McKinney’s short stack

by Steven Lubet

Congresswoman Cynthia McKinney (D. Ga.) might not be your idea of a model legislator, but she may have the makings of a poker player. She is obviously willing to try a high-stakes bluff. Rather than immediately apologize for hitting a Capitol Police security officer, McKinney launched a caustic campaign to discredit the officer and characterize herself as the victim of police brutality. Her claims were extreme, but of course that’s the point. The more aggressive the bluff, the more likely it is to work.

On March 29, McKinney was involved in a scuffle with a Capitol Police officer, when she tried to bypass the metal detector at the entrance to a government building. While members of Congress are allowed to bypass the metal detectors, McKinney was not wearing her identifying lapel pin at the time. According to one account, the officer repeatedly asked her to stop as she walked around the security station. When she continued walking, the officer attempted to stop her, and she struck him. The Capitol Police announced that they were initiating a criminal investigation.

The Congresswoman has responded by lambasting the officer for failing to recognize her. “This whole incident was instigated,” she said at a press conference, “by the inappropriate touching and stopping of me – a female, black congresswoman.” McKinney’s lawyer announced that she is considering filing a criminal complaint or civil lawsuit against the officer alleging racial profiling. “Ms. McKinney is just a victim of being in Congress while black,” he said.

At the time, it was hard to tell whether McKinney had any sort of case, because too many facts were unknown. How many times did the officer call on her to stop? How much force did he use in restraining her? Have white congressmen been routinely allowed to breeze through security without their lapel pins?

Even McKinney’s lawyers conceded that the congresswoman was not wearing her lapel pin as she blew through checkpoint. Nor did she deny that she kept going when the officer called on her to stop. Nonetheless, McKinney and her lawyers insisted that it was the officer’s job to recognize her. “The pin is not the issue,” she said at the press conference, “the issue is face recognition.”

But could Capitol Hill security really operate on the assumption that every officer will be instantly able to recognize all 535 members of congress? Wouldn’t it be far safer – for McKinney and everyone else – to rely on a combination of recognition and identification tags? And even if the officer was expected to recognize McKinney, what was he supposed to do if he wasn’t sure? Was he supposed to let someone rush past him without going through the metal detector because she might be a congresswoman? Or was it more reasonable to ask her to stop for a moment so he could check her identification or at least get a better look? And when she ignored his repeated requests, what choice did he have but to stop her?

McKinney sidestepped all of those questions, and kept restating her charges of discrimination and profiling – which is just how a good bluff works. Bluffing depends on uncertainty. Did the Capitol Police really have a history of discrimination? Did the officer really use excessive force? Does McKinney have solid evidence to back up her claims? And how much were the Capitol police willing to pay – in the currency of reputation and credibility – in order to find out?

Whatever you think of McKinney, it was hard not to be impressed by the way that she kept raising the stakes. It would have been hard enough for federal prosecutors to take on a member of congress in any circumstance, but she put them on notice that they might be publicly branded racists – and perhaps face a civil rights lawsuit – if they filed charges against McKinney. Under that sort of pressure, no one would blame them for backing off.

That’s the nature of a bluff. Just ask any poker player. By putting enough chips on the table, you make the game too expensive for the other players. Even if they believe they are holding winning cards, a massive raise can succeed in intimidating them into folding their hands, because they have to wonder whether you’ve got an ace in the hole.

Unfortunately for McKinney, she forgot that others can play the same game. Rather than quit, the prosecutors made a stunning raise of their own. They “came over the top,” as card players say, by announcing that a grand jury would consider felony charges against McKinney.

Now it was the Congresswoman’s turn to face uncertainty. Did the Capitol Police have witnesses? Videotape? How much was she willing to pay to find out?

So McKinney flinched. Speaking on the floor of the House of Representatives, she apologized for the incident and announced her support for the Capitol Police – without a word about racial profiling or discrimination.

Cynthia McKinney wasn’t the first politician to overplay her cards, but at least you can say this for her: She knew when to fold ’em.

Steven Lubet is Professor of Law at Northwestern University and a nationally recognized expert on trials and trial strategy. His latest book, Lawyer’s Poker: 52 Lessons that Lawyers Can Learn from Card Players, is due out in May. Visit the Lawyer’s Poker website to learn more!