Trump Is Not on a “Retribution Tour;” He’s on an Authoritarian Spree

/61 Comments/in , /by

A wave of media commentary about Trump’s lawsuit against Ann Selzer and the Des Moines Register for engaging in First Amendment protected speech has treated it as somehow more ominous than any of the other nuisance lawsuits Trump has filed over the decades.

I’m skeptical whether this marks a newfound escalation (or even whether ABC’s settlement with Trump had any effect at all on it); remember Trump’s lawsuit against the Pulitzer Prize for rewarding NYT and WaPo journalism that (as I laid out) got to the core of the Russian investigation rather than the stuff Trump distracted people with, which — like the ABC one — won the support of a Florida judge sympathetic to Trump’s bullshit misrepresentations, in this case about the Russian investigation?

This Selzer lawsuit follows a long thread of similar ones that are just as abusive, attempts, like so much else that Trump does, to create his own false reality.

What I do know, though, is that contrary to at least three columns (TPM, Puck, Status), Trump is not on a retribution tour.

retribution
noun
ret·​ri·​bu·​tion ˌre-trə-ˈbyü-shən
Synonyms of retribution
1: recompense, reward
2: the dispensing or receiving of reward or punishment especially in the hereafter
3: something given or exacted in recompense
especially : punishment

Did you know?
With its prefix re-, meaning “back”, retribution means literally “payback”. And indeed we usually use it when talking about personal revenge, whether it’s retribution for an insult in a high-school corridor or retribution for a guerrilla attack on a government building. But retribution isn’t always so personal: God takes “divine retribution” on humans several times in the Old Testament, especially in the great Flood that wipes out almost the entire human race. And retribution for criminal acts, usually in the form of a prison sentence, is taken by the state, not the victims.

Synonyms
payback
reprisal
requital
retaliation
revenge
vengeance

If you believe Trump is on a retribution tour, you are accepting his claim that truthful reporting of (flawed) survey results, or truthful reporting of what sources say about Trump associates’ attempts to cover up their ties to Russia, or truthful labeling of lies as lies, amount to some kind of harm.

If you use the term “retribution” to describe Trump’s attacks on the press, you are accepting his frame that free speech that accurately describes his faults is somehow wrong, an injury to be avenged.

Worse still, if you adopt his frame — retribution — you are normalizing the false claims of grievance that animated Trump’s entire campaign, from the kickoff in Waco to the far right rally in Madison Square Garden — a campaign of grievance explicitly defending insurrection against democracy, as Jonathan Karl laid out over a year ago.

He declared, “2024 is the final battle.”

This wasn’t a campaign speech in any traditional sense. Trump echoed the themes of paranoia and foreboding that grew out of the Waco massacre. “As far as the eye can see, the abuses of power that we’re currently witnessing at all levels of government will go down as among the most shameful, corrupt, and depraved chapters in all of American history,” he said.

“They’re not coming after me,” he told the crowd. “They’re coming after you.”

The message seemed to resonate, but its brazenness was staggering. The folks cheering Trump had not taken boxes stuffed with classified documents out of the White House—and it’s safe to assume that none of them spent tens of thousands of dollars to cover up an affair with an adult‐film star.

Whatever you think about the investigations, Trump invited the scrutiny. Special Counsel Jack Smith was probing Trump’s role in the January 6 attack and his failure to turn over that classified material. Fulton County District Attorney Fani Willis was investigating his efforts to overturn the 2020 presidential-election results in Georgia. And Manhattan District Attorney Alvin Bragg was nearing an indictment on charges related to hush‐money payments Trump made weeks before the 2016 election to the porn star Stormy Daniels.

“The DOJ and FBI are destroying the lives of so many Great American Patriots, right before our very eyes,” Trump posted on Truth Social the day after four members of the Proud Boys militia were convicted of seditious conspiracy for their role in the storming of the Capitol. “GET SMART AMERICA, THEY ARE COMING AFTER YOU!!!”

[snip]

“The sinister forces trying to kill America have done everything they can to stop me, to silence you, and to turn this nation into a socialist dumping ground for criminals, junkies, Marxists, thugs, radicals, and dangerous refugees that no other country wants,” he said. The speech was ominous, but one rhetorical flourish stood out. “In 2016, I declared I am your voice. Today, I add: I am your warrior; I am your justice,” Trump said. “And for those who have been wronged and betrayed, I am your retribution.” He repeated the last phrase—“I am your retribution”—and promptly the crowd started chanting: “U.S.A.! U.S.A.! U.S.A.!”

When I spoke with Bannon a few days later, he wouldn’t stop touting Trump’s performance, referring to it as his “Come Retribution” speech. What I didn’t realize was that “Come Retribution,” according to some Civil War historians, served as the code words for the Confederate Secret Service’s plot to take hostage—and eventually assassinate—President Abraham Lincoln.

“The use of the key phrase ‘Come Retribution’ suggests that the Confederate government had made a bitter decision to repay some of the misery that had been inflicted on the South,” William A. Tidwell, James O. Hall, and David Winfred Gaddy wrote in the 1988 book Come Retribution: The Confederate Secret Service and the Assassination of Lincoln. “Bitterness may well have been directed toward persons held to be particularly responsible for that misery, and Abraham Lincoln certainly headed the list.”

Trump’s authoritarian project depends on convincing masses of people that accurate descriptions about him, or equal application of the law to him, or good faith if flawed efforts to measure the number of Iowans who prefer someone else to be president harm not just him, but them, his followers. Trump’s authoritarian project depends on convincing people that because he can’t withstand truthful descriptions, his followers must oppose the truth as a grievous harm, a crime.

Trump’s authoritarian project depends on packaging up his assault on truth as justice.

That’s what you buy into when you use the word “retribution” to describe what he’s doing.

No person who cherishes journalism, truth, democracy should be a party to that kind of obfuscation.

Journalists Struggle to Distinguish Elon Musk’s Chat from Press Conference They Validated

/86 Comments/in , /by

There’s a funny structure to WaPo’s story, bylined by five journalists, on Elon Musk’s chat with Donald Trump.

After discussing the technical problems that delayed the chat for 40 minutes — which Musk attributed to a DDOS attack, a claim anonymous Xitter employees disputed — it described how Musk “allowed the former president to deliver his preferred talking points and a stream of false statements” and mostly kept it comfortable. Then it contrasted that chatty style with the “challenging questions” Rachel Scott and Kadia Goba asked at the NABJ.

Musk billed the conversation with Trump as “unscripted with no limits on subject matter.” But during much of the discussion, he focused on comfortable topics for Trump, such as undocumented immigration. He also allowed the former president to deliver his preferred talking points and a stream of false statements, giving the chat some of the hallmarks of Trump’s signature campaign rallies.

The friendly conversation came after Trump reacted combatively to challenging questions at the National Association of Black Journalists convention — and as the GOP nominee is also attacking Harris for not doing interviews since she announced her campaign for president. Trump reiterated that criticism of Harris on the X Space and repeated his frequent claim that Harris’s rise to the top of the Democratic ticket amounted to a “coup.”

Those were paragraphs three and four.

Twelve paragraphs later, WaPo mentioned — with no comment on any challenge presented by journalists involved — the presser last week, where journalists allowed Trump to make the very same attacks that Musk did.

He has drawn headlines for falsely questioning her heritage, reigniting a feud with Georgia Gov. Brian Kemp (R) and holding a meandering news conference last week.

