems in place.  

Sometimes, you just have to say “That’s an ugly baby!”  Once managers, operators and employees accepted accountability, they would be able to claim “That’s an ugly baby!” as there simply is no way to avoid the hard truth.  Recognition of an “ugly” baby liberated all involved to discuss the baby, accept responsibility, and find a path forward without having to again address just how ugly the baby might be.

In mediations, I tend to encounter more lawyers and participants acting like Representative McCaul rather than the plant manager.  When presented with adverse facts and circumstances which undercut their legal positions, so many practitioners assert that the “facts and evidence” yet to come out in discovery will undoubtedly support their positions.  At a minimum, more time and effort in discovery is needed before conclusions can be reached.  If fact discovery is completed and support failed to materialize for positions, the storyline becomes that yet to be seen expert reports may surely carry the day for that party.  If fact and expert discovery have been completed, it becomes “just wait for the summary judgment motions” not yet drafted.  Just as Representative McCaul can always claim he needs more facts and evidence as well as more time, so too can these participants.  

What these mediation participants fail to recognize is that the Representative McCaul approach actually keeps the issues in play for the adversary.  The opponent can, and will, keep pushing on the issue inquiring exactly as to what facts or evidence could possibly be developed that have not already been disclosed or pressing the adversary for case law on point.  No one is present to call members of Congress on the carpet for their vote, at least not when the vote is cast.  In mediation negotiations, you will be challenged and you need support beyond “give me more time”.

Where “facts and evidence” have been set beyond legitimate debate, I find it a more useful and productive approach to concede “That’s an ugly baby!” when appropriate.  Where participants turn to the mediator and acknowledge that particular facts are troublesome or positions a challenge to overcome, the discussion moves beyond those points.  The parties can change course and evaluate the worth of the position and no longer dwell on the merits.  If one party keeps pushing those points, the mediator will advise that the opponent understands and actually valued that position into the offer on the table.  All parties move forward and away from the challenging issue.  The ugly nature of the baby no longer needs to be discussed.

The mediator can assist by calling out an ugly baby if the party refuses to do so.  The mediator can explain the benefits in leaving the ugliness of the baby behind once it is acknowledged and addressed.  As for Congress, they appear to be on track to host their own ugly baby contest.  I am not certain I can assist them.

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