Where Does TV Analysis End and Advocacy Begin?

Those who follow me know that, starting in 2018, I accidentally fell into the world of tv commentary. Over the past six years I have appeared hundreds of times on every major US, UK, and Canadian news network to discuss legal, national security, and political topics. They have included everything from Donald Trump’s legal and impeachment travails to Supreme Court nominations, Congressional spending bills, the Israeli-Hamas conflict, the Hunter Biden trial, and many others. I have literally been on CNN and Fox News within an hour of each other to discuss the same issue. While I do not think of myself as particularly brilliant or insightful, I am part of the Washington DC community and suppose I am passable enough to get invited back. After all, they say “the best credential for being invited on television is having been on television.”

With few exceptions, every matter I have been asked to discuss comes with high political passions and strong counter-opinions. This goes doubly in an election year, when it seems people are far more interested in arguing than debating different opinions. The latest example is the criminal trial brought against Trump by New York District Attorney Alvin Bragg, which seems to have divided our citizenry more than ever.

A recent online exchange with a fellow LinkedIn user has caused me to consider the question – where does providing analysis end and advocacy begin?

Being an “Explainer”

No doubt the safest approach to tv or online commentary is sticking to explaining things. As a former prosecutor and defense attorney I can explain to the audience how an indictment works, the elements of a crime, what objections mean, how juries deliberate, and all the other various criminal law and procedure questions that arise. As a Washington DC insider with experience before Congress, I could explain how the legislative and impeachment processes work. As a member of the military I can provide a look into how strategy and foreign policy is devised, as well as provide insights into future conflicts and outcomes.

This can even work if you are asked to provide a subjective analysis of something. If a host asks a guest to assess the strengths of a case or the merits of a proposed piece of legislation, you can always pivot by saying “it depends who you ask…” or “there are two ways to look at it…” Personally I cannot stand when a commentator does that; however, if your goal is to minimize your chance of offending an audience and maximize the chance of being invited back on air, you can always find a way to avoid answering a question.

Injecting Analysis

So let’s say you take the host’s question seriously and go beyond explaining things to making predictions or judgment calls. Now it starts getting dangerous because no matter how well you support your judgment and convey respect for the opinions of others, you are going to get someone angry with you. I have had the same online followers and personal friends rave about a genius hit I did on one issue and within weeks pan me as an idiot hack for another.

Consider Donald Trump and all his personal and legal drama. I have said openly I think Trump should have been impeached and removed for his role in the J6 riots, that the Mar-a-Lago case against him seems solid (albeit hypocritical), and that the Supreme Court should not grant him immunity for criminal acts performed while in office. At the same time, I have said the recent civil and criminal cases against him in New York are absurd, Fani Wallis’ Fulton County RICO case will likely fall apart, and Jack Smith’s J6 prosecution is righteous though will probably suffer serious legal impediments. So you can imagine there are times I thrill one side of the political divide and anger the other.

Opinion versus Advocacy

Then there’s the Trump criminal trial that recently wrapped up in NYC. I appeared on numerous networks throughout the process (including here, here, and here) describing what was going on, including how the government was prosecuting the case and how the Trump team was defending him. However, this is one where I did not believe being an explainer was sufficient – I thought at the indictment, trial, and verdict phases it was complete nonsense (including here and here). On multiple occasions I have shared at least half a dozen reasons I believe this case should have been dismissed before trial and will likely be reversed on appeal. There are some that fully agree with me and many who do not; but on this matter I felt I was doing audiences a disservice if I stifled my analyses on the various aspects of the case.

So how were these positions received by audiences? As you can imagine there was praise on one side and panning on the other. But one recent exchange on LinkedIn stuck with me. An identified cyber lawyer follower came out of the gate saying my position was wrong because I was politically blinded and simply repeating talking points. When I asked him to redo his posting so we could debate it respectfully, he was more polite but still insisted I was wrong and blinded by partisanship. It seems he took one of two positions: (1) either I was so blinded by political (presumably pro-Trump) leanings that my analysis was slanted, or (2) I knew better but was advocating a pro-Trump position for political purposes. Either way it seems this individual insisted that under no scenario could my analysis be valid or correct.

I will say this back. I would agree that if you are a political operative advancing an agenda you should identify as such. If you are a political analyst taking one side or the other on an issue, that will become apparent. But if you are providing non-partisan legal analysis you should do all you can to call balls and strikes based on your experience as an attorney, not because you are trying to push one political goal over another. All you can do is your best, and no matter what some people will never be satisfied not hearing what they want to hear.

Keeping Your Thoughts to Yourself

Maybe I am overthinking the comments of one online follower, but it’s definitely made me reflect on things. Is it best sticking to being an “explainer” and avoid taking a subjective position on things? Is it possible to analyze a situation without one’s political leanings getting in the way? Or no matter how hard you try will some people just not be happy regardless of what you say?

As I have stressed before, it is always safest to stay out of the spotlight and keep one’s opinions quiet. That goes double for this election year in which people on both sides of the aisle are making apocalyptic predictions if their preferred candidate does not prevail (something of which I roll my eyes, but that’s for another day). But despite this latest exchange I remain an advocate for smart, respectful back-and-forth, with both objective and subjective analysis when called for. And if you have the opportunity to be engaged in the media or professional circles, I wholeheartedly encourage it.

This article contains my personal views and does not constitute legal advice. For more information feel free to message me directly via LinkedIn or X (@JosephMoreno).