It’s as if there were no journalists with agency at that presser.

In his first three paragraphs, NYT’s Michael Gold was more succinct. He focused on technical issues, softball questions, and false claims.

What was supposed to be Donald J. Trump’s triumphant return to a social-media platform central to his presidency was marred by glitches on Monday night, when a livestreamed conversation on X between Mr. Trump and its owner, Elon Musk, was significantly delayed by technical issues.

But once their chat began, 40 minutes after it was scheduled, Mr. Musk’s and Mr. Trump’s newly developed camaraderie was on clear display, with the billionaire tech entrepreneur lobbing softball questions that allowed Mr. Trump to rattle off the talking points that have animated his presidential campaign.

The conversation offered little new information about Mr. Trump’s views. Over the course of more than two hours, Mr. Trump attacked Vice President Kamala Harris, his Democratic opponent, as a “phony” who, along with President Biden, failed to address crossings at the U.S. border with Mexico. He repeated a number of false claims, including that the 2020 election was rigged, the criminal cases against him were a conspiracy by the Biden administration to undermine his candidacy and the leaders of other nations were deliberately sending criminals and “their nonproductive people” to America.

Sure, like WaPo, eight paragraphs later, he contrasted that to the NABJ appearance. But he also suggested that poor Mr. Trump grew frustrated at his own press conference.

Last month, Mr. Trump was combative while being interviewed by a panel of Black female journalists at a National Association of Black Journalists convention, where he questioned Ms. Harris’s racial identity. Last week, he grew frustrated by questioning at a hastily scheduled news conference in Palm Beach, Fla., where his answers often meandered and a story he told about a helicopter ride drew significant scrutiny.

Apparently, Gold is so entranced with the three days NYT squandered by chasing down Trump’s false helicopter story he hasn’t figured out that it was no more than a vehicle for more lies about Kamala Harris.

Ultimately, though, the presser was the same: beset by technical problems created because journalists didn’t have mics, largely characterized by softball questions, and riddled with false claims.

Heck, even the combative (if you ignore Harris Faulkner) NABJ interview was also delayed, in part, by technical issues (though also Trump’s refusal to allow live fact-checking) and riddled with the same lies he keeps telling, including the attack on the authenticity of Kamala’s Blackness.

Gold complains that Musk’s conversation “offered little new information about Mr. Trump’s views.” But actual journalists could do no better. Importantly, Trump’s frustrations at the presser came in response to questions about crowd size and his flaccid campaign; Trump’s insecurities are nothing new.

The only thing that distinguished yesterday’s event from the one many mainstream campaign journalists validated with their participation is that Trump slurred his speech more yesterday.

My point is not that there’s some secret formula to elicit actual, truthful answers from Donald Trump. Trump doesn’t believe in truth; he believes in leveraging lies to exercise power. So no standard interview format will pin the man down.

Rather, it’s that journalists are indulging their own vanity by imagining they’re doing any better than Elon Musk.

Given that that’s the case — given that Trump’s attacks on the press have rendered them little more than props in his reality show — journalists ought to reflect on their own failures before they continue to screech that Kamala Harris, who in 23 days has vetted and picked a running mate, added key staffers, and done fairly epic campaign appearances in six swing states, has yet to offer a press conference to many of the same journalists who could do nothing more than make Trump squirm about crowd size.

I’m not saying a press conference with diligent journalists would not have value. I’m saying that if you struggle to distinguish the outcome of questioning from people being paid as professional journalists from what Elon Musk can elicit, your complaint is with the journalists, not Kamala Harris.

And until you fix that problem — until you fix all the inanity driven by a focus on the horse race rather than the outcomes — these journalists would offer little more than conflict narrative and drama if given the chance to question the Vice President about her campaign.

Update: In a piece calling on VP Harris to give a presser not because it’ll help but because it’s the right thing to do, Margaret Sullivan lays out all the inadequacies of journalists clamoring for one.

[W]hen the vice-president has interacted with reporters in recent weeks, as in a brief “gaggle” during a campaign stop, the questions were silly. Seeking campaign drama rather than substance, they centered on Donald Trump’s attacks or when she was planning to do a press conference. The former president, meanwhile, does talk to reporters, but he lies constantly; NPR tracked 162 lies and distortions in his hour-long press conference last week at Mar-a-Lago.

But Harris needs to overcome these objections and do what’s right.

She is running for the highest office in the nation, perhaps the most powerful perch in the world, and she owes it to every US citizen to be frank and forthcoming about what kind of president she intends to be.

To tell us – in an unscripted, open way – what she stands for.

[snip]

I don’t have a lot of confidence that the broken White House press corps would skillfully elicit the answers to those and other germane questions if given the chance. But Harris should show that she understands that, in a democracy, the press – at least in theory – represents the public, and that the sometimes adversarial relationship between the press and government is foundational.

The Self-Satisfied and Often Wrong Media Frenzy

/250 Comments/in , , /by

Before I make fun of the frenzied mob calling themselves DC journalists, let me point to two of the more responsible reports on Joe Biden’s aging.

One, a WaPo piece with five bylines, describes that in recent months, the President has increasingly exhibited signs of aging — but never so bad as in the debate.

President Biden, who at 81 is the oldest person ever to hold the office, has displayed signs of accelerated aging in recent months, said numerous aides, foreign officials, members of Congress, donors and others who have interacted with Biden over the last 3½ years, noting that he moves more slowly, speaks more softly and has moments when he loses his train of thought more often than even just a year ago.

None of those who spoke to The Washington Post said they had seen Biden appear as lost and confused as he did at the presidential debate against Donald Trump on June 27, where his halting performance sent panic through the Democratic Party. They largely did not question his mental acuity, and several senior White House aides who interact with Biden regularly said that he continues to ask probing, detailed questions about complicated policy matters and can recall facts from previous briefings in minute detail.

It actually draws on fairly neutral sources (diplomatic reporter John Hudson is on the byline) — world leaders and their aides who interacted with him at the G-7, who have no partisan stake but do have a very great stake in the outcome of the election — to substantiate a decline even in the weeks between the G-7 and the debate.

During the Group of Seven nations summit in Italy last month, several European leaders came away stunned at how much older the president seemed from when they had last interacted with him only a year, or in some cases, mere months earlier, several officials familiar with their reactions said. “People were worried about it,” said one person familiar with leaders’ reactions.

[snip]

[D]uring the Group of Seven nations summit in Italy last month, a number of European leaders were struck by Biden’s appearance and demeanor, according to four people who spoke directly with multiple leaders. The general impression among leaders, the people said, was that while Biden appeared capable of carrying out his duties today, they were concerned about how he would be able to serve another four-year term.

[snip]

One person familiar with the conversations among leaders said Italian Prime Minister Giorgia Meloni observed that Biden was “mentally on top of his game” but physically weak, leaving her worried. The person said those concerns became more pronounced after the debate. A spokesman for the Italian Embassy did not provide a comment.

“What has changed the discourse here in Europe is not the G-7. It’s the debate,” the person said.

Note: I seem to be the only one who remembers that this timeline includes, in addition to the pressure and travel associated with the G-7 and the expanded campaign schedule, the prosecution of his son that would never have happened were he not Joe Biden’s son. I seem to be the only one considering how stress exacerbated an aging process already in process.

In any case, this is a story about Biden’s aging accelerating, whether from the stress of your candidacy leading to the felony prosecution of your kid or not.

