There is an interesting article in the Washington Post entitled “As A Prosecutor, Kamala Harris’s Doggedness Was Praised. As a Senator, She’s Deemed ‘Hysterical.'”  The Los Angeles Times also described Harris’ style as prosecutorial in nature and referenced her skills in court examination.  The articles raise a common comparison between court and congressional hearings in terms of questioning.  When I served as lead counsel in the last impeachment, I constantly spared with Senators over the failure to follow basic rules of evidence or practice.  The Senators would respond that such rules do not apply to them — which is technically correct though good practices are not always required practices.

Former Trump aide Jason Miller was confronted by USA Today columnist over his description of Harris as “hysterical” in the hearing. Her point is a valid one but the Washington Post suggests that this type of questioning would be considered praise worthy in a prosecutor.  The comparison between actual litigation and congressional examinations is an interesting one.  I have great respect for Sen. Harris and her experience. However, while her questioning began well, it quickly fell into improper questioning if viewed from a litigation viewpoint.  As a criminal defense attorney, I can say that it would not only be viewed as improper but judges would immediately sustain objections to such badgering of a witnesses. Indeed, I was surprised watching the hearing as Democratic senators pummeled Sessions with questions and demanded rapid answers.  Sessions had just been attacked for failing to fully and truthfully answer an earlier (and rather unclear) question from Sen. Al Franken.  Now however they were giving him rapid questions and cutting off his answers. Harris was the most extreme in that respect.

Harris’ question on what Sessions used to refresh his recollection is a standard litigation question and a good approach. Harris was also under a time restriction and reasonably noted that the questions asked of Sessions were “predictable.”  Thus, I felt that she started well.  Moreover, she was under tough time limitations. However, the questioning then became highly problematic in my view.  Sessions was right to decline to continue to answer as he was being interrupted.  Some questions were vaguely worded like whether Sessions had any interactions with Russian business people.  Sessions correctly objected to being rushed into answers but Harris continued to push for such answers.

Harris questioning would have been challenged by any defense counsel and would have led to an admonishment from the bench. It would not be viewed as “praiseworthy.”  I thought that it looked like a perjury trap for Sessions who was trying to answer. Moreover, the questions were not the type that could be easily answered without an explanation like explaining the basis for Sessions declining to answer some questions.

If the Post wants to compare the questioning with actual litigation, Harris questioning (and some of her colleagues) would have been stopped by the Court under a variety of objections from asking compound questions to assuming facts not in evidence to badgering to misstating the law.

Sessions may have been trying to eat time — a standard technique to slow answers to run the five-minute clock. Harris was clearly trying to stop that from happening. However, she went further in asking compound and open-ended questions that could be used to, as Sessions claimed, as a trap.

Of course, congressional proceedings do not follow the rules of litigation. However, the questioning by Harris and her colleagues should not be treated as version of dogged and commendable examinations in court.  The interruptions and rapid fire style are characteristics of Congress not the courts. I do not view Sen. Harris as “hysterical” but I also do not view her questioning as fair or lawyerly.  Indeed, neither attribute is particularly common in the questioning in congressional hearings.

You could certainly see Harris’ experience and training in the first part of the questioning but the second half was not a model of any kind for litigation.