The same is true of another credible story getting a lot of attention. It’s another multi-byline story (none from NYT’s big names) that includes on the record quotes. But most people have focused on this quote: Perhaps the most senior person, someone with years of direct access, stating that Biden cannot pull off this race.

One senior White House official, however, who has worked with Mr. Biden during his presidency, vice presidency and 2020 campaign, said in an interview on Saturday morning that Mr. Biden should not seek re-election.

After watching Mr. Biden in private, in public and while traveling with him, the official said they no longer believed the president had what it took to campaign in a vigorous way and defeat Donald J. Trump. The official, who insisted on anonymity in order to continue serving, said Mr. Biden had steadily showed more signs of his age in recent months, including speaking more slowly, haltingly and quietly, as well as appearing more fatigued in private.

Here again, though, the story is about a decline in recent months. The story is about stamina and speech, not some undiagnosed source of dementia (or perhaps a disease that people assume leads to dementia symptoms, but doesn’t necessarily).

With that as background, I want to lay out a number of problems with the story the members of the frenzied mob — people rushing to press with stories that are far less responsible than these two (see this must-read post from Jennifer Schulze on some of the worst examples) — are telling:

  1. Even in the face of non-stop coverage about Biden’s age, a core group of particularly nasty types are claiming there was some kind of conspiracy of silence about it, and only they were heroically chasing the topic. That’s objectively false.
  2. To get to that conspiracy, the same types are suggesting that while they never had evidence Biden was this bad in January, that must be because close allies were just covering it up. This more robust reporting of a recent decline at least undermines their claims of having provided the only evidence of a prior decline.
  3. Many participants in this frenzy don’t seem to understand that there are two questions at issue: Whether Biden has the stamina to win the race, whether his fatigue and speech issues put him at a severe disadvantage to Trump or other possible Democratic contenders, and whether he has the stamina to remain President.
  4. Many members of the mob have given little more than fantasy consideration of how Biden would be replaced. That’s unsurprising, given that they gave no more than fantasy consideration of why other solid contenders weren’t challenging Biden and Harris in the primary earlier in the year, when questions about Biden’s age first got louder.
  5. Very few of the mob seem to care whether Biden is doing the job of being President well. Indeed, this is a key source of tension between the mob and Biden. When asked about his age in January and February, he gave two answers: He believed he stood the best chance of beating Trump, a belief significantly undermined by his debate performance and ongoing stamina issues. And, he pointed to his success at being President as proof he could do the job. That was objectively true. Since the mob are little interested in the job of President — or policy generally — they simply ignored his factually correct rebuttal that he was doing a historically good job of being President.

The mob’s complete disinterest in measuring which former President, Joe Biden or Donald Trump, would do better as President makes their wails much easier to dismiss.

So do some of their past errors.

In his interview with George Stephanopoulos, Joe Biden pointed to past predictions of electoral failure.

PRESIDENT JOE BIDEN: That’s not unusual in some states. I carried an awful lotta Democrats last time I ran in 2020. Look, I remember them tellin’ me the same thing in 2020. “I can’t win. The polls show I can’t win.” Remember 2024– 2020, the red wave was coming.

Before the vote, I said, “That’s not gonna happen. We’re gonna win.” We did better in an off-year than almost any incumbent President ever has done. They said in 2023, (STATIC) all the tough (UNINTEL) we’re not gonna win. I went into all those areas and all those– all those districts, and we won.

Biden is right that many of the loudest members of the mob calling for him to drop have been just as loudly wrong in the recent past.

Biden also dismissed a challenge from Mark Warner by noting that Warner had tried to run before.

GEORGE STEPHANOPOULOS: Well, if– I mean, on a more practical level, The Washington Post just reported in the last hour that Senator Mark Warner is– is assembling a group of Senators together to try and convince you to stand down, because they don’t think you can win.

PRESIDENT JOE BIDEN: Well, Mark is a good man. We’ve never had (UNINTEL). He also tried to get the nomination too. Mark’s not– Mark and I have a different perspective. I respect him.

Many many journalists attempted to debunk this claim, apparently unaware that Warner considered running in the 2008 election until I (if you believe Matt Bai, and you should not) singlehandedly chased him out of the race.

Biden’s has a point that the mob has proven badly wrong in the past.

But they’re not wrong that he may not have the stamina to both run for and be President.

Big Media Ignoring the Who What When Why of GOP Apology for Trump’s Crimes

/69 Comments/in , , /by

Even before and especially in the wake of Trump’s guilty verdict, members of the MAGAt Party has stumbled over themselves to declare fealty to Donald Trump, and in the process to demean rule of law.

Chris Hayes described the process as a mob style pressure campaign.

This enforcement action is happening because the Trump people and the Fox people and most of the people in the upper echelons of the party understand: the only way to bring Trump down, to end his political career,  is if Republicans turn against him.

As long as they stay unified, no matter what he does, no matter how abhorrent, or how dangerous, or how criminal, or how vile, no matter how much of a threat he is to the nation, if they all band together, then in a polarized landscape, they can basically keep him afloat and make it essentially a coin toss.

That is why they dressed up like him during the trial and rushed to debase themselves in cringe-inducing fashion on any live TV camera they can find.

[snip]

There have only been two times in Trump’s political career where that dynamic of Republican unanimity has broken, where Trump was near political death.

One was in the aftermath of January 6, the violent assault on the Capitol that he stirred up, when everyone was criticizing him, when the blood was still on the floor of the Capitol including Lindsey Graham and Kevin McCarthy. Remember that? Trump’s approval rating dropped below 40%, about the lowest level it reached. Mitch McConnell was testing the waters for a vote for an impeachment conviction.

If it had not been for that man, Mitch McConnell’s abject, enduringly pathetic cowardice and McCarthy’s relentless quest to have the third shortest speakership in history — not to mention the legitimate fear Republican senators had for their families about violence — we wouldn’t have this issue now. They could have just voted to convict him and bar him from future office. Done.

Ironically enough, the other time — the other sort of near political death experience — was in the wake of the Access Hollywood tape. And just about every elected Republican tried to distance themselves and criticize him. Republican National Committee Chair Reince Priebus was even considering how to get him off of the ticket.

But Trump managed to hold it together, due in no small part to the fact that right at that moment, he got a guy named Michael Cohen, his lawyer, to pay to keep the porn star from talking. And so the Republicans never heard about that story, nor did the public, which could have been the political death blow.

The lesson he learned is if you enforce this totalitarian unanimity, you can keep chugging along.

Journalists not named Chris Hayes are covering this too.

But they’re covering it differently.

Like this 1,400-word story from WaPo yesterday.

It describes that Republicans are backing Trump’s false claims of victimhood. It quotes at least twelve Republicans undermining the verdict, most in inflammatory terms. It even notes, in lukewarm fashion, that Trump’s claims of victimhood have no basis.

But even though it gives ample platform to Bible-thumper Mike Johnson to screech, it doesn’t use the word “porn,” opting instead for “hush money.” It doesn’t use the word “fraud,” opting instead to describe “falsifying business records.”

If you were Martian dropping onto the Earth to learn what the hubbub was about, you would never know that the Speaker who claims to live by the Ten Commandments was running cover for a guy who paid $400,000 to cover up fucking a porn star while his spouse was home with his youngest kid.

This one, also close to 1,400 words, is worse. It doesn’t even mention what crime Trump was convicted of (it links to a piece describing that Trump was, “falsifying business records to conceal alleged affairs.”

Donald Trump — in the form of his University, his charity, his real estate empire, and finally his biological person — has been adjudged a fraudster over and over. Along the way there’s the lady he assaulted in the Bergdorf Goodman dressing room and the porn star he fucked who, he said, reminded him of his oldest daughter.

And almost nowhere, along the way, are journalists asking Republicans — or simply stating as fact — that the entire party has decided to apologize for fraud and fucking porn stars.

The press is giving Republicans a pass for conducting a wholesale assault on rule of law. Republicans are disavowing almost every thing they claim to stand for — and when you throw in the 140 cops assaulted on January 6, it would include everything — and yet the sordid details of what Trump actually did have disappeared.

Trump paid $400,000 to cover up fucking a porn star; he grossed it up to make sure it he’d kill the story in time.

It’s not just that Republicans are enforcing totalitarian unanimity in supporting Trump for fucking a porn star and covering it up. But that din of slavering Republicans debasing themselves to Donald Trump has silenced coverage about what it is Trump was found to have done.

Trump paid $400,000 to cover up fucking a porn star. Make the Bible-thumpers own that when they rush to defend him.

High Court Decision May Pose New Challenges to Julian Assange Prosecution

/14 Comments/in , , /by

The British High Court today issued a ruling provisionally giving Julian Assange permission to appeal his extradition on three grounds. But before he can do that, the US has an opportunity to give assurances on those grounds to address specific concerns.

The court put everything on hold, then, for 55 days to allow that reassurance process to happen.

We adjourn the renewed application for leave to appeal on grounds iv), v) and ix). The adjournment is for a period of 55 days until 20 May 2024, subject to the following directions:

i) The respondents have permission to file any assurances with the court by 16 April 2024.

ii) In the event that no assurances are filed by then, leave to appeal will be granted on grounds iv), v) and ix).

iii) In the event that assurances are filed by 16 April 2024, the parties have permission to file further written submissions on the issue of leave to appeal, in the light of the assurances, such submissions to be filed by the applicant by 30 April 2024, and by the respondent and the Secretary of State by 14 May 2024.

iv) In the event that assurances are filed by 16 April 2024, we will consider the question of leave to appeal at a hearing on 20 May 2024.

One of those three grounds — that he might become eligible for the death penalty — will be easily dispensed with, as the US easily dispenses with similar concerns in terrorism cases.

When I first read the judgment, I assumed the other two issues would be similarly dispensed with easily (and the judges certainly seem inclined to grant extradition if they get appropriate assurances).

The third ground for appeal, after all, pertains to whether Assange will be treated as a defendant like an American would be. And since the Espionage Act doesn’t allow for content-based defenses, Assange would be no worse situated than any other Espionage Act defendant — arguably including Donald Trump (whose 2010 attacks on Assange were one basis for raising concerns about the death penalty).

But the second basis for appeal may be more tricky for the US to issue assurances.

It has to do with whether the First Amendment gives Assange equal protection to what he’d get under Article 10 of the European Convention on Human Rights.

The judges seem inclined to adopt Baraitser’s analysis that, so long as Assange can rely on the First Amendment, it would (and therefore that if the US says he can do so, the extradition can be approved).

However, we agree with the judge that extradition of the applicant would not involve a flagrant denial of his article 10 rights. In summary, that is because:

i) The First Amendment gives strong protection to freedom of expression, which broadly reflects the protection afforded by article 10 of the Convention. On the assumption that the applicant is permitted to rely on the First Amendment, it is not arguable that extradition will give rise to a real risk of a flagrant denial of his article 10 rights.

ii) Counts 1 to 14 and 18 concern conduct which is contrary to the criminal law and which does not directly concern free expression rights. The prosecution of such conduct does not involve a flagrant denial of article 10 of the Convention.

iii) Counts 15, 16 and 17 concern the publication of the names of human intelligence sources. There is a strong public interest in protecting the identities of human intelligence sources, and no countervailing public interest justification for publication has been identified.

iv) There were strong reasons, as the judge found, to conclude that the applicant’s activities did not accord with the “tenets of responsible journalism”.

But as I noted here, that analysis is fine for the extradition question. It’s fine to rule that Assange would get at least the same protections as he would in Europe.

It’s another thing altogether for use in a US courtroom.

That’s because the First Amendment doesn’t include a balancing test of privacy versus public interest present in the ECHR.

Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

This part of the ruling, in particular, would not translate into US law. There is no such privacy balance in the US outside of much weaker defamation laws. And so this part of the ruling does not offer much comfort with regards the existing charges as precedent in the US context.

Whereas in Europe, you have to act like a journalist to get protections as one (which Baraitser said Assange did not, especially not with respect to the three counts of publishing the identities of US and Coalition sources, which had little public interest value to counterweigh the harm he did to those whose names he published), in the US one does not have to adhere to journalistic principles to be protected by the First Amendment.

The US may have real concerns about giving assurances sufficient to meet this particular concern. If they do, Assange would be able to argue that the US was unfairly applying prior restraint to him in a way it doesn’t others — including Cryptome’s John Young, who has repeatedly tried to intervene in Assange’s case in various ways, each time on the basis that he published the State cables without punishment.

All that may be for the best. Faced with such a choice, the US might choose to drop the case entirely (or drop the three most damaging charges, if they are able to do that). I doubt they would drop it entirely, but they could.

They could also pursue the misdemeanor plea the WSJ recently reported, though as reported that seemed like mostly Assange-derived fluff.

Or they could limit the kinds of evidence they use on these charges. One thing that distinguishes Assange from journalists — and from Young — for example, is that prior to publishing all the cables without adequate redaction, he first shared a subset of them with Israel Shamir, who then gave them to (at least) Belarus. At least for the state cables, prosecutors could prove the dissemination charge without relying on publication altogether. Doing so would not only mitigate the damage this precedent would cause, but would get to the real damage that releasing those identities did, willfully giving dictators advance notice to retaliate against US sources before the US could take mitigating measures.

Finally, the might just note that Bartnicki does not apply because Assange allegedly was involved in the theft of the documents in question. Who knows. Depending on what happens with the Project Veritas investigation associated with Ashley Biden’s diary, DOJ might soon have a US citizen being prosecuted in a similar situation.

I imagine the US would have no problem assuring the Brits that Assange would have the same stinky content-based First Amendment rights as other Espionage Act defendants. The question is whether they’d be willing to allow Assange to argue that his prosecution amounted to prior restraint.

Why Reality TV Star Donald Trump Is More Trusted than Most News Outlets

/211 Comments/in , /by

Today, Donald Trump is attending the first day of the fraud trial that he already substantially lost.

Depending on who you believe, he is either attending because he’s using his attendance to delay a deposition in his own lawsuit against Michael Cohen (who will also be a key witness in this fraud trial).

He cited this as his excuse for skipping out on 2 deposition days in his federal case against ex-lawyer Michael Cohen.

If he didn’t show up, he’d be in contempt of court.

Or, he’s using it as a way to affect the outcome — the outcome that was already substantially determined by Judge Engoron’s ruling last week, a ruling addressed in passing, without explaining how he can affect something that has already occurred.

For Mr. Trump, his attendance at trial is far more personal than political, according to a person familiar with his thinking. The former president is enraged by the fraud charges and furious with both the judge and the attorney general. And Mr. Trump, who is a control enthusiast, believes that trials have gone poorly for him when he hasn’t been present, and he hopes to affect the outcome this time, according to the person.

In his courthouse remarks, Mr. Trump lashed out at the judge’s earlier fraud ruling on his property valuations. “I didn’t even put in my best asset, which is the brand,” he said.

I think Trump is attending to spin a judgment that has already been issued as, instead, an outcome he predicted.

Today.

Days after the ruling.

Here’s how it works. On the way into the trial, Reality TV Star Donald Trump made a public statement in which he told his cult followers that the judge that the judge was rogue and the prosecutor was racist. He renewed his claim that Judge Engoron erred by using Palm Beach’s valuation (the one they made in 2011, not in 2021) rather than his boast that Mar-a-Lago is worth a billion dollars.

Few outlets reported that 77-year old Reality TV Star Donald Trump had slurred his words.

No one asked why his spouse hadn’t accompanied him to this trial. (Though this time, one of his co-defendant sons accompanied him to the courthouse.)

Few outlets reported Tish James’ comments about how no one is above the law.

Many outlets were so busy reporting on Reality TV Star Donald Trump’s statements that they didn’t explain that Trump’s Parking Garage Lawyer, Alina Habba, didn’t even try to push for a jury trial, something Judge Engoron confirmed as the trial started.

At least some of the outlets that reported Chris Kise’s arguments about valuation did not explain that those issues were already decided, in a ruling last week.

Most outlets reported that Reality TV Star Donald Trump glared at The Black Woman Prosecutor on his way out for lunch. Some also reported that she laughed that off.

On the way back in the courthouse, Reality TV Star Donald Trump made even more incendiary comments about the judge who already did and will decide his fate. Reality TV Star Donald Trump told his followers that the judge presiding over a trial that might lead him to lose his iconic Trump Tower should be prosecuted and was guilty of election interference.

Many observers clucked that such a stunt would lead the judge — the one who already ruled against Trump — to rule against him.

Trump is going to lose this trial. Know how I know? Judge Engoron already ruled against him!

But most of Trump’s followers don’t know that. Most of Trump’s followers believe that Chris Kise’s comments about valuation were still at issue. Most cult members will see Trump’s comments today — it won’t be hard, because every outlet is carrying them — and remember that before the trial, Trump “predicted” that The Corrupt Judge and The Black Woman Prosecutor would gang up on him.

Reality TV Show Actor Donald Trump used his presence at the trial to create a reality in which he will have correctly predicted a loss that was baked in last week. Because he “predicted” such an outcome, his millions of cult followers will not only treat him as more trustworthy than the journalists playing some role in Trump’s Reality TV Show, cluck-clucking about his attacks on justice without focusing on the fraud and the more fraud and the already adjudged fraud.

Not only will Reality TV Show Actor Donald Trump have “predicted” the outcome, leading his followers to renew their faith in his reliability, but they will implicitly trust his explanation: that he lost the trial not because he is, and has always been, a fraud, but instead because Corrupt Judges and Black Prosecutors continue to gang up on him.

And in the process, Reality TV Show Actor Donald Trump will have continued the big con, the very same fraud of which he has already been adjuged. He will have once again distracted from his own fantasy self-worth and instead led people to report on his golden brand.

When you let Reality TV Show Actor Donald Trump to set the stage, as journalists, you are yet more actors in his Reality TV creation.

It’s not that journalists are bad or biased or corrupt (though some of their editors are). It’s just that Trump already cast them in a role and they’re playing it to a T.

On Judge Aileen M. Cannon

/162 Comments/in , , , /by

The New York Times is out with a long, interesting, piece on SDFL Judge Aileen M. Cannon by Schmidt and Savage. I won’t call it a hit piece, but it is extremely negatively framed, and in some regards disingenuously so. For a news article, there is no way not to view it as a position piece.

“Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.

Judge Cannon, 42, has been on the bench since November 2020, when Mr. Trump gave her a lifetime appointment shortly after he lost re-election. She had not previously served as any kind of judge, and because about 98 percent of federal criminal cases are resolved with plea deals, she has had only a limited opportunity to learn how to preside over a trial.”

That is the opening salvo. Okay, Cannon is a newish federal judge. So what? You take your federal judges as you get them, not as you want them. Criminal trials are not the only trials federal judges do, they also do civil trials. And complicated criminal hearings, including evidentiary ones, pre-trial that most often lead to pleas. The NYT did not delve into that, to any extent it may exist. The fact Cannon has only four criminal jury trials is not shocking in the least. Importuning that she is incompetent because of that is lame.

In Arizona state courts, I have Rule 10 right to notice a change of judge as a right within 10 days of arraignment or assignment of judicial officer.

There is no such availability in federal court. You get what you get. TV lawyer gadabouts like Norm Eisen are shouting that Cannon MUST recuse, and if not Smith must affirmatively move for her disqualification. Based on a ruling in a short civil matter involving Trump previously. Granted her action in that matter was dubious, to be overly kind. But even the hideous 11th Circuit slapped that down, and she complied with the edict. This is a non-starter, and Smith would be an idiot to attempt it. Attempt that and lose, and you almost certainly would, now you really have a problem.

Would Cannon self recuse? There is no evidence of that to date. My friend Scott Greenfield thinks she should for the sake of her career, while acknowledging there is little to no chance of forcing her off like windbags like Eisen clamor for.

I, which rarely happens, disagree with Scott. It would torpedo her career and be a tacit admission she is a right wing nut job incapable of presiding over any partisan issues. That would not be a good look, does not look like a career enhancer in a jurisdiction like SDFL to me.

Back to the NYT article. It reports:

“But the chances appeared low. Under the Southern District of Florida’s practices, a computer in the clerk’s office assigns new cases randomly among judges who sit in the division where the matter arose or a neighboring one — even if the matter relates to a previous case. Nevertheless, Judge Cannon got it.

That is completely contrary to the facts as I understand them. As I have related in comments previously, anybody who took the job seriously enough to check with the clerk’s office, and current status of the SDFL bench could have seen this coming. Not just as a freak chance, but arguably a likelihood. Smith chose to put his eggs in that basket, and did so.

Another portion of the report literally made me roll out of bed and laugh:

“At the same time, they said, she is demonstrably inexperienced and can bristle when her actions are questioned or unexpected issues arise. The lawyers declined to speak publicly because they did not want to be identified criticizing a judge who has a lifetime appointment and before whom they will likely appear again.”

Seriously?? That describes pretty much EVERY federal judge I have been in front of, irrespective of how long they have been on the bench. This is completely silly land.

Here is another one:

“The Trump case is likely to raise myriad complexities that would be challenging for any judge — let alone one who will be essentially learning on the job.

There are expected to be fights, for example, over how classified information can be used as evidence under the Classified Information Procedures Act, a national security law that Judge Cannon has apparently never dealt with before.”

Seriously? There are a LOT of very experienced federal District judges that have never had to meaningfully deal with CIPA at trial. And most of the ones that have are in DC or EDVA. Again Smith chose this locus, he, and we, will have to live with it. So too should the NYT instead of posting up a somewhat dubious and negative filled report.

The Times report goes on to belittle Cannon’s background and qualification to even serve. But Cannon is nowhere near as bad as many of Trump’s appointments. She is a graduate of Duke and then the University of Michigan Law School. She worked for years at Gibson Dunn and as an AUSA. She is fully qualified, even if you think she should not have been nominated. And the NYT citing “ABA” ratings as still being relevant in any regard seems quaint, at best.

Read the NYT article. I am sure it will inflame your passions. But this is federal court, and the law, where not your passions control things. Am I warm and fuzzy about Judge Aileen M. Cannon? No, not whatsoever, but that is irrelevant. Here is where the issue is, for better or worse. Unless Cannon self recuses, that is where it shall remain.

Employer Rupert Murdoch Turned Out to Be a More Important Tucker Carlson “Spy” Than the NSA

/115 Comments/in , , /by

In a piece that I otherwise find unpersuasive, Josh Marshall argued that the reports that Fox News President Suzanne Scott didn’t tell Tucker why he was being fired explain why we’re getting such a conflicting range of explanations for his summary shit-canning.

It’s been reported that Suzanne Scott, CEO of Fox News, didn’t tell Carlson why he was being fired when she gave him the news. If that’s true, that pushes me more to consider this possibility. It also might explain why you have all this miscellany of often contradictory theories and explanations about what “contributed” to the decision. Maybe no one at Fox has any idea and all the sources are basically speculating about possible vulnerabilities they believe must be the answer.

Axios reported that Scott made the decision with Lachlan Murdoch to fire Tucker Carlson Friday night, though other outlets more credibly report that Rupert was also personally involved.

Fox surely anticipated that Tucker would sue, which may be why Scott didn’t give Tucker an explanation for his firing, yet. But that has created a void of uncertainty about the firing.

It is true that Abby Grossberg, the former Tucker producer who has sued Fox in SDNY for the hostile work environment at Fox generally and specifically on Tucker’s show, and sued Fox in Delaware for how they dealt with her testimony in the Dominion case, has an incentive to emphasize her role in the firing (as she has). I agree with Opening Arguments that the DE suit is far more likely to be related (a paragraph from her SDNY suit that has attracted attention, in which Tucker seemingly speaks favorably about statutory rape, is not tied to her own complaints and was already public). But I also think that the DE suit also includes a bunch of stuff designed to leverage Fox’s legal exposure that has nothing to do with the actual complaint. Plus, Tucker has little to do with the main thrust of the complaint; Scott and other corporate people do, so firing Tucker won’t help. Also note, as far as I understand it, the recordings Grossberg referred to in her suit seem to be transcribed interviews not otherwise aired on TV, not private recordings of Tucker.

Of note, the claim that Tucker asked but Grossberg was unable to get a Proud Boy lawyer to claim the insurrection was caused by FBI informants, for example, makes no sense.

Upon information and belief, in early-March 2023, Mr. Carlson attempted to spin and manufacture another false narrative to defray blame from Fox News about the January 6th insurrection, this time, characterizing the Capitol attack as an FBI coup, and not the logical result of Fox News’s reckless 2020 election fraud coverage. Specifically, Mr. Carlson requested that his team investigate the ongoing Proud Boys trial, which he asserted was “taking forever” because the “Biden Administration [wa]s trying to hide the huge number of FBI spies it had placed in the group.” As Head of Booking, Ms. Grossberg was twice directed to reach out to Dan Hull, one of the defense attorneys representing the Proud Boys, who indicated to her that he was available to come on to the TCT show as a guest but emphatically denied Mr. Carlson’s theory. Instead, Mr. Hull insisted that “no one made my client go up the hill. The Proud Boys wanted to,” and the FBI angle Mr. Carlson sought to peddle was “on the conspiracy side.” When Ms. Grossberg relayed Mr. Hull’s message to Tom Fox, a Senior Producer for TCT and her superior, he blithely replied “That doesn’t fit with what Tucker is looking for. You’ll have to find someone else who will say that.” Ms. Grossberg was told to ask Mr. Hull yet again if he would reconsider, to which Mr. Hull replied, “Please just tell [Tucker], if I get on the show, I will walk out if he asks about the FBI setting it up. […] Blaming the FBI for Jan 6th doesn’t cut it.” Mr. Carlson then requested that Ms. Grossberg investigate whether any other defense attorneys, including Steven Metcalf, would tout the conspiracy on air.

Dominic Pezzola lawyer Roger Roots seems to have, as a primary purpose, floating the kinds of conspiracy theories that will attract attention on Tucker’s show or Jim Jordan’s committee. And in his closing arguments, Nick Smith made wild leaps to push the informant angle. So the lawyers willing to make these claims were certainly available (if unwilling to risk a gag order by going on TV). Plus, Tucker’s propaganda about January 6 long predated the Dominion exposure

But Grossberg’s claim might be where this claim, from the LAT, came from (which has, in turn, led to the improbable claim that Epps’ complaints about Tucker’s coverage played a key role).

Murdoch also was said to be concerned about Carlson’s coverage of the Jan. 6, 2021, insurrection at the U.S. Capitol. The host has promoted the conspiracy theory that it was provoked by government agents, and Carlson has called Ray Epps — an Arizona man who participated in the storming of the Capitol but did not enter the building — an FBI plant, without presenting any evidence.

Tucker’s conspiracy theories about January 6 have been far more unhinged than anything Fox has been sued for by a voting machine company, and that’s saying something. But, again, they’re not a recent development — back in June 2021, Tucker defamed Thomas Caldwell’s spouse Sharon based off an unsubstantiated conspiracy theory.

All of which leads me to suspect that this, also from Axios, may best explain what brought Fox to firing Tucker.

A slew of material was uncovered during pre-trial discovery that implicated Carlson. More information could be out there that could be legally damaging for Fox as it stares down more defamation cases.

None of the rest of Axios’ explanations make sense (as Grossberg’s DE suit does, Axios lists stuff that would not implicate Tucker personally). Many of the other public explanations make no sense.

But what does seem plausible is that between Dominion, Smartmatic, and Grossberg’s twin suits, Fox lawyers have spent a lot of time reading through digital records of Tucker’s statements. And — again, it seems plausible — one or many of the things they’ve seen there made it clear Fox could no longer sustain the legal exposure Tucker (and his Executive Producer Justin Wells, who was also shit-canned) represented, possibly even for reasons unrelated to any of the lawsuits.

There’s an irony here.

Back when Tucker first revealed that he had been picked up in NSA intercepts of texts and emails he exchanged with Russian go-betweens, he claimed the NSA was trying to take him off the air. That was in 2021, and his FOIA to the NSA suggested the contacts had gone back to January 2019. In his more recent March complaint that his efforts to cozy up to Putin got “spied on” by the NSA, he revealed the NSA had read his Signal texts, as well as the emails he sent purportedly setting up an interview with Putin.

For all his wailing that the NSA’s access to such comms was an attempt to get him fired, it didn’t happen.

But once Rupert’s lawyers reviewed Tucker’s communications, it did.

I’m not arguing that Tucker’s coziness with Putin got him fired (though Glenn Greenwald keeps complaining, in two languages, that Tucker was fired for falsely claiming that members of the African People’s Socialist Party were arrested because of their opposition to the Ukraine war, rather than because they were on the FSB payroll).

I’m stating a truism. In virtually all cases, “surveillance” of your communications by your employer can have a far more immediate and lasting impact than surveillance of your communications by the NSA.

Update: Daily Beast says the final straw was the number of times he called Sidney Powell the c-word.

Update: In comments, wasD4v1d referenced this Aaron Blake piece making a similar point.

Update: Murdoch property WSJ reports that one of the big factors was the disparaging comments Tucker made about others.

On Monday, Mr. Carlson’s famously combative stance toward members of Fox News management and other colleagues caught up with him, as the network abruptly announced it was parting ways with him, just minutes after informing Mr. Carlson of the change.

The private messages in which Mr. Carlson showed disregard for management and colleagues were a major factor in that decision, according to other people familiar with the matter. Although many portions of the Dominion court documents are redacted, there is concern among Fox Corp. executives that if the redacted material were to become public, it would lead to further embarrassment for the network and parent company.

[snip]

The Dominion court filings are filled with examples of him disparaging colleagues, from calling for the firing of Fox News reporter Jacqui Heinrich for fact-checking Mr. Trump’s false claims about the 2020 election to complaining about the network’s news coverage, including the decision to call Arizona for Mr. Biden on election night.

Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

/22 Comments/in , , /by

I really hope that after this and one more post on CJR’s series performing “Russiagate,” I’ll be done for good. CJR is not going to correct, much less retract, a piece that makes clear errors and relies on an undisclosed Russian intelligence product. So all that’s left is to describe what CJR might have done — as editor Kyle Pope has said was his goal — to say something new about the journalism on the Russian investigation, which I’ll do in a follow-up.

But Jeff Gerth said something in last week’s Zoom conference that revealed a(nother) serious cognitive problem with his project. [Since CJR did not record the event, Dan Froomkin downloaded the closed captions to provide an approximation, which I’ve posted here.] When invited to address any question that the moderator, Berkeley School of Journalism Dean, Geeta Anand, had not asked, Gerth addressed why he (claimed to) focus so closely on the NYT.

[Jeff Gerth] 14:03:21
Well, I wanted to address a question that I’ve been asked quite a bit that didn’t come up here, which is why I focused so much on the New York Times.

[Jeff Gerth] 14:03:34
And so my answer to that question is threefold.

[Jeff Gerth] 14:03:39
One. It’s the most influential. No widely read news outlet.

[Jeff Gerth] 14:03:46
Certainly in America, perhaps in the World number 2. It’s the only news organization whose coverage of the Trump Russia matter was repeatedly criticized by the FBI in internal documents that later became public.

[Jeff Gerth] 14:04:11
And obviously, if other news organizations have been criticized by the FBI in documents, I would have reported on that as well.

[Jeff Gerth] 14:04:20
But the New York Times stood out. That regard. So that’s a second reason.

[Jeff Gerth] 14:04:26
And the third reason is, that the times provided a valuable window into their editorial and repertory decision making by allowing a filmmaker into the newsroom for a year and a half, and then you know the fruits of it became a 4 part series that aired in 2

[Jeff Gerth] 14:04:50
1,018, and so that offered invaluable.

[Jeff Gerth] 14:04:57
Raw material for any journalist. Looking at at this story, and a lot of the documentarians work feature.

[Jeff Gerth] 14:05:09
The stories that I was interested in, as well as the stories that the FBI was internally being quite critical of, as well.

[Jeff Gerth] 14:05:19
So those those are the the main reasons why there’s so much in the piece about the New York Times. [my emphasis]

Now, as I have shown, Gerth actually didn’t focus on the NYT. His main villains — those who chased the Steele dossier — published elsewhere. And he ignored almost all of NYT’s Pulitzer winning coverage of Russia. He ignored a September 2016 story revealing how often Julian Assange’s Wikileaks releases served Russia’s political interests. He ignored a December 2016 epic that described the Russian hack-and-leak from the DNC perspective, one that completely debunks Gerth’s claims that the hack-and-leak had limited impact on Hillary’s campaign. He ignored other 2016 Pulitzer-winning stories — on Russia hunting down its enemies in other countries, Russia’s use of disinformation, the elite hackers Russia was recruiting, and Russia’s cultivation of the far right — that show the framework with which NYT’s editors came to their 2017 coverage. He ignored a 2017 report on the Russian contacts that Jared Kushner omitted from his application for clearance. He ignored a 2017 report that Trump knew Mike Flynn had been an unregistered agent for Turkey before Trump appointed him to be National Security Adviser. He may or may not have ignored a 2017 story on how Trump bragged to Sergey Lavrov that he fired Jim Comey to end the Russian investigation, but if he mentioned it, he ignored the Comey part, which undermined Gerth’s own wildly generous interpretation of Trump’s related comments to Lester Holt. Gerth included two (one, two) of three stories on the June 9 meeting, but not the one revealing that Trump had drafted Don Jr’s false statement about the meeting. That’s particularly problematic given that Gerth’s treatment of an interview NYT did with Trump (the only story linked in this paragraph that wasn’t part of NYT’s two Pulitzer winning packages) focused on the dossier and not the discussion Trump had with Putin about the topic he used for his cover story about the June 9 meeting.

This would have been a very different series had Gerth really focused on the NYT, as he claims to think he did.

But something Gerth said really surprised me. A key to his purported reason to (claim to) focus on the NYT is that, he describes, the FBI “criticized” NYT’s coverage. NYT was, “the only news organization whose coverage of the Trump Russia matter was repeatedly criticized by the FBI in internal documents that later became public,” Gerth said. The documentary The Fourth Estate focused on, “the stories that the FBI was internally being quite critical of,” Gerth claimed.

He even asserted that the NYT was the only outlet on whose coverage the FBI was closely focused. “If other news organizations have been criticized by the FBI in documents, I would have reported on that as well.” That claim would be quite a shock to Andy McCabe, whose focus on the WSJ coverage of the Clinton Foundation showed up in two DOJ IG Reports and provided the bogus excuse for his firing. And if Gerth had covered the Mike Flynn case with any level of attention, he would also know that the FBI launched an investigation into some of Sara Carter’s inaccurate reporting, which had been fed to her by Senate Judiciary Committee staffer Barbara Ledeen. Bizarrely, in his coverage of the dossier, Gerth made no mention of the sustained FBI discussions of the September 2016 Michael Isikoff story based on Christopher Steele’s reporting, even though they appear in the DOJ IG Report on the Carter Page FISAs; he discussed the Isikoff story at length, but not the FBI effort to confirm whether Steele or Glenn Simpson was Isikoff’s source.

Gerth doesn’t even account for all the discussions of news coverage in Peter Strzok’s texts, though one such text appears to be one of the two instances of “criticism” of the NYT he speaks of.

My own coverage of Strzok’s sustained attention to such stories — as well as Mueller’s attempts to track how investigative subjects worked the press, including Konstantin Kilimnik — is what made Gerth’s claims so confusing to me.

It led me to suspect Gerth totally misunderstood the purpose of Strzok’s annotation, and thereby saw it as something different than the attempts to stave off clear errors in Devlin Barrett or Sara Carter’s reporting, the woefully belated effort to attribute the Yahoo reporting, to say nothing of efforts to learn how Roger Stone and Kilimnik were planting false stories as part of their attempts to cover their tracks.

The FBI has no business in doing press criticism (though it does attempt to correct dangerously incorrect reporting). It does, however, have reason to track classified or investigative leaks and public claims made by subjects of their investigation. Which is what the reams full of records on Strzok’s work show him doing.

In my own coverage of the Strzok annotation on which Gerth hangs most of his claim of FBI criticism of the NYT, I surmised that it arose out of his focus on leaks. Some of it clearly seems to reflect concern that the NSA might be not be turning over everything it had found. And Strzok’s observation that the NYT falsely believed an investigation into Stone had already been opened may have come in handy nine months later, when they learned from Ann Donaldson that Richard Burr had provided Don McGahn that same false information just weeks later. Indeed, the identification of a common false belief shared by the NYT and SSCI’s Chair might explain why DOJ refused to share the most sensitive details of the Russian investigation with the committee.

I asked Strzok why he had done the annotation. He explained: “Critique played no role — nobody’s got time for that. My purpose was to figure out who’s talking and whether they had info they weren’t sharing with us and/or whether they were leaking to shape the public political narrative.”

In other words, it was perfectly consistent with all the other known efforts by the FBI to track public reports on ongoing investigations. It was an effort to understand what partners and subjects of the investigation were sharing with reliable journalists. And while the annotation shows two clearly incorrect beliefs on the part of the NYT — that an investigation into Stone had already been opened and that the FBI specifically already had call record returns on Trump’s associates — many of the other observations could have multiple explanations, including that the NYT learned of ties, later confirmed, between Trump’s people and Russian spooks before the FBI did. If that’s the explanation, NYT should be lauded, not criticized.

Those stories in which NYT was so far ahead of the FBI are absolutely ripe for review. I don’t fault Gerth’s focus on them; I fault his silence and at times misrepresentation about the rest of NYT’s coverage. But if you’re going to look at those four stories (one, two. three, four) alleging many ties between Trump and Russia — if you’re going to imagine you’re anchoring an entire 23,000 word piece on the NYT based on the FBI attention to several of those stories — you need, first, to understand what you’re looking at.

Gerth imagined he was looking at the FBI doing media criticism. In a sense, he may have been right. What distinguishes Strzok’s apparent effort to understand an outlier NYT story from Gerth’s attempt to understand the Russia coverage is that Strzok had a better handle on the known facts and he tried to understand why reports deviated from those known facts.

Gerth, over and over, simply imposed his own conclusions onto the things that he saw.

LINKS

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

/31 Comments/in , , /by

On Tuesday, Columbia Journalism Review quietly staged the Zoom conference intended to address the many problems with Jeff Gerth’s series on “Russiagate” [sic], which I wrote about in a long series. After they rescheduled the original date because of an illness, they did not alert those who had previously signed up, meaning a number of people missed it. Nor did they record the event. It had the feel of a formality designed to claim they had listened, without actually doing so.

Nothing demonstrates the inadequacy of the event so well as the fact that no one — not moderator and Berkeley School of Journalism Dean Geeta Anand, not Columbia Journalism School Dean Jelani Cobb, and not CJR Editor Kyle Pope — addressed the fact that Jeff Gerth had cited an unreliable Russian intelligence product as part of his attack on Hillary Clinton without informing readers he had done so.

I described that he had done so in this post, but I’m going to try to simplify this still further in hopes Columbia will understand how inexcusable this is — how badly this violates every tenet of ethical journalism.

As part of his description of Hillary’s response to being victimized in a hack-and-leak campaign, Gerth described that Clinton approved a plan to vilify Trump by making Russian interference itself a scandal.

The disclosures, while not helpful to Clinton, energized the promotion of the Russia narrative to the media by her aides and Fusion investigators. On July 24, Robby Mook, Hillary’s campaign manager, told CNN and ABC that Trump himself had “changed the platform” to become “more pro-Russian” and that the hack and dump “was done by the Russians for the purpose of helping Donald Trump,” according to unnamed “experts.”

Still, the campaign’s effort “did not succeed,” campaign spokeswoman Jennifer Palmieri would write in the Washington Post the next year. So, on July 26, the campaign allegedly upped the ante. Behind the scenes, Clinton was said to have approved a “proposal from one of her foreign-policy advisers to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” according to notes, declassified in 2020, of a briefing CIA director John Brennan gave President Obama a few days later. [my emphasis]

The claim is a central part of Gerth’s narrative, which adopts many of the theories John Durham floated in his two failed prosecutions, suggesting that the press’ concerns about Trump and Russia stemmed exclusively from efforts — the dossier and the Alfa Bank anomaly — generated by Hillary, and not by Carter Page’s weird behavior in Moscow, Paul Manafort’s ties to oligarchs with ties to Russia, or all the lies Trump’s people told in 2017 about their own ties to Russia.

The claim is a central part of Jeff Gerth’s narrative, and it is based on a Russian intelligence product of uncertain reliability.

These are the notes of Brennan’s briefing to Obama. Here, though not in an earlier part of this section, Gerth quotes directly from the notes (though Gerth cuts the words “alleged approval”).

This is the letter John Ratcliffe wrote to Lindsey Graham about the briefing before he declassified the notes themselves. The letter quotes the notes and unlike Gerth, he does not cut the words, “alleged approval,” so there can be no doubt that that’s what Ratcliffe was addressing. Ratcliffe’s letter explicitly says that the Intelligence Community “does not know the accuracy of the allegation” or whether it was “exaggeration or fabrication.”

  • In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S. Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee. The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.
  • According to his handwritten notes, former Central Intelligence Agency Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

It’s bad enough that Gerth takes out the use of “alleged” included in the notes itself and in Ratcliffe’s description of the report.

But it is inexcusable that Gerth does not tell readers this claim comes from a Russian intelligence report, one that even John Ratcliffe warned might not be reliable, might even be a fabrication! Gerth describes that “Clinton was said” to have formulated this plan, without telling readers that Russian spooks were the ones who said it. He simply adopts the accusation made by Russian spies without notice he had done so.

Before writing this up, I asked Kyle Pope about this twice, first in my general list of questions, then in a specific follow-up.

Finally, you did not answer this question.

Do you believe your treatment of the John Brennan briefing should have revealed the briefing was based on a Russian intelligence document? Do you believe you should have noted the John Ratcliffe warning that, “The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication”? Is there a reason you’re certain the date was July 26 when it’s not clear whether it says 26 or 28?

Is it your view that CJR owes its readers neither notice that it is relying on a Russian intelligence report for its interpretations about Hillary Clinton’s motives nor reveal that the IC would not vouch for the accuracy of that report?

I got no answer. Since Tuesday’s event, I’ve since asked for comment from Dean Cobb, who provided no response, as well as Dean Anand (whose assistant said she may get back to me later).

Jeff Gerth, and through him, CJR, and through CJR, the Columbia Journalism School apparently believe it is sound journalism, in a piece that demands greater transparency from others commenting on sloppy reporting about Russia’s campaign to interfere in the 2016 election, to quote from a description of a Russian intelligence report that may have been part of that campaign to interfere in the 2016 election, without disclosing that he was doing so.

There are unretracted clear errors throughout Gerth’s piece that also went unremarked in Tuesday’s event; rather than explaining why those errors remain uncorrected in a piece complaining about the errors of others, Gerth twice claimed his was a, “very factual chronological story” with no pushback. When I asked about them before doing my piece, Pope dismissed those errors as merely a matter of opinion.

But about this undisclosed use of a Russian intelligence product that could be a fabrication, there is no dispute. It’s right there in the warning Ratcliffe gave before he released the notes. “The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.” But that didn’t stop Gerth from using it. He used it anyway, with no disclosure about who made this allegation or the IC warning about its uncertain reliability.

And Columbia University’s journalism establishment stubbornly stands by that non-disclosure.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR