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

Jeff Gerth began his series on the press’ Russia investigation failures by noting that trust in the traditional media collapsed after the 2016 election (a claim based on a statistical error), with a sharp rise in concern about “fake news” and, according to Rasmussen, half of those surveyed thinking the press was the enemy of the people.

Before the 2016 election, most Americans trusted the traditional media and the trend was positive, according to the Edelman Trust Barometer. The phrase “fake news” was limited to a few reporters and a newly organized social media watchdog. The idea that the media were “enemies of the American people” was voiced only once, just before the election on an obscure podcast, and not by Trump, according to a Nexis search.

Today, the US media has the lowest credibility—26 percent—among forty-six nations, according to a 2022 study by the Reuters Institute for the Study of Journalism. In 2021, 83 percent of Americans saw “fake news” as a “problem,” and 56 percent—mostly Republicans and independents—agreed that the media were “truly the enemy of the American people,” according to Rasmussen Reports.

Gerth believes part of the problem stems from an erosion of journalistic norms, which he listed at length in an afterward, starting with the press’ unwillingness to report facts that run counter to the prevailing narrative.

My main conclusion is that journalism’s primary missions, informing the public and holding powerful interests accountable, have been undermined by the erosion of journalistic norms and the media’s own lack of transparency about its work. This combination adds to people’s distrust about the media and exacerbates frayed political and social differences.

One traditional journalistic standard that wasn’t always followed in the Trump-Russia coverage is the need to report facts that run counter to the prevailing narrative.

And in spite of his citation of WaPo’s tracking of the vast number of lies Donald Trump told during his term early in the series, Gerth put great stock in what Donald Trump told him in two interviews, adopting Trump’s attribution of the coverage of Russia for the reality TV star’s decision to start labeling the media, “fake news.”

He made clear that in the early weeks of 2017, after initially hoping to “get along” with the press, he found himself inundated by a wave of Russia-related stories. He then realized that surviving, if not combating, the media was an integral part of his job.

“I realized early on I had two jobs,” he said. “The first was to run the country, and the second was survival. I had to survive: the stories were unbelievably fake.”

This is a critical point: Gerth appears to believe Trump that called the media “fake news” not as part of an effort to manipulate the media or to damage one of the institutions of accountability that might check his power, but instead as part of a good faith response to coverage of him.

From that premise, CJR decided the way to understand the collapse in trust of the media was to focus largely on NYT and WaPo’s performance in their coverage of Russia. 

CJR editor Kyle Pope told me,

What we wanted to do with this piece was focus entirely on the media coverage, without the usual notes about Trump’s failings. Specifically, we wanted to focus largely on the New York Times and the Washington Post, as important leaders of the coverage. This was not intended as a 360-degree roundup of everything written about Trump and Russia.

There are obviously enormous problems with the conception of this project, particularly with media polarization in the US that looks like this (a source Gerth relied on to assess the problem).

Others engaged in the “Russiagate” project correctly recognize the import of cable news in the equation (though most, like Glenn Greenwald, ignore the power of the self-contained bubble around Fox, which doesn’t even attempt to hold itself to standards of truth). In 23,000 words, for example, Gerth never considers whether Fox’s scandalous Seth Rich coverage fostered distrust of the media.

In his series, Gerth spent a great deal of time questioning claims about the impact of Russia’s social media operation in 2016 (which, like many “Russiagate” analysts, he treats as the only possible means by which Russia influenced the election). But he didn’t consider the impact of social media, generally, on this decline in trust, not even in the vast reaches of America where there is no more local news, where news consumers increasingly rely on information fed by algorithms that reward the most inflammatory information, from whatever source.

So even on its own terms, it’s a project designed to fail, because it ignores centrally important parts of the equation.

Worse still, Gerth didn’t even carry out what he claimed to set out to do.

That’s actually one of the reasons I’ve spent so much time dissecting his effort: because the ways in which he claimed to limit his scope, and his deviation from that scope, is itself very telling.

Gerth shows how little WaPo and NYT chased the dossier

Start with his focus on the Steele dossier. The dossier is mentioned or discussed in paragraphs making up over 5,000 words out of Gerth’s 23,000-word series. That’s consistent with the “Russiagate” project, which often treats the dossier as stand-in for the entire Russian investigation (or, here, the coverage of it).

Even regarding the Steele dossier, Gerth’s own summary of their coverage  makes it clear that the NYT and WaPo aren’t the villains of the dossier story. The villains in his account are Michael Isikoff, David Corn, CNN, BuzzFeed, McClatchy, and Jane Mayer.

Gerth struggled to implicate NYT and WaPo in his dossier complaint. He noted that NYT mentioned it, including FBI’s efforts to reach out to its sources, in a February 14, 2017 article he spends  almost 1,000 words attacking.

In the article’s discussion of the dossier, it described Steele as having “a credible track record” and noted the FBI had recently contacted “some” of Steele’s “sources.” Actually, the FBI had recently interviewed Steele’s “primary” source, a Russian working at a Washington think tank, who told them Steele’s reporting was “misstated or exaggerated” and the Russian’s own information was based on “rumor and speculation,” according to notes of the interview released later. The day the Times piece appeared in print, Strzok emailed colleagues and reported that Steele “may not be in a position to judge the reliability” of his network of sources, according to Justice Department documents released in 2020.

But as I note below, the dossier is in no way Gerth’s primary complaint with this article and others in a series of similar reports from NYT.

Gerth also included the dossier in a critique of NYT’s reporting on the Nunes Memo.

At the Times, the coverage of the GOP memo was skeptical while a dueling memo, a few weeks later from the ranking Democrat on the committee, was portrayed more favorably.

The Times, at the start of the piece about the Republican memo, called it “politically charged”; noted, in the next sentence, how it “outraged Democrats”; and did not quote the memo’s allegation of the dossier’s “essential” role in the surveillance. The same day, in a separate piece, the Times again called the GOP memo “politically charged” and quoted the “scathing” criticism by Democrats.

Later that month, the Democrats released their own memo. It said the surveillance warrant “made only narrow use of information from Steele’s sources.” The Times story called it a “forceful rebuttal” to Trump’s complaints about the FBI’s inquiry. In the end, the allegations of abuse by Nunes were confirmed in 2019 when the Inspector General released a report that was a “scathing critique” of the FBI, as the Times told readers at the time.

In a statement to CJR, the Times said: “We stand behind the publication of this story,” referring to its reporting on the Nunes memo.

In doing so, he overstates the extent to which the DOJ IG Report on Carter Page, “confirmed” Nunes’ claims. As I noted in a claim-by-claim assessment after the release of the report, both memos got things wrong and both got things right, and Democrats were right that the dossier was not part of the predication of the Russian investigation. Mostly, though, they were just talking past each other, a problem exacerbated by the secrecy behind which both sides could hide their arguments.

Gerth found a little more to work with in the WaPo.

He made much of the fact that one journalist on a long (and accurate) piece about Trump’s ties to Russia was friends with Glenn Simpson, one of the founders of Fusion GPS, via which the Democrats paid for the Steele dossier.

The lead author of the story, Tom Hamburger, was a former Wall Street Journal reporter who had worked with Simpson; the two were friends, according to Simpson’s book. By 2022, emails between the two from the summer of 2016 surfaced in court records, showing their frequent interactions on Trump-related matters. Hamburger, who recently retired from the Post, declined to comment. The Post also declined to comment on Hamburger’s ties to Fusion.

Here was a tie, Gerth insinuated, that proved journalism collapsed in the face of Hillary’s attempts to push oppo research.

But 1,500 words later in Gerth’s series, he showed that Hamburger pushed back on Fusion tips like the Carter Page one when he couldn’t substantiate them.

[S]ome reporters, aware of the dossier’s Page allegations, had pursued them, but no one had published the details. Hamburger, of the Washington Post, told Simpson the Page allegations were found to be “bullshit” and “impossible” by the paper’s Moscow correspondent, according to court records.

That’s important background to Gerth’s coverage of WaPo’s 2017 story on Sergei Millian

The Post landed a long story about Sergei Millian, a Belarusian-American businessman, on March 29. The top of the piece identified Millian as the source behind the dossier’s most serious allegation, a “well-developed conspiracy” between the Trump campaign and the Kremlin, the same ground covered by the Wall Street Journal and ABC in January. The claim that Millian was a key informant whose information was “central to the dossier” was stated without any attribution or sourcing. In 2021 the Post retracted the parts of the story describing Millian as a dossier source after John Durham, a special counsel looking into the origins of the Trump-Russia investigations, indicted Steele’s main source for lying to the FBI. Durham alleged the fact of Millian being a source had been “fabricated.” The Post editor’s note explained that Durham’s indictment “contradicted” information in the March story, and additional reporting in 2021 further “undermined” the account. The Post also deleted parts of a few other stories that repeated the allegation that Millian was a dossier source.

WaPo retracted much of the story after the Danchenko indictment, with this editor’s note:

The original version of this article published on March 29, 2017, said that Sergei Millian was a source for parts of a dossier of unverified allegations against Donald Trump. That account has been contradicted by allegations contained in a federal indictment filed in November 2021 and undermined by further reporting by The Washington Post. As a result, portions of the story and an accompanying video have been removed and the headline has been changed.

The original account was based on two people who spoke on the condition of anonymity to provide sensitive information. One of those people now says the new information “puts in grave doubt that Millian” was a source for parts of the dossier. The other declined to comment.

WaPo’s retraction (like the CNN “reckoning” which Gerth cites approvingly) were themselves problematic, because (as I noted about the CNN piece) they took John Durham’s false statements indictment against Steele’s primary subsource, Igor Danchenko, insinuating — but falling far short of charging — a conspiracy as a source of fact. Worse still, the indictment was obviously problematic. In it, Durham relied on Millian’s claims, made on social media but not to a grand jury, for a key part of his case. After Millian refused to testify at trial, Durham admitted he had little but hearsay to prove his case. 

And as Danchenko attorney Stuart Sears noted at trial, several of Millian’s communications, in which Millian boasted about his ties to Trump, were consistent with Danchenko’s claims about the call he attributed to Millian.

It’s entirely possible it wasn’t Sergei Millian, but even if it was, the caller only said there was coordination between the campaign and Russia and that there was nothing bad about it. Agent Helson told you that. That’s not anti-Trump, and we do know from the government’s own evidence that Millian was at least telling people he was going to meet with Trump campaign people the week before the phone call, the anonymous phone call. 

Gerth cheered retractions based off an indictment alone over three months after a jury acquitted Danchenko of lying about this call, which he told the FBI he believed, but was not certain, came from Millian. 

And Gerth, who complains about transparency, buried that fact: while Gerth emphasized the WaPo and CNN retractions in Part Two of his series, he didn’t get around to informing readers that Igor Danchenko had been acquitted until Part Four, over 9,000 words and two clicks later.

Gerth elsewhere noted that Mueller’s indictments against Yevgeniy Prigozhin and the GRU hackers haven’t been tried, yet when it served his narrative, he applauded these retractions based on an indictment alone.

Meanwhile, Gerth credited WaPo with breaking the news that the Democrats had funded the dossier, which is ample proof that the WaPo wasn’t shielding the project.

Amazingly, Gerth complained that the NYT didn’t retract anything in the wake of the Danchenko indictment, even though he found so little to complain about in the NYT coverage of the dossier and even though, as he describes, WaPo’s Erik Wemple (who might consider whether his own campaign for dossier accountability went too far, in light of the Danchenko acquittal) called out NYT’s Adam Goldman as one of those who approached the dossier responsibly. Gerth even noted that the NYT acknowledged the flimsiness of the dossier’s allegations in real time.

The Times has offered no such retraction, though the paper and other news organizations were quick to highlight the lack of firsthand evidence for many of the dossier’s substantive allegations;

It’s genuinely not clear what Gerth thinks the NYT should retract, a question I posed to Pope that he declined to answer.

And Gerth makes this complaint even though his series was published four days after NYT’s bombshell report of how corrupt the Durham investigation was. Somehow CJR didn’t find time to remove or amend Gerth’s complaints about NYT’s critical reporting on the Durham investigation, including his complaint that Goldman suggested a junket Barr and Durham took to Italy might be chasing a “conspiracy theory,” when the recent NYT report has revealed it was far worse. 

There are other grave problems with Gerth’s treatment of the dossier, all consistent with the ”Russiagate” project more generally. The DOJ IG Report Gerth relies on so heavily laid out abundant reason to suspect that Russia larded the dossier with disinformation, probably with the participation of Manafort associate Oleg Deripaska.

That’s important given the fragments of truth that appear in the dossier. As Durham briefly acknowledged at trial and as I noted in an interview hosted by CJR, the reason Danchenko’s ties to Clinton ally Chuck Dolan were so significant, and led Durham to charge Danchenko for making a “literally true” statement about Dolan to the FBI, was that Dolan established ties between Olga Galkina — the source of the most problematic claims in the dossier, alleging Michael Cohen spoke directly with the Kremlin about election interference — and Dmitri Peskov. The link raises the possibility that someone who knew about Michael Cohen’s January 2016 call to the Kremlin, to Peskov’s office, a call both Cohen and Trump lied to conceal, was behind the dossier allegation that falsely claimed Cohen had other contacts with the Kremlin. Peskov knew that Cohen and Trump were lying to hide that earlier contact, which made the later false allegation more powerful.

Other records show that Russia likely used Steele for a functional role in their operation. In spring 2016, Deripaska is believed to have been the client who hired Steele for intelligence collection targeting Paul Manafort. Then Deripaska used Steele as part of a brutal double game with Manafort. Essentially, Deripaska used the former British spy’s association with the FBI to increase Manafort’s legal vulnerability while he had Kilimnik exploit Manafort’s financial vulnerability, all of which made it easier to obtain inside information on the Trump campaign at the August 2 meeting. 

And, in a story about the dossier that Gerth doesn’t mention, Manafort came back from what we now know to be a meeting with a Deripaska associate and told Reince Priebus to focus on the dossier’s inaccuracies as pushback on the Russian investigation. That is, the focus on the dossier as a substitute for Trump’s real Russian ties seems to have become part of Russia’s plan, if it wasn’t from the start. If the dossier was deliberate disinformation — and the Republican members of Congress who investigated that document insist it was — then it must be considered part of Russia’s attack on US democracy –  in which Gerth and other “Russiagate” participants are enthusiastic participants.

Polarization and trust in the media lie at the center of Gerth’s project. Yet he failed to consider how the dossier, not the coverage of it, might be a key driving factor in polarization. That makes his project part of the problem.

Gerth’s selective coverage of NYT and WaPo’s Pulitzer-winning journalism

Even while Gerth failed to significantly implicate NYT and WaPo in what he portrays as the gravest journalistic crime in Russian coverage, hyping the Steele dossier, he also ignored key parts of their coverage.

For example, he didn’t acknowledge that WaPo reported on Carter Page’s inflammatory comments in Moscow weeks before Steele did. Much of the focus on Page subsequent to WaPo’s report was based on this public source, not the dossier. It’s one of many events that the press covered for its real news value that Gerth, in his own narrative, suggests could only have happened with Hillary’s intervention.

Gerth also ignored large swaths of NYT and WaPo’s award-winning journalism on Russia, although he covered Trump’s attack on that reporting in the third installment of his series. 

NYT won a Pulitzer in 2017 for ten Russia-related articles and NYT and WaPo shared a prize for a combined 20 stories on the Russian investigation in 2018. Trump has sued the Pulitzer Board for defamation relating to the 2018 award. In his coverage, Gerth suggests that Trump’s lawsuit against the Pulitzer Board  for those awards has merit.

Best as I’ve been able to reconstruct, this page lists the newspaper coverage mentioned in Gerth’s series (in numerous ways, CJR’s decision not to link the media Gerth claimed to discuss made it very difficult to assess his claims, and I made one error in my questions to CJR as a result). The page also lists, at the end, some key stories that Gerth did not address. Those with asterisks — both in the stuff he covered and the stuff he did not — were part of the Pulitzer packages for which NYT and WaPo won prizes.

Gerth included just one of the stories for which NYT won a Pulitzer in 2017, the Manafort secret ledger story (the same story,  as Fusion GPS revealed after Barry Meier attacked them in a book, for which Fusion provided research).

But he ignored the rest. 

That had the effect of hiding the general background on Russia’s international assault on its opponents that NYT, as an institution, would have brought into its coverage of Trump’s suspected ties to the Kremlin in 2017: stories about 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.

Gerth also ignored two stories that were specifically on point to his project: A September 2016 story revealing how often Julian Assange’s Wikileaks releases served Russia’s political  interests (I raised some concerns about the piece here), and a December 2016 epic that described the Russian hack-and-leak from the DNC perspective (I pointed out the DNC’s changing story about being warned by the FBI here). The DNC story should be particularly important to Gerth’s project because it explicitly made the comparison with the Watergate burglary in 1972 that Gerth complains about in his series. It also provided a great deal of information, much publicly available, backing the hack-and-leak attribution to Russia – an attribution that Gerth claims remains “far from definitive.”

I asked Pope why the Assange and the DNC hack stories weren’t included in the series. He pointed to coverage of other NYT stories as proof CJR wasn’t ignoring the (2017, not 2018) Pulitzer stories.

Do you think it fair to ignore all the stories for which WaPo and NYT did get Pulitzers, including the 2017 ones on WikiLeaks and the DNC hack?

We didn’t ignore them. From the piece: “For the Times, Trump’s mess was a pot of gold: two of the Times stories about the meeting and the emails were part of its winning Pulitzer Prize package.

And … “But before that omission, the Times exposed another piece of the FBI’s Russia puzzle. The paper landed a major story at the end of the year, in time to be included in its Pulitzer package that ultimately shared the prize for national reporting.”

But there were a bunch of Pulitzer winners Gerth left out whose omission is still more problematic, particularly given his suggestion that the entirety of the press’ early 2017 focus on Russia in Trump’s administration stemmed from the publication of the dossier.

For example, Gerth barely mentions the coverage of Mike Flynn’s lies and resignation and its central role, starting even before the publication of the dossier, in press coverage in early 2017. He slips discussion of a key David Ignatius column, the first to report on Mike Flynn’s calls with Russian ambassador to the US, Sergei Kislyak, in between his references to the dossier.

The WSJ and the Times stories were not well received by Fusion. At first, they feared for Steele’s safety. Then they felt the Times’ behavior was “improper,” because it had “unilaterally” published material “it had learned off the record,” the founders wrote in their book.

Hours after the Times story ran, the Post upped the temperature on Russia even more. Columnist David Ignatius disclosed that incoming national security adviser Michael Flynn had phoned Russia’s US ambassador “several times” at the end of the year, according to “a senior US government official.” Ignatius noted the talks had come on the day the Obama administration had expelled Russian diplomats in retaliation for the country’s hacking activities, so he questioned whether Flynn had “violated” the spirit of an “unenforced” law barring US citizens from trying to resolve “disputes.”

Ignatius went on to write that it might be a “good thing” if Trump’s team was trying to de-escalate the situation. But Ignatius didn’t know the substance of the conversations. Hours before his story went online, Ignatius appeared on MSNBC and, while not disclosing his upcoming Flynn exclusive, said “it was hard to argue” against the need to “improve relations with Russia.”

The existence of Flynn’s talks with the ambassador was known by Adam Entous, a reporter then at the Post, but he held off writing anything because the mere fact of a contact wasn’t enough to justify a story. “It could have been something innocent,” Entous, now with the Times, said in an interview, “something he would be praised for.”

On the heels of the Ignatius column, the FBI’s “investigative tempo increased,” according to FBI records, and the Senate intelligence panel announced an inquiry into Russia’s election activities. (The House Intelligence Committee announced a similar effort later that month.)

Two days after the Senate announcement, Bob Woodward, appearing on Fox News, called the dossier a “garbage document” that “never should have” been part of an intelligence briefing.

But he doesn’t reveal why the FBI’s investigative tempo increased in the wake of Ignatius’ column. 

Stories that the WaPo published that he ignored did. A Pulitzer-winning WaPo report published the same day revealed that Flynn was denying he had discussed sanctions with the Russian Ambassador, the first of many compromising lies Trump’s associates told in the early days of his Administration. Flynn’s lies (as Mueller confirmed in his congressional testimony) created the risk that he could be blackmailed, which led the FBI and DOJ to respond more aggressively than they otherwise might have. Another Pulitzer-winning WaPo story explained all that on the day Flynn resigned. 

Later in the spring, a Pulitzer-winning NYT report revealed that Trump knew Flynn was under investigation for his secret relationship with Türkiye even before the president appointed him to be National Security Adviser. Gerth’s silence about all these stories is particularly damning, given that he later gets a key detail about Flynn’s prosecution wrong, which I’ll return to.

Other award-winning stories revealed still more Russian ties that Trump and his associates were trying to hide. A March story from WaPo — yet another Pulitzer winner — revealed that Jeff Sessions had failed to disclose some interactions with Sergey Kislyak, the same ambassador  with whom Flynn was undermining Obama foreign policy during the transition. An April Pulitzer-winning story from the NYT revealed that Jared Kushner had omitted transition period meetings with Russians — not just Kislyak, but also the head of a sanctioned bank — in his security clearance paperwork.

While Gerth may have mentioned a May article for which NYT won a Pulitzer, if he did, he did so only as part of his complaint that the NYT repeatedly referred to the line from Trump’s interview with Lester Holt in which he referred to “the Russian thing” in his explanation for firing Comey.

A tweet from the show on May 11 set the narrative for the Holt interview: “Trump on firing Comey: ‘I said, you know, this Russia thing with Trump and Russia is a made-up story.’” Those few words, by suggesting Comey’s firing was aimed at getting the FBI inquiry off his back, provided fresh ammunition to anti-Trumpers.

The full interview, which was available online, presented a more nuanced story, and appeared to reflect what his advisers told him: firing Comey could prolong, not end, the investigation. Trump told Holt, soon after the controversial words, that the firing “might even lengthen out the investigation” and he expected the FBI “to continue the investigation,” to do it “properly,” and “to get to the bottom.”

The media focused on the “Russia thing” quote; the New York Times did five stories over the next week citing the “Russia thing” remarks but leaving out the fuller context.

But Gerth’s account elided the entire reason Trump’s NBC quote was used in that particular NYT article: because Trump told Kislyak and Sergey Lavrov roughly the same thing, privately, on the same day.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

Gerth doesn’t address the real concerns presented by Trump privately bragging about firing the FBI director – in charge of counterintelligence – to his Russian visitors.

Indeed, given Gerth’s focus on Trump’s use of “fake news,” he might have at least mentioned the last lines of the NYT story:

At one point, Mr. Trump jokingly asked whether there were reporters in the room.

“No,” Mr. Lavrov said. “No fake media.”

Whether you think that Trump’s adoption of the term “fake news” was merited or not, the answer to Trump’s question, “Russia, if you’re listening,” was yes, they were.

Gerth also appears to have paid no attention to a Pulitzer-winner from WaPo written in the same time frame, revealing that Trump shared highly classified Israeli intelligence with his Russian visitors in the same meeting, another cause for concern that Gerth simply makes disappear. 

Those aren’t the only damning stories Gerth ignored. As Pope emphasized to me, Gerth credited NYT for two of three Pulitzer-winning stories on the June 9 meeting that Don Jr took with a Russian lawyer in hopes of acquiring dirt on Hillary– the July 10 one revealing that Don Jr took a meeting with Russians offering dirt, and the July 11 one revealing Don Jr’s enthusiastic response. But I don’t believe he credited the WaPo for their July 31 Pulitzer-winning story revealing that Trump drafted Don Jr’s misleading statement, claiming a meeting about dirt on Hillary and sanctions relief was about adoption.

The omission is really telling given Gerth’s take on a July 19 story from the NYT (which did not win a prize). In an interview with three NYT reporters, Trump successfully got the NYT to participate in his efforts to obstruct the investigation by airing his threats to fire Jeff Sessions (he had asked Corey Lewandowski to fire Jeff Sessions on the same day). In the interview, Trump also confirmed that he and Putin spoke about the topic of his misleading statement before drafting it, meaning adoptions. But Gerth deemed that interview important primarily because Mike Schmidt asked Trump about the dossier.

A week after the Trump Tower story, the president conducted a serendipitous interview with three Times reporters, including Schmidt, who asked if Comey’s sharing of the dossier with Trump before his inauguration was “leverage.” Trump replied, “Yeah, I think so, in retrospect.”

After the Oval Office sit-down, an aide, worried about the possibility of repercussions from an impromptu interview, sought Trump’s reaction.

“I loved that,” the aide, who requested anonymity, recalled him saying. “It was better than therapy. I’ve never done therapy, but this was better.”

This is a fairly astounding view on the relative newsworthiness of the interview — I’ve pointed out the importance, to Trump’s obstructive purpose, of NYT’s decision to bury the Putin tie rather than dedicate an entire story to it. It’s also a prime example of how the unrelenting focus on the dossier by “Russiagate” adherents diverts attention from far more damning events, both creating in that unrelenting focus the narrative they claim to combat, and in the process burying the real events that “Russiagate” adherents claim could only come as part of a manufactured narrative.

I asked CJR, “Why do you believe a comment on the dossier was more important than a scoop substantiating Trump’s problematic ties to Putin?” but it was another of the questions the magazine’s editor declined to answer.

There are more Pulitzer winners that Gerth left out, including a WaPo story describing both Trump’s refusal to take steps to protect American democracy from Russian interference…

Nearly a year into his presidency, Trump continues to reject the evidence that Russia waged an assault on a pillar of American democracy and supported his run for the White House.

The result is without obvious parallel in U.S. history, a situation in which the personal insecurities of the president — and his refusal to accept what even many in his administration regard as objective reality — have impaired the government’s response to a national security threat. The repercussions radiate across the government.

Rather than search for ways to deter Kremlin attacks or safeguard U.S. elections, Trump has waged his own campaign to discredit the case that Russia poses any threat and he has resisted or attempted to roll back efforts to hold Moscow to account.

… As well as Russia’s assessment of the “staggering return”  achieved by their interference operation.

U.S. officials said that a stream of intelligence from sources inside the Russian government indicates that Putin and his lieutenants regard the 2016 “active measures” campaign — as the Russians describe such covert propaganda operations — as a resounding, if incomplete, success.

Moscow has not achieved some its most narrow and immediate goals. The annexation of Crimea from Ukraine has not been recognized. Sanctions imposed for Russian intervention in Ukraine remain in place. Additional penalties have been mandated by Congress. And a wave of diplomatic retaliation has cost Russia access to additional diplomatic facilities, including its San Francisco consulate.

But overall, U.S. officials said, the Kremlin believes it got a staggering return on an operation that by some estimates cost less than $500,000 to execute and was organized around two main objectives — destabilizing U.S. democracy and preventing Hillary Clinton, who is despised by Putin, from reaching the White House.

The bottom line for Putin, said one U.S. official briefed on the stream of post-election intelligence, is that the operation was “more than worth the effort.”

But the stories from the first half of 2017 that Gerth left out are key. They not only reveal the real reason that the FBI investigation picked up in early 2017, they also show that a great deal of important journalism provided abundant reason to be concerned about all the secrets about Russia that Trump and his aides were keeping, independent of the dossier.

The contacts with Russian spies that were later confirmed

That focus – the ties with Russia that Trump, his National Security Adviser, his Attorney General, and his son-in-law failed to disclose – makes Gerth’s chief complaint about the NYT coverage look very different.

He appears especially peeved over a series of NYT stories in this same time period that described the sheer number of contacts that investigators were discovering with various Russians described by the paper as intelligence officers.

Gerth’s critique relies heavily on a Peter Strzok annotation of the February 14 story that Strzok shared with top FBI officials (parts of which, detailing how few call records the investigation had yet obtained, explain why early reports Gerth points to to make claims about the investigation, including one from James Clapper, are meaningless). It is absolutely true that Strzok found no basis for the NYT to claim that the Russians with whom Trump and his aides were in contact were Russian spies. 

Gerth also reviews how Comey disavowed such reports in his public testimony to Congress, with support from Devin Nunes.

That section of the series, covering all four stories, is over 2,500 words long.

As Gerth described it, when NYT has been challenged on these stories, they’ve stood by them. I share Gerth’s curiosity regarding NYT’s sources for the stories, but like Gerth himself, the NYT is not about to share their sources. 

It’s worth noting, though, that Gerth seems to believe that the US-based three letter agencies (or the Congressional personnel who’ve been briefed by those agencies) referenced in Strzok’s memo are the only possible sources for these stories. We know that at least five other intelligence services — the UK, the Dutch (from whom the US got a great deal of intelligence on the operation), the Spanish, the Ukrainians, and the Israelis — would have had their own views about which foreign interlocutors with Trump aides were spies. We know of a number of witnesses, not in government at all, who told Mueller they believed one or another interlocutor was a spy. We also know of a number of overt spies (such as Emirati ones) who had a role in the international effort to influence Trump. And we know of contacts – like that between Stone and Guccifer 2.0 – that were legitimately viewed as a spy contact when they started to become known around this time.

The clearest error in the NYT series pertains to the claim that an investigation into Stone had already been opened, but that’s an error SSCI seems to have shared, because on March 16,  Senator Richard Burr told Don McGahn the FBI was investigating Paul Manafort, Roger Stone, Carter Page, and “Greek Guy.”

In the years since, however, the US government has come to believe more of the people known to have been interacting directly with Trump’s aides were Russian spies.

Konstantin Kilimnik — who along with at least two other Deripaska allies have been described as Russian agents in official US documents — is a particularly important one, given Gerth’s complaints that the NYT didn’t call Kilimnik for comment when the record shows they did (including in the March 3 one).

Gerth’s claims about the evidence that Kilimnik was a spy were nothing short of fanciful, including a perennial “Russiagate” favorite — which he credits to John Solomon’s scoop, from a period when Solomon was part of Rudy Giuliani’s outreach to people like Dmitry Firtash – that Kilimnik had been a source for the State Department.

As for Kilimnik possibly being a Russian spy, the only known official inquiry, by Ukraine in 2016, didn’t result in charges. More recent claims that he worked for the Russians, by the Senate intelligence panel in 2020 and the Treasury Department in 2021, offered no evidence. Conversely, there are FBI and State Department documents showing Kilimnik was a “sensitive source” for the latter. (The documents were disclosed a few years ago by John Solomon, founder of the Just the News website. Kilimnik, in an email to me, confirmed his ties with State.)

One primary objective of most spies, of course, is to infiltrate the agencies of other governments.

I asked CJR why Gerth claimed SSCI had no evidence against Kilimnik when their section substantiating their assessment about Kilimnik includes 16 bullet points, over half redacted, and they also included a separate 5-page, largely redacted section showing more fragmentary evidence that Kilimnik had a role in the hack-and-leak. I also asked why Gerth thought the FBI, under Trump, would have issued a $250,000 reward for Kilimnik’s arrest.

Those questions also went unanswered.

So the NYT may well have been ahead of the FBI’s assessment in spring 2017 (and their report that Stone was already part of the investigation has been shown to be wrong). But those reports really aren’t ahead of what the US intelligence community says they have since corroborated. Moreover, many of the Pulitzer stories that Gerth doesn’t mention show that Trump and his associates were aggressively lying to hide their ties to Russians or their interlocutors, and criminally so, in the case of Flynn and George Papadopoulos (and, ultimately, Michael Cohen and Roger Stone, too). That background — the lies that Flynn and Sessions and Kushner were telling about their Russian ties — is important background to these stories Gerth hates, yet he makes no mention of them.

Gerth’s main remaining gripe about the WaPo is even more remarkable. He spent six paragraphs on the WaPo’s scoop reporting the FISA order targeting Carter Page.

In early April, the Post story on Page landed, calling the surveillance “the clearest evidence so far that the FBI had reason to believe during the 2016 presidential campaign that a Trump campaign adviser was in touch with Russian agents. Such contacts are now at the center of an investigation into whether the campaign coordinated with the Russian government to swing the election in Trump’s favor.” It noted Page’s “effusive praise” for Putin and mentioned Schiff’s congressional recitation of the Page allegations in the dossier. Relying on anonymous sources, it gave a vague update on the dossier’s credibility: “some of the information in the dossier had been verified by US intelligence agencies, and some of it hasn’t.”

At the Times, the newsroom was irked about getting beaten by the Post. “Times is angry with us about the WP scoop,” Strzok texted to an FBI colleague, a few days later.

But the Post scoop was incomplete. Its anonymous sources mirrored the FBI’s suspicions but left out the bureau’s missteps and exculpatory evidence, as subsequent investigations revealed. It turns out that the secret surveillance of Page was an effort to bring in heavier artillery to an FBI inquiry that, in the fall of 2016, wasn’t finding any nefarious links, as the Times reported back then. Agents were able to review “emails between Page and members of the Donald J. Trump for President Campaign concerning campaign related matters,” according to an inquiry in 2019 by the Justice Department Inspector General. FBI documents show the surveillance of Page targeted four facilities, two email, one cell, and one Skype.

Still, even with the added surveillance capability, the investigation had not turned up evidence for any possible charges by the date of the Post piece, which came four days after the secret surveillance, called FISA, for the Foreign Intelligence Surveillance Act, was renewed for the second time. (Page was never charged.)

The IG review also found that the FISA warrant process was deeply flawed. It relied heavily on the dossier, including the fabricated Millian allegation of a conspiracy, the IG found. Furthermore, the report said the warrants contained seventeen “significant errors and omissions,” such as leaving out exculpatory information about Page, including his previous work for the CIA and comments he made to an undercover FBI informant. And by the time of the Post piece, the dossier’s credibility was collapsing; the FBI knew the CIA called it “internet rumor,” and on its own the FBI “did not find corroboration for Steele’s election reporting,” according to the IG report.

The Post spokesperson, who would only speak on background, said the article on Page was “fair and accurate” and meant to reflect “how deeply the FBI’s suspicions were about Page.” They acknowledged the story was incomplete, noting that “at that time there was a lot that was not publicly known.” [my emphasis]

This passage commits several errors. The FBI targeted Page not because they were looking for heavier artillery. They did so because Page was about to travel internationally and they wanted coverage of that trip. (The FBI consistently described the FISA targeting of Page as “productive” or “fruitful.”) And Bill Barr’s DOJ didn’t withdraw the probable cause claim for Page’s first two FISA orders. The applications against him, which were based in part on his voluntary sharing of non-public information with known Russian intelligence officers, alleged he knowingly aided and abetted foreign spies.

Over time, there would be more than those four facilities, and in fact one main reason FBI submitted the especially problematic June 2017 application was because the FBI wanted to access financial information and two encrypted messaging apps, the latter out of suspicion that Page had destroyed a phone once he discovered he was under investigation.

The FBI also had concerns about Page’s initial denial in a March 16, 2017 interview that he had sought out some Russian official to identify himself as the Male-1 in court filings for one of the Russians trying to recruit him some years earlier.

There was evidence for possible charges; there was evidence when the FBI first opened an investigation into him in April 2016. Just not enough to charge him.

Errors aside, though, Gerth here adopts a fairly remarkable stance. He complains that the WaPo story confirming the FISA targeting did not include all the problems with the FISA applications that wouldn’t be discovered until much later. I spoke with a Congressional Republican who was privy to the applications targeting Page in summer 2018, for example, and even at that point, the person believed there was abundant other evidence against Page, even without any information from Steele. Crazier still, in April 2017 when the WaPo published that scoop, the worst abuse of all identified in the Page applications – the alteration of an email – hadn’t happened yet.

The WaPo would have needed a time machine to meet Gerth’s strictures.

Gerth’s claims that the NYT and WaPo’s reporting was particularly problematic are, with a few exceptions, extraordinarily weak, and that’s before you consider all the Pulitzer articles he simply ignored. But he also ignores some of the more problematic NYT stories, like the NYT decision to bury Trump’s discussion of adoptions with Putin immediately before he wrote a misleading note claiming the June 9 meeting addressed adoptions. Similarly, Gerth had no problem that the NYT not only parroted Bill Barr’s misleading March 24, 2019 letter about the Mueller Report, but ran entire blocks of his letter on the front page. I asked CJR if they had any problem with this article, which misrepresented court filings in the Manafort case to suggest that his sharing of polling data with Konstantin Kilimnik happened in the spring, not during the general election, and involved only Ukrainian oligarchs, not Deripaska; to this day, the article feeds misunderstanding about that allegation. 

That was another question to which I got no answer.

Gerth has plenty of complaints about the NYT — just not about the stories where they erred on the side of downplaying the discoveries of the Russian investigation.

But as I’ll show in my next post, Gerth’s poor framing of his complaints about the NYT coverage doesn’t end there.

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

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

If the Former President Gets Top Billing in a Sedition Trial But You Didn’t Bother to Notice …

There’s a weird passage in a column that Charlie Pierce published today, announcing that,

[M]y patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted.

… Because Garland has …

let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.

It’s this passage: Charlie claims that the “announcement” of a subpoena, which he attributes to Jack Smith, got lost amid the news of the investigation into the classified documents found in President Biden’s possession.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

There was no announcement.

What Charlie treats as an “announcement” is a WaPo story, on which Mar-a-Lago Court Reporter Josh Dawsey is the first byline and Devlin Barrett is the second, describing a subpoena sent out on December 9, just three weeks and a Thanksgiving holiday after Jack Smith was appointed and over a month before the story itself. Charlie considers the subpoena “a blast of canister fire,” and hails the “genuine momentum,” but complains that “the announcement was lost in the hurly-burly of the Biden documents.”

Charlie doesn’t consider that this paragraph is itself an admission on his part that stuff can go on — stuff that he considers really impressive — and he might not find out about it for over a month. He says that about a story that describes that, “the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level,” but doesn’t describe who those witnesses are (and whose testimony, with the exception of about seven people — Rudy Giuliani, Stephen Miller, Dan Scavino, William Russell, Beau Harrison, and the two Pats, Philbin and Cipollone, has not otherwise been reported). He says that of a story that linked an earlier WaPo story, dated September 16 and so describing developments that preceded Jack Smith’s arrival by two months, that described dozens of subpoenas requesting communications with more than 100 people.

Dozens of subpoenas issued last week show that the Justice Department is seeking vast amounts of information, and communications with more than 100 people, as part of its sprawling inquiry into the origins, fundraising and motives of the effort to block Joe Biden from being certified as president in early 2021.

That’s the investigation, still under Garland, that Charlie calls “dilatory.”

And Charlie says that the same week that a third January 6 sedition trial kicked off by showing Donald Trump’s call on the men standing trial for sedition to “Stand Back and Stand By.”

As Charlie’s statement admits, his is partly a complaint about the press, which was focused on Biden’s legal discomforts rather than more important things, like Trump’s attempted coup.

Of course, Charlie is part of the press.

And Charlie, part of the press, made no mention of Trump’s prominence in DOJ’s Proud Boys opening argument. Charlie wants a compelling trial the likes of the Nuremberg Trials, yet the most important January 6 trial to date tied Trump’s actions directly to the overt acts in this alleged sedition conspiracy, and Charlie made no mention of the fact that Trump’s comments were presented as evidence in a sedition trial.

A huge part of Charlie’s complaint is about the evidence that he can see.

[Nuremburg Prosecutor Robert Jackson] wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there’s damn little evidence of it, and this week, everything seemed to be running in the opposite direction.

It’s not actually clear whether Charlie even knows that Trump’s incitement of the Proud Boys played a central role in the opening argument of a sedition trial, though dozens of reporters covered it, a number in real time. Many of those reporters are exhausted, though exhausted not so much about their perceptions of Garland, but because they’ve given up evenings and weekends for two years to make sure these events get covered.

If the former President gets top billing in a sedition trial but you didn’t bother to notice, does it count as evidence about DOJ investigations?

My January 6 anniversary post last year was about how unknowable January 6 is, particularly for anyone not working full time to know it.

To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

In recent weeks, those of us doing that full time have learned still more about how vast it all is — and how many tools the January 6 Committee withheld from prosecutors six months after the prosecutors had urgent need of them.

In those same recent weeks, two years into this thing, I’ve come to new realizations about how complex this is: it’s not just an investigation into a former President protected by Executive Privilege and at least six people protected by the Speech and Debate clause, but it’s also an investigation in which at least 26 key witnesses or subjects are lawyers protected by Attorney-Client Privilege. I’ve developed new theories about how DOJ — the same AUSAs who’ve been working 24/7 on this case for two years, before and after Jack Smith got involved — aspires to chisel away at those unprecedented protections. I’ve also increasingly seen gaps, both in PACER dockets and subpoenas, where investigative subjects used to be, gaps which sometimes suggest progress that DOJ needs to protect, progress that even those of us following full time might only confirm four months after the fact and only if we happen to be listening in real time when a lawyer blurts something out he shouldn’t have.

Charlie says this was a distressing week.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away.

It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again, watching the same insurrectionists encourage a coup attempt in Brazil, losing sleep over whether American democracy can be saved.

But it was distressing for another reason: because so many really smart people I respect — and I include Charlie among them — have responded to the unknowability of January 6 not by attempting to grab ahold of something to ensure their own meanderings remain grounded in evidence, but instead by making authoritative assertions about evidence that are, instead, confessions that great swaths of this investigation are proceeding without them noticing.

One major reason we’re all so distressed is because truth is under assault — because Jim Jordan intends to spend the next two years turning Trump’s crimes into victimhood, just as he spent the entirety of Trump’s presidency doing.

But making authoritative claims about evidence without knowledge of the evidence only makes his job easier, in part because it stoops to his level, in part because it magnifies the anxiety.

You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.

Charlie Pierce wants trials the likes of the Nuremberg Trials, which were so powerful because the architects of an authoritarian conspiracy were tied to the events that took place at the crime scenes. And DOJ took a key step in doing that week — a key step in an effort that has been obviously in the works for 18 months, an effort that started on January 4, 2021, when Enrique Tarrio’s phone was seized (his phone, which ties the Proud Boys to other organizers, took over a year to exploit), and took another step on January 7, 2021, when the first Proud Boy who would plead guilty to obstruction was arrested.

And yet Charlie Pierce has seen no evidence of that.

Update: I’ve fixed the January 7 detail: that was a reference to Nicholas Ochs, who was arrested when he arrived back in Hawaii. He and Nicholas DeCarlo were charged with conspiring with each other to obstruct January 6, and they did plan together. But both pled to obstruction, not conspiracy. They were both sentenced to 4 years in prison.

SDNY Calls DOJ’s Definition of the Espionage Act an “Academic Interest”

DOJ has now responded to my intervention in the Joshua Schulte case. Presumably because my motion, written by Kel McClanahan, focused on how flimsy the government’s claim to keep transcripts of a CIPA conference hidden, the government’s response pitches this as exclusively a CIPA battle. It’s totally a reasonable legal stance.

But along the way, in apparent effort to distract from the topic at issue — in part, the application of the Espionage Act to journalism — SDNY suggests it is just an academic interest whether DOJ would charge someone for sharing classified information already published by the NYT.

The mere fact that someone would like to know information is not a part of the right-of-access analysis, however, and the Government’s motion should be granted.

[snip]

Intervenor’s desire to speculate as to the potential application of the Government’s articulation of the elements of an offense to other circumstances has no bearing on the ability of the public to monitor or assess the actual rulings of the Court in the CIPA § 6 hearings to which Intervenor demands access.

[snip]

[T]he question is not whether redacted transcripts are coherent as a matter of language or whether they might be relevant to Intervenor’s academic interest.

I’m the intervenor here, not McClanahan (who is a professor on national security law at GW Law). I need to know this stuff not just to cover WikiLeaks (I’m more of an expert than the expert SDNY relied on in the first trial, Paul Rosenzweig), but also to understand my own exposure as a journalist.

Not once in the filing does the government use the words “Espionage Act.” Not once does DOJ mention “journalist.” Not once does it mention the NY Times, the hypothetical that DOJ is attempting to hide, which (as Judge Jesse Furman described in a court hearing) is this:

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

The government is no doubt exploiting the emphasis in my filing, but the notion that whether I can be charged for doing journalism is not an academic interest! It’s not just that there is an acute interest, amid the Julian Assange extradition proceedings, to know the government’s thinking about the Espionage Act, it goes to the chilling effect of not knowing what I can safely publish in the course of doing my job. I don’t have the luxury of “speculating” about the application of the Espionage Act, because if I guess wrong, I could be imprisoned for a decade.

The government wants this to be about CIPA. But the problem is that the government is attempting to hide something that is not classified — the elements of offense for a serious crime that can chill the ability to do journalism — via claims about CIPA.

Third, Intervenor asserts a First Amendment right of access premised on the assertion that “the Government present[ed] legal arguments about elements of the crime itself,” which Intervenor claims both have traditionally been open to the public and are of value to the monitoring of the judicial process. (D.E. 988 at 2). Intervenor’s contention that legal arguments the Government may have advanced at the Section 6 hearings are “something that interested persons in the field should know” (id. at 3) simply “cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding.” United States v. Cohen, 366 F. Supp. 3d 612, 631 (S.D.N.Y. 2019). Contrary to Intervenor’s suggestion that discussion of the elements of an offense “stray[s] far from a simple discussion of evidentiary issues” (D.E. 988 at 3), such discussion is integral to virtually any assessment of the relevance and admissibility of evidence, including that occurring in CIPA § 6 hearings, in which courts “look to what elements must be proven under the statute,” United States v. McCorkle, 688 F.3d 518, 521 (8th Cir. 2012); see also United States v. Bailey, 444 U.S. 394, 416 (1980) (describing need to “limit[] evidence in a trial to that directed at the elements of the crime”).

Tellingly, SDNY’s citation of a 2019 District opinion relating to the unsealing of Michael Cohen’s search warrants — which were released with redactions, the desired goal here! — is inapt to the question of whether the government should be able to hide its discussions of how it understands the Espionage Act by claiming that that needs to be protected as classified information.

Considerations of logic also counsel against recognizing a First Amendment right to access search warrant materials. Of course, public access to search warrant materials may promote the integrity of the criminal justice system or judicial proceedings in a generalized sense. United States v. Huntley943 F.Supp.2d 383, 385 (E.D.N.Y. 2013) (remarking that “the light of the press shining into the innards of government is necessary to inhibit violation of the public trust”). But such an argument cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding. Cf. Times Mirror Co.873 F.2d at 1213 (rejecting as overbroad the argument that the First Amendment mandates access to any proceeding or document that implicates “self-governance or the integrity of the criminal fact-finding process”); In re Bos. Herald, Inc.321 F.3d at 187 (“In isolation, the [rationale that the public must have a full understanding to serve as an effective check] proves too much—under it, even grand jury proceedings would be public.”). As the Ninth Circuit aptly observed, “[e]very judicial proceeding, indeed every governmental process, arguably benefits from public scrutiny to some degree, in that openness leads to a better-informed citizenry and tends to deter government officials from abusing the powers of government.” Times Mirror Co.873 F.2d at 1213.

Understanding the law is a matter that precedes the media’s scrutiny of whether the government abused the Espionage Act in this case (or in Julian Assange’s). And while the elements of the offense of the Espionage Act does dictate whether evidence would be helpful or not to the defense — the consideration of a CIPA hearing — ultimately this debate was about (and significantly appeared in) jury instructions, the law as applied.

Again, SDNY’s stance seems tactical, a response to our filing’s greater focus on matters of classification than the status of the press. But the outcome — SDNY’s claim that I have the luxury of merely “speculating” about the application of the Espionage Act — is alarmingly arrogant.


I was only able to make this challenge because McClanahan was able and willing to help — and he can only do so through the support of his non-profit. If you believe fights like this are important and have the ability to include it in your year-end donations, please consider supporting  the effort with a donation via this link or PayPal. Thanks!

Supporting Those Who Make Good Trouble

Magnet available from the American Library Association

I called it good trouble. I called it necessary trouble. And ​every so often, when you see something that is not right, not fair, not just — you have to say no, no.”

–John Lewis

In my work as a pastor, I cross paths with a lot of “Good Trouble” makers. Some are church-related and others not religious at all. Some are connected with big international groups, others work at the national or state level, and still others are involved with seat-of-the-pants local organizations with a small board and a couple of key volunteers. What they all have in common is what John Lewis talked about – they saw something that is not right, not fair, not just, and they said no. They said “no” to what is, and then rolled up their sleeves to say “yes” to what is needed.

As we approach the end of the year, I want to lift up a number of these makers of Good Trouble. If you want to enjoy their stories, read on and then go link-hopping through their websites. If you share their passion for standing up against a particular wrong, a specific injustice, or a structural unfairness, I urge you to make a little Good Trouble of your own, by finding the “Donate” buttons on their websites and help them out.

Legal Disclaimer #1: What follows are *my* comments, and do not imply any endorsement by Emptywheel.net, Marcy Wheeler, or anyone else here at EW. Information at the links (or quoted here from their websites) are, of course, the statements of those groups, and they are responsible for how they describe themselves.

One group of Good Trouble makers I interact with a lot are those involved in feeding the hungry — hungry being people without homes who have been caught in economic distress to entire communities devastated by a natural disaster. Either way, the Good Trouble makers in the groups below are people who see someone in need of a basic meal and say “this is not right, not fair, not just — we gotta get these folks some food.”

Feeding America:

Feeding America is the largest hunger-relief organization in the United States.

Our mission is to advance change in America by ensuring equitable access to nutritious food for all in partnership with food banks, policymakers, supporters, and the communities we serve.

Feeding America is an umbrella organization made up of food banks that span the country. A food bank is a wholesale operation, designed to collect donations (especially in-kind) from farmers and food companies and then making them available at little or no cost to local food pantries who do the retail work of distributing it to those in need. Feeding America has a big directory of regional food banks, and each of these food banks has its own list of food pantries they support.

Here in metro Kansas City, Harvesters is our food bank, and I’ve worked with them and a number of food pantries they support. Harvesters is a top-notch, transparent operation, and they expect nothing less from the food pantries that utilize them. To gain access to Harvesters, a food pantry has to have their location inspected and their leaders have to go through a Harvesters training program, in part to familiarize themselves with the Harvesters reporting obligations,  and in part to make sure that the gifts Harvesters has received are put to good use. No letting stuff spoil, no making clients sick, and no taking some off the top for your own organization.

Harvesters provides food and related household products to more than 760 nonprofit agencies including emergency food pantries, community kitchens, homeless shelters, children’s homes and others. We also offer education programs to increase community awareness of hunger and teach about good nutrition.

Harvesters is a certified member of Feeding America, a nationwide network of more than 200 food banks. In 2011, Harvesters was Feeding America’s Food Bank of the Year. We are a registered 501(c)3 nonprofit organization.

One big element of of Harvesters is that they require that any food pantry that uses their resources must be completely free to the people in need, and free of any religious requirements. Not only can these groups not charge any financial fees, but they cannot require their patrons to attend a bible study or other religious event. A church-run pantry can say “We operate this food pantry because of our Christian faith” but they cannot require people to attend worship before getting a couple sacks of food.

If you are interested in dealing with food insecurity in the US, whether at a national, regional, or street level, Feeding America and its affiliates offer a wealth of places that could use your support.

Other hunger-related organizations are aimed at disaster relief. Two that I long have supported are World Central Kitchen and Operation BBQ Relief (a group that our own Jim White works with). These are groups that come in after a disaster has hit, and work to get the community back on its feet with immediate support, feeding both the local residents affected by the disaster as well as the medical folks, utility crews, and others who have come to deal with the medical and logistical work of recovery.

World Central Kitchen:

WCK responds to natural disasters, man-made crises, and humanitarian emergencies around the world. We’re a team of food first responders, mobilizing with the urgency of now to get meals to the people who need them most. Deploying our model of quick action, leveraging local resources, and adapting in real time, we know that a nourishing meal in a time of crisis is so much more than a plate of food—it’s hope, it’s dignity, and it’s a sign that someone cares.

Operation BBQ Relief:

Armed with a caravan of cooks, mobile pits, kitchens and volunteers, Operation BBQ Relief delivers the healing power of BBQ in times of need, feeding first responders and communities affected by natural disasters along with year-round efforts to fight hunger through The Always Serving Project® and Camp OBR™ programs.

Another group of Good Trouble makers that I am becoming more familiar with are those who work and speak from the margins of society. Some groups work to challenge those at the center, those with the power, those whose work is causing pain at the margins. Other groups work with those at the margins to simply say “we are here,” lifting up and encouraging one another not to be content with scraps from the master’s table. Note, please, that both groups do challenging and uplifting things, just with a different emphasis and approach.

For example, consider the following groups, all associated with the Native American community.

Association on American Indian Affairs:

The Association on American Indian Affairs is the oldest non-profit serving Indian Country protecting sovereignty, preserving culture, educating youth and building capacity. The Association was formed in 1922 to change the destructive path of federal policy from assimilation, termination and allotment, to sovereignty, ​self-determination and self-sufficiency. Throughout our 100-year history, we have provided national advocacy on watershed issues that support sovereignty and culture, while working at a grassroots level with Tribes to support the implementation of programs that affect real lives on the ground.

Native American Rights Fund:

Our Mission: The Native American Rights Fund holds governments accountable. We fight to protect Native American rights, resources, and lifeways through litigation, legal advocacy, and legal expertise.

Native American Journalists Association:

NAJA serves and empowers Native journalists through programs and actions designed to enrich journalism and promote Native cultures.

NAJA recognizes Native Americans as distinct peoples based on tradition and culture. In this spirit, NAJA educates and unifies its membership through journalism programs that promote diversity and defends challenges to free press, speech and expression. NAJA is committed to increasing the representation of Native journalists in mainstream media. NAJA encourages both mainstream and tribal media to attain the highest standards of professionalism, ethics and responsibility.

Indian Country Today:

Telling the stories of indigenous communities by indigenous journalists is at the core of Indian Country Today. Since our beginnings in 1981 as a weekly newspaper, ICT has grown into the largest news organization serving Native American communities. In April 2020, we expanded into public broadcasting through a daily newscast about how the coronavirus pandemic has affected American Indians, First Nations and Alaska Natives.

With this bold new step into public television, Indian Country Today has become a spacious channel through which it distributes news across multiple platforms. Coverage includes digital, print and broadcast news outlets featuring top stories, news, lifestyle and classified job listings.

American Indian Science and Engineering Society:

The American Indian Science and Engineering Society (AISES) is a national nonprofit organization focused on substantially increasing the representation of Indigenous peoples of North America and the Pacific Islands in science, technology, engineering, and math (STEM) studies and careers.

Founded in 1977, growing the AISES membership above our current 5,900 individual members is key to achieving our mission. AISES supports 230 affiliated pre-college schools, 196 chartered college and university chapters, 3 tribal chapters, and 18 professional chapters in the U.S. and Canada. We promote the highest standards of education and professional excellence to widen the STEM workforce and grow sector support. We highlight the geographic, economic, and social aspects of STEM education and careers.

In addition to awarding nearly $12 million and counting in academic scholarships, AISES offers internships, professional development and career resources, national and regional conferences, leadership development summits, and other STEM-focused programming.

I could go on like this for a long time, but let me offer just one more example of Good Trouble makers, whose passion is to stand against book banning and book burning.

In both Kansas and Missouri, public libraries and public schools are seeing more and more challenges to books written by Good Trouble makers who write to address matters of race, gender, sexual orientation, and other similar things. The folks challenging these kinds of books say “Don’t get political” but what they really mean is “Don’t trouble the waters and make us look at uncomfortable things.”

On the one hand, the fact that these folks are upset with libraries and schools is a good thing. It means that the Good Trouble maker writers, librarians, teachers, and administrators are having an effect. They are making Good Trouble, and it’s causing problematic people to feel uncomfortable. On the other hand, these writers, librarians, teachers, and administrators need support, to encourage them to keep on keeping on.

PEN America:

PEN America stands at the intersection of literature and human rights to protect free expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

Founded in 1922, PEN America is the largest of the more than 100 centers worldwide that make up the PEN International network. PEN America works to ensure that people everywhere have the freedom to create literature, to convey information and ideas, to express their views, and to access the views, ideas, and literatures of others. Our strength is our Membership—a nationwide community of more than 7,500 novelists, journalists, nonfiction writers, editors, poets, essayists, playwrights, publishers, translators, agents, and other writing professionals, as well as devoted readers and supporters who join with them to carry out PEN America’s mission.

PEN America, a registered 501(c)(3) organization, is headquartered in New York City, with offices in Los Angeles and Washington, D.C. and chapters in seven regions.

American Library Association:

Founded on October 6, 1876 during the Centennial Exposition in Philadelphia, the mission of ALA is “to provide leadership for the development, promotion and improvement of library and information services and the profession of librarianship in order to enhance learning and ensure access to information for all.”

In pursuing our mission, the Association’s core value statements define our deepest aspirations and how we approach our work together. They are:

  • Extending and expanding library services in America and around the world
  • All types of libraries – academic, public, school and special
  • All librarians, library staff, trustees and other individuals and groups working to improve library services
  • Member service
  • An open, inclusive, and collaborative environment
  • Ethics, professionalism and integrity
  • Excellence and innovation
  • Intellectual freedom
  • Social responsibility and the public good
  • Sustainability

Like I said, I could go on like this for a long time.

But what I really want to know is this: Who are the Good Trouble makers that you know about, that you support, that you work with, that the rest of us should know about? Put them in the comments, give us a link, and tell us how they go about making Good Trouble.

Legal Disclaimer #2: What follows in the comments are the comments of the person posting them, and do not imply any endorsement by Emptywheel.net, Marcy Wheeler, or anyone else here at EW. Information at the links (or quoted here from their websites) are, of course, the statements of those groups, and they are responsible for how they describe themselves.

With the great mix of commenters here, I’m sure there are plenty of Good Trouble makers you’d like to lift up. I’m also confident that this is the kind of question that might draw out some of the lurkers here. Some do not comment because they feel out of their depth with the subject of many of the posts — but on this post, YOU are the experts, because YOU know who the Good Trouble makers are in your neighborhood.

So have at it, and tell us who makes Good Trouble that deserve props and support. Oh, and if you are so inclined, you can help support the Good Trouble made here at Emptywheel too.

On the Shoddy Journalistic Defense of “WikLeaks”

When it was first published, a letter that the NYT, Guardian, Le Monde, Der Spiegel, and El País signed, calling on the US government to drop the Espionage Act charges against Julian Assange, got the date of Assange’s arrest wrong — it was April 11, not April 12, 2019. The outlets have since corrected the error, though without crediting me for alerting them to it.

A correction was made on Nov. 29, 2022: An earlier version of this letter misstated the date of Julian Assange’s 2019 arrest. It was April 11th, not April 12th.

An email was sent by me and then a correction was made. No bill was sent for the free fact checking.

As it currently exists, even after correcting that error, the Guardian version of the letter misspells WikiLeaks: “WikLeaks.”

For Julian Assange, publisher of WikLeaks, the publication of “Cablegate” and several other related leaks had the most severe consequences. On [April 11th] 2019, Assange was arrested in London on a US arrest warrant, and has now been held for three and a half years in a high-security British prison usually used for terrorists and members of organised crime groups. He faces extradition to the US and a sentence of up to 175 years in an American maximum-security prison. [my emphasis]

The slovenly standards with which five major newspapers released this letter suggest the other inaccuracies in the letter may be the result of sloppiness or — in some cases — outright ignorance about the case on which they claim to comment.

Take the claim Assange could serve his sentence in “an American maximum-security prison.” The assurances on which British judges relied before approving the extradition included a commitment that the US would agree to transfer Assange to serve any sentence, were he convicted, in Australia.

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

While the assurances that Assange wouldn’t be subject to Special Administrative Measures (basically contact limits that amount to isolation) aren’t worth the paper they were written on — partly because Assange did so much at the Ecuadorian Embassy that, if done in a US jail, would get him subject to SAMs, and partly because the process of designation under SAMs is so arbitrary — reneging on the agreement to transfer Assange to Australia would create a significant diplomatic row. A sentence in an American maximum-security prison is explicitly excluded from the terms of the extradition before Attorney General Garland, unless Assange ultimately chose to stay in the US over Australia (or Australia refused to take him).

The claim that he could be sentenced to 175 years, when the reality is that sentencing guidelines and concurrent sentences would almost certainly result in a fraction of that, is misleading, albeit absolutely within the norm for shoddy journalism about the US legal system. It’s also needlessly misleading, since any sentence he would face would be plenty draconian by European standards. Repeating a favorite Assange line, one that is legally true but practically misleading, does little to recommend the letter.

In the next paragraph, these five media outlets seem to suggest that the Computer Fraud and Abuse Act conspiracy alleged in “the indictment” is limited to Assange’s effort to crack a password.

This group of editors and publishers, all of whom had worked with Assange, felt the need to publicly criticise his conduct in 2011 when unredacted copies of the cables were released, and some of us are concerned about the allegations in the indictment that he attempted to aid in computer intrusion of a classified database. But we come together now to express our grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.

It is — in the 2017 to 2019 charging documents. But not the one on which Assange is being extradited.

The hacking conspiracy, as currently charged, is a 5-year conspiracy that alleges far more than — and starts before — the password cracking seemingly described in the paragraph. It includes Assange’s use of Siggi’s credentials to access a police database to monitor any investigation into himself, a request to hack a former WikiLeaks associate, the recruitment of Anonymous hackers to target US-based companies (arguably also an attempt to aid in the computer intrusion of classified databases, albeit not US government ones), and the exploitation of WikiLeaks’ role in helping Edward Snowden flee to recruit more hacks including, explicitly, a sysadmin hack of the CIA’s classified databases like the one for which Joshua Schulte has now been convicted. (The existing indictment ends at 2015, before the start of Schulte’s actions, though I would be unsurprised to see a superseding indictment incorporating that hack, leak, and exposure of sensitive identities.)

Are these media outlets upset that DOJ has charged Assange for a conspiracy in which at least six others have been prosecuted, including in the UK? Are they saying that’s what their own journalists do, recruit teenaged fraudsters who in turn recruit hackers for them? Or are these outlets simply unaware of the 2020 indictment, as many Assange boosters are?

Whichever it is, it exhibits little awareness of the import that Judge Vanessa Baraitser accorded the hacking conspiracy to distinguish Assange’s actions from actual journalism.

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking

[snip]

In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Whether editors and publishers at the five media outlets know that Assange was superseded in 2020 or not or just used vague language that could be read, given the actual allegations in the indictment, to suggest that some of them think Assange shouldn’t be prosecuted for conspiring to hack private companies, the language they included about the CFAA charge has led other outlets, picking up on this misleading language (along with the original error about the arrest date), to write at length about an indictment, with a more limited CFAA charge, that is not before Attorney General Merrick Garland. So maybe the NYT, Guardian, Le Monde, Der Spiegel, and El País know about the true extent of the CFAA charge, but by their vagueness, these five leading newspapers have contributed to overtly false claims by others about it.

Finally, the letter repeats WikiLeaks’ narrative about the changing DOJ views on Assange, presenting it as a binary between the “Obama-Biden” and Donald Trump Administrations.

The Obama-Biden administration, in office during the WikiLeaks publication in 2010, refrained from indicting Assange, explaining that they would have had to indict journalists from major news outlets too. Their position placed a premium on press freedom, despite its uncomfortable consequences. Under Donald Trump however, the position changed. The DoJ relied on an old law, the Espionage Act of 1917 (designed to prosecute potential spies during world war one), which has never been used to prosecute a publisher or broadcaster.

This is a story WikiLeaks likes to tell even while incessantly publicizing a a story that debunks it. It is based on a public quote — made in November 2013 by former DOJ spox, Matt Miller, who left DOJ in 2011, about why DOJ wouldn’t charge Assange. But a Yahoo story last year included former Counterintelligence head Bill Evanina’s description of how the US approach to WikiLeaks began to change in 2013, after Miller left DOJ but still during the Obama Administration, based on WikiLeaks’ role in helping Snowden flee.

That began to change in 2013, when Edward Snowden, a National Security Agency contractor, fled to Hong Kong with a massive trove of classified materials, some of which revealed that the U.S. government was illegally spying on Americans. WikiLeaks helped arrange Snowden’s escape to Russia from Hong Kong. A WikiLeaks editor also accompanied Snowden to Russia, staying with him during his 39-day enforced stay at a Moscow airport and living with him for three months after Russia granted Snowden asylum.

In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks, according to Evanina, now the CEO of the Evanina Group.

Years earlier, CNN reported the same thing: that the US understanding of WikiLeaks began to change based on its role in helping Snowden to flee.

It should be unsurprising that the government’s approach to WikiLeaks changed after the outlet helped a former intelligence officer travel safely out of Hong Kong, because at least one media outlet made similar judgments about how that distinguishes WikiLeaks from journalism. Bart Gellman’s book described how lawyers for WaPo believed the journalists should not publish Snowden’s key to help him authenticate himself with foreign governments — basically, something else that would have helped him flee. Once Gellman understood what Snowden wanted, he realized it would make WaPo, “a knowing instrument of his flight from American law.” By his description, the lawyers implied Gellman and Laura Poitras might risk aid and abetting charges unless they refused a “direct attempt to enlist [them] in assisting him with his plans to approach foreign governments.” Like the US government, the WaPo judged in 2013 that helping Snowden obtain protection from other, potentially hostile, governments would legally go beyond journalism.

This is one reason clearly conveying the scope of the CFAA allegations is central to any credible commentary on the Assange case: because Assange’s exploitation of the Snowden assistance is an overt act charged in it. But five media outlets skip both the import of that act and its inclusion in the charges against Assange in a bid to influence the Biden Administration.

This WikiLeaks narrative also obscures one more step in the evolution of the understanding of Assange during the Obama administration, one that is more problematic for this letter, given that it would hope to persuade Attorney General Merrick Garland. Per the Yahoo article that WikiLeaks never tires of publicizing, the US government’s understanding of WikiLeaks changed still more when the outlet partnered with Russian intelligence on its 2016 hack-and-leak campaign.

Assange’s communication with the suspected operatives settled the matter for some U.S. officials. The events of 2016 “really crystallized” U.S. intelligence officials’ belief that the WikiLeaks founder “was acting in collusion with people who were using him to hurt the interests of the United States,” said [National Intelligence General Counsel Bob] Litt.

That’s important because, while the parts pertaining to WikiLeaks are almost entirely redacted, the SSCI Report on responses to the 2016 hack-and-leak makes it clear how central a role then-Homeland Security Advisor and current Deputy Attorney General Lisa Monaco played in the process. You’re writing a letter about which Garland would undoubtedly consult with Monaco. She knows that the gradual reassessment of WikiLeaks was no lightswitch that flipped with the inauguration of Donald Trump. Treating it as one provides one more basis on which DOJ could dismiss this letter. What changed wasn’t the administration: it was a series of WikiLeaks actions that increasingly overcame the “New York Times problem,” leading to expanded collection on Assange himself, leading to a different understanding of his actions.

Here’s why I find the sloppiness of this letter so frustrating.

I absolutely agree that, as charged, the Espionage Act charges against Assange are a dangerous precedent. That’s an argument that should be made soberly and credibly, particularly if made by leaders of the journalistic establishment.

I agree with the letter’s point that, “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” (though these same publishers decided that disclosing the names of US and coalition sources was not in the public interest, and Assange’s privacy breach in doing so was the other basis by which Baraitser distinguished what Assange does from journalism).

But so is fact-checking. So is speaking accurately and with nuance.

If you’re going to write a letter that will be persuasive to the Attorney General, it would be useful to address the indictment and extradition request as it actually exists, not as it existed in 2019 or 2020 or 2021.

And if you’re going to speak with the moral authority of five leading newspapers defending the institution of journalism, you would do well to model the principles of journalism you claim to be defending.

As noted, these outlets corrected the date error after I inquired about the process by which this letter was drafted. I have gotten no on-the-record comments about the drafting of this letter in response.

Welcome to the Jim Jordan and James Comer Look the Other Way Committees, Brought to You By Access Journalism

In an article published 112 days before the November election, Politico included this sentence about all the investigations Republicans planned to conduct if they won the House.

Republicans on the [Oversight] committee plan to hold high-profile probes into Hunter Biden’s dealings with overseas clients, but they also want to hone in on eliminating wasteful government spending in an effort to align the panel with the GOP’s broader agenda.

Politico’s Jordain Carney did not note the irony of planning, almost four months before the election, an investigation into foreign efforts to gain influence by paying the then Vice President’s son years ago, next to a claim to want to eliminate wasteful spending. He just described it as if yet another investigation into Hunter Biden, even as DOJ continued its own investigation, wasn’t an obvious waste of government resources.

Politico’s Olivia Beavers didn’t point that out either in a 1,400-word profile in August on James Comer entitled, “Meet the GOP’s future king of Biden investigations,” the kind of sycophantic profile designed to ensure future access, known as a “beat sweetener.” (Beaver is currently described as a Breaking News Reporter; this profile was posted 3 days after the search of Mar-a-Lago.) She did acknowledge that these investigations were, “directing the party’s pent-up frustration and aggression toward Democrats after years in the minority,” not any desire to make government work or eliminate wasteful spending. But she nevertheless allowed Comer and his colleagues to claim that an investigation into Joe Biden’s son could be credible — that it would somehow be more credible than the bullshit we expect from Marjorie Taylor Greene.

He’s long been known on both sides of the aisle as a sharp and affable colleague, and has the tendency to lean in with a hushed voice, almost conspiratorially, only to crack a well-timed joke that’s often at his own expense. Beyond that personal appeal, though, Comer emphasized it’s his priority to ensure the oversight panel’s work remains “credible.”

That’s a tricky path to tread, given his party’s investigative priorities are still subject to the whims of former President Donald Trump as well as an increasingly zealous conservative base and media apparatus. But Comer’s particularly well-suited to the task, according to more than two dozen House Republicans interviewed. And if he manages to do it right, it could provide a launching pad to higher office — Comer is not discounting a future bid for Senate or Kentucky governor, though that likely wouldn’t occur until after his four remaining years leading the panel.

“I’m not going to be chasing some of these right-wing blogs and some of their conspiracy theories,” Comer told POLITICO in an hour-long interview conducted in a rented RV trailer that his campaign had parked at the picnic. “We’ll look into anything, but we’re not going to declare a probe or an investigation unless we have proof.”

[snip]

And though Comer has said Hunter Biden would likely get subpoenaed in the event of a declined invitation to the committee next year, he doesn’t want to appear trigger-happy with issuing subpoenas, either.

“This isn’t a dog-and-pony show. This isn’t a committee where everybody’s gonna scream and be outraged and try to make the witnesses look like fools,” he said, before nodding at House Democrats’ past probes of the Trump campaign and Russian election interference. “Unlike Adam Schiff, we’re gonna have something concrete, substantive on Hunter Biden or I’m not going to talk about Hunter Biden.”

Beavers didn’t mention the platitudes she included in her August article when she reported, yesterday, on the press conference Comer and Jim Jordan have scheduled for today, less than 24 hours after the 218th House seat for Republicans was called, to talk about the investigation into Hunter Biden.

Reps. Jim Jordan (R-Ohio) and James Comer (R-Ky.) discussed plans to investigate politicization in federal law enforcement and Hunter Biden’s business affairs.

“We are going to make it very clear that this is now an investigation of President Biden,” Comer said, referring to a planned Republican press conference Thursday about the president and his son’s business dealings.

Beavers has let Comer forget the claim, which she printed as good faith in August, that Comer was “not going to declare a probe or an investigation unless we have proof.”

Olivia. Comer lied to you in August. As a journalist, you might want to call that out.

There is no functioning democracy in which the opposition party’s first act after winning a majority should be investigating the private citizen son of the President for actions taken three to six years earlier, particularly not as a four year criminal investigation into Hunter Biden — still overseen by a Trump appointee — continues.

There is no sane argument for doing so. Sure, foreign countries paid Hunter lots of money as a means to access his father. But according to an October leak from FBI agents pressuring to charge the President’s son (one that Comer pitched on Fox News), which claimed there was enough evidence to charge Hunter Biden for tax and weapons charges but which made no mention of foreign influence peddling charges, that foreign influence peddling apparently doesn’t amount to a crime. Nothing foreign countries did with Hunter Biden is different from what Turkey did with Mike Flynn, Ukraine did with Paul Manafort, Israel did with George Papadopoulos, and multiple countries did with Elliot Broidy. Jim Jordan and James Comer not only had no problem with that foreign influence peddling, they attacked the FBI for investigating them.

If James Comer and Jim Jordan really cared about foreign influence peddling, they would care that, since leaving the White House, the Trump family has entered into more than $3.6 billion of deals with Saudi Arabia ($2 billion to Jared’s investment fund, a $1.6 billion real estate development in Oman announced the day before Trump’s re-election bid, and a golf deal of still-undisclosed value; Judd Legum has a good post summarizing what we know about this relationship). Given that the Oversight panel under Carolyn Maloney already launched an investigation into Jared’s fund — like Hunter Biden’s funding, notable because of the obvious inexperience of the recipient — Comer could treat himself and American taxpayers with respect by more generally investigating the adequacy of protection against foreign influence, made more acute in the wake of the opinion in the Steve Wynn case that guts DOJ’s ability to enforce FARA.

With today’s press conference, you will see a bunch of journalists like Olivia Beavers treating this as a serious pursuit rather than pointing out all the hypocrisy and waste it entails as well as the lies they credulously printed during the election about it. You will see Beavers rewarding politicians for squandering government resources to do this, rather than calling them out for the hypocrisy of their actions.

Maybe, if Comer becomes Governor of Kentucky, Beavers will have the inside track on access to him. I guess then it will have been worth it for her.

This Hunter Biden obsession has been allowed to continue already for three years not just because it has been Fox’s non-stop programming choice to distract from more important matters, but because journalists who consider themselves straight journalists, not Fox propagandists, choose not to call out the rank hypocrisy and waste of it all.

For any self-respecting journalist, the story going forward should be about how stupid and hypocritical all this is, what a waste of government resources.

We’re about to find out how few self-respecting journalists there are in DC.

Update: NBC journalist Scott Wong’s piece on the GOP plans for investigations was similarly supine. The funniest part of it is that it treated a 1,000 page “report,” consisting almost entirely of letters Jordan sent, as if it were substantive. I unpacked the details NBC could have disclosed to readers here.

Meanwhile, this Carl Hulse piece doesn’t disclose to readers that Marjory Taylor Greene’s investigation into the jail conditions of January 6 defendants, besides being an attempt to protect potential co-conspirators, also is falsely premised on claims that the January 6 defendants are treated worse (and not better) than other defendants as well as false claims that many of the pre-trial detainees are misdemeanants.

In the Wake of Trump’s Third Electoral Failure, NYTimes Boasts of Hiring a Third Trump-Whisperer

His sanction-worthy misrepresentations of the Igor Danchenko indictment notwithstanding, Jonathan Swan is a good reporter. Indeed, his move to the NYT, which frees him to write like a human being rather than a McKinsey consultant (AKA Axios style), will likely be a significant improvement on his coverage of DC politics.

But it is downright insane that, at a time the GOP and Fox News are at least making noise about ditching Trump, the NYT pitched this hire — and their own political reporting — in terms of Trump.

Our insightful, authoritative and addictive coverage of the election this year drove home an essential truth: The Times’s political team is simply the best in the business.

Take our coverage of Republicans and Donald J. Trump.

We have Maggie Haberman, the dominant reporter of the Trump era, whose prolific, revealing and exclusive coverage has become indispensable to millions of readers. We have Michael Bender, whom Maggie admired as her “fierce competitor” from his days at The Wall Street Journal, and who has delivered exclusives on everything from the former president’s plans to buy Greenland to examinations of how Trumpism remade the Republican party.

And today we are thrilled to tell you that Jonathan Swan, a gifted, dogged and high-impact reporter, will be joining The Times. Jonathan, a national political reporter at Axios, is one of the biggest news breakers and best-sourced reporters in Washington.

Even if you have never met Jonathan, you know his stories. He first reported that Trump would recognize Jerusalem as Israel’s capital, that the U.S. would pull out of the Paris climate deal, that Steve Bannon would be fired and that Paul Ryan would retire from Congress.

Or perhaps you watched his riveting interview with then-President Trump in 2020, which won Jonathan an Emmy (and made his facial expressions famous.) Ben Smith, the former media columnist for The Times, wrote at the time that it was “perhaps the best interview of Mr. Trump’s term.’’

Jonathan’s nine-part written series on the final days of the Trump administration won broad acclaim, and the podcast on which it was based rose to No. 1 on the Apple charts. [my emphasis]

Again, I think the Swan hire is a net good for reporting — but aside from the degree to which Swan is an improvement over Jonathan Martin, who just moved to become Politico’s Politics Bureau Chief — that has nothing to do with the NYT.

Particularly accompanied as it is by Maggie’s multiple efforts to suggest Trump is still The One, the pitch of Swan as a Trump-whisperer — rather than simply as a very good reporter of right wing politics — this announcement commits to keeping Trump (as a politician, rather than, for example, a criminal suspect, something none of these three are very good at reporting) the center of attention.

And it comes in a piece that boasts of election reporting it calls, “insightful, authoritative and addictive,” but which had some rather spectacular failures — particularly with the Fettrman debate and a correct Kansas poll they downplay. While in August NYT acknowledged that a Red Wave might not come, their review of why it didn’t still seems to misunderstand what it means to vote to save democracy. If you wanted to understand the election, the NYT was generally unhelpful, and that’s before you consider its focus on horse race coverage rather than policy.

They think they did good a job, or at least are telling themselves they did!

Why would you boast that your political reporting is “addictive,” anyway? unless you’re proud of the way Trump used Maggie’s work to flood the zone with press clippings that had the effect of obscuring larger crimes.

The NYT’s pitch of a good reporter in terms of Trump comes as other outlets have made hires based on their shitty news judgment that there would be a Republican wave the outlet would want access into. Most famously, as early as March, CBS hired Mick Mulvaney in anticipation of a non-existent Red Wave still 8 months in the future.

[A] top network executive seemed to lay the groundwork for the decision in a staff meeting earlier this month, when he said the network needed to hire more Republicans to prepare for a “likely” Democratic midterm wipeout.

“If you look at some of the people that we’ve been hiring on a contributor basis, being able to make sure that we are getting access to both sides of the aisle is a priority because we know the Republicans are going to take over, most likely, in the midterms,” CBS News’s co-president Neeraj Khemlani told the staff of the network’s morning show, according to a recording of his comments obtained by The Washington Post. “A lot of the people that we’re bringing in are helping us in terms of access to that side of the equation.”

The thing is, these shitty expectations for a Republican landslide may distort coverage going forward, because multiple news outlets paid big money to invest in access to people who lost, most of all into a guy who lost fairly spectacularly three times now.

As they did in 2020, voters gave democracy another lifeline. They voted, affirmatively, for democracy. But it’s not clear the press view protecting democracy, as opposed to protecting access, with anywhere near the same urgency.

Update: Just as I published this piece, I saw this NYT column, which not only continues to make everything about Donald Trump, fails to account for how narrow margins in both houses change this calculus (particularly with regards to its facile claim that, “party leaders are asked to declare their allegiances to Mr. Trump or other potential rivals”), and has this incredible paragraph:

 First there was Mr. Trump’s proposed Muslim ban, and then the attacks on a federal judge’s Mexican ancestry, the “Access Hollywood” revelations late in the 2016 campaign, his public declaration that he trusted Vladimir Putin more than he did American intelligence agencies.More recently, Mr. Trump has waged a two-year misinformation campaign, claiming his 2020 defeat was “rigged.” His supporters stormed the U.S. Capitol in a violent attempt to disrupted the peaceful transfer of power. He now faces investigations into efforts to overturn the election results in Georgia, into his company’s finances and into his handling of classified documents.

It gets the chronology of the first sentence wrong. It calls Trump’s lies about 2020 “misinformation,” not “disinformation.” It claims he tried to “disrupted” the peaceful transfer of power and not prevent it. It suggests any investigation into an attempt to overturn the election is limited to Georgia. The description of the stolen document investigation as one into “handling” of classified documents misstates the crime, but it par for the course in legacy media coverage of that investigation. (And it has a typeset — with the missing space after the period — and a tense error that suggests it was not edited, even ignoring the lack of Oxford comma.)

Trump no doubt wants to keep himself as the center of attention. He no doubt will demand loyalty oaths from people willing to bet he’ll succeed. But if he does succeed — with whatever catastrophic effect on the country — it will be significantly because of editorial decisions the NYT made.

Aileen Cannon Is Stiff-Arming the Press

I’m going to write up what really happened yesterday — as predicted, virtually all outlets I’ve seen simply quoted what Aileen Cannon claimed she had done, rather than describing what she had actually done.

Before I do that, I want to note that Judge Cannon is stiff-arming the same press that is reporting so credulously on her interventions.

Back on August 31, the press coalition that does such things moved to intervene in the case. Most of it was the same boilerplate the coalition uses for all such motions, but they did cite both sides in the matter calling for transparency.

Former President Trump himself has called for greater transparency. See, e.g., ECF No. 1, at pp. 2-3 (noting personal desire for more openness). The Government has stated likewise. See, e.g., ECF No. 1, at pp. 9-10 (detailing Attorney General Merrick Garland’s statements on why the Government sought to unseal certain search warrant records); see also ECF No. 48, at p. 2 n.1 (noting that the Government is “prepared . . . to unseal the more detailed receipt”).

They described that the government did not oppose the motion and Trump took no position on it. They asked to be heard on the matter on September 1.

The next day, Judge Cannon released the detailed inventory the government had submitted (it has since submitted a slightly revised inventory, but didn’t address the press access.

After the government moved to unseal the privilege status report on September 8, the press coalition submitted their own request for unsealing.

Then, after two weeks had elapsed since their initial motion, the press coalition tried again. They pointed out that if anyone wanted to oppose their intervention, the two week deadline to do so had expired. And they noted that the privilege review status report still remained under seal.

The News Media further note that certain records remain under seal in this matter, namely those docketed at ECF No. 40. The News Media understand ECF No. 40 to contain the Government’s submission regarding its Privilege Review Team’s Notice of Status of the Filter Process. The Government filed a motion to unseal that document (less Exhibits A and B to that filing) on September 8, 2022. See ECF No. 71. The News Media filed a further motion to unseal that court record on September 9, 2022. See ECF No. 79.

But Judge Cannon has simply ignored those requests.

There’s an obvious reason she did so: In her September 5 order first appointing a Special Master, she made claims based on that sealed status report. The claims are not only probably false, but she effectively double counted the potentially privileged materials as both potentially privileged and personal. That was the means by which she found that Trump had a possessory interest in the items seized on August 8. So she likely can’t allow that status report to be unsealed, because if it were, her deceit would become evident.

Ironically (or perhaps cynically), Cannon cited the importance of the perception of fairness in that same ruling relying on the status report she won’t let the press see.

A commitment to the appearance of fairness is critical, now more than ever.

[snip]

As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 (“[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system.” (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))).

[snip]

“[E]fficient criminal investigations are certainly desirable,” In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust.

But she only maintains this perception by stiff-arming the press and hiding that status report.

Thus far, she has gotten away with it. Not only isn’t the press calling her out for stiff-arming them, but they continue to quote what she says rather than reporting on what she does.

Update, 10/4: After she ordered the status report unsealed, Judge Cannon granted the motion to intervene prospectively.

The Gaslighter’s Psychiatrist: My Response to Dan Drezner

I wasn’t going to weigh in on the latest kerfuffle over Maggie Haberman. She wrote a book. It reveals things that would have been useful to know years ago. On several key points (such as what Trump did with the Strzok and Page texts), she seems unaware of related details that undermine her claims to exclusive smarts. The kerfuffle is not that interesting to me.

But Dan Drezner said two things in defense of her that are so fascinating, I couldn’t resist.

His most substantive defense of Maggie, bullet point 1, halfway into his post, is that most other politicians would not have remained standing after her stories.

Haberman is a pretty great reporter! Her stories on Trump were chock-full of tidbits that would have destroyed the standing of most other politicians. That Trump remained standing (sort of) after every one of her bombshell stories is a source of frustration to many, but Haberman is hardly to blame for this.

Drezner, who is a news-savvy political science professor with a column, not a journalist, spends much of the rest of his post lecturing about how journalism works.

For all the lecturing, he doesn’t note the most curious journalistic fact about Maggie’s book tour, at least to me: not that she delayed stories for the book, not necessarily that she’s telling stories she could have told in 2016 or 2018 or 2020 but did not, but that none of the teaser exclusives are being published at the NYT. The Atlantic, CNN, Axios, WaPo’s own Trump-whisperer — they’re the ones getting traffic from Maggie’s tidbits this week, not the NYT. After I started this, Joe Klein — better known as Joke Line!! — did a fawning review of the book in the NYT, but that’s not news or even, given that it was written by Joke Line, marginally reliable (though it may nevertheless be the most unintentionally insightful piece on the book).

When James Risen’s book about George Bush’s war on terror abuses was shunned by the NYT, it was a symptom of far more significant problems at the newspaper, problems that had to do with that outlet’s relationship to the Presidency (or perhaps Vice Presidency). Who knows whether that’s the case here. But it does raise questions about whether something is going on that explains NYT’s choice to let their star Trump-whisperer scoop them in virtually all the competing outlets — or whether they even had a choice in the matter.

Like I said, Drezner is a political science professor, so perhaps it was no surprise he missed what I find to be a more interesting curiosity about Maggie’s book blitz.

But he’s a political science professor, and so I would have welcomed some reflection about why he believes most other politicians, but not Trump, would have been destroyed by Maggie’s tidbits. Do Maggie’s strengths and weaknesses as a journalist offer any insight into Trump’s unique resilience? Is she a symptom of it? Or one of the causes? Those seem like utterly critical questions for political science professors as we try to stave off fascism in the United States.

As an access journalist, Maggie rises and falls with the subjects of her access. And this book — the payoff for years of access — is not just a story about Trump. It’s a story of her access, the transactional relationship it entailed, what Trump does with those he has selected to be witnesses to his power.

In the Atlantic excerpt of her book, Maggie famously described Trump likening her to his psychiatrist. She used that as a cue to close the piece with her wisdom about Trump — written in the first person but often, not always, quoting Trump’s direct speech, heightening both her own status as omniscient narrator but also the degree to which she is a manufactured character in her own book.

Then he turned to the two aides he had sitting in on our interview, gestured toward me with his hand, and said, “I love being with her; she’s like my psychiatrist.”

It was a meaningless line, almost certainly intended to flatter, the kind of thing he has said about the power of release he got from his Twitter feed or other interviews he has given over the years. The reality is that he treats everyone like they are his psychiatrists—reporters, government aides, and members of Congress, friends and pseudo-friends and rally attendees and White House staff and customers. All present a chance for him to vent or test reactions or gauge how his statements are playing or discover how he is feeling. He works things out in real time in front of all of us. Along the way, he reoriented an entire country to react to his moods and emotions.

I spent the four years of his presidency getting asked by people to decipher why he was doing what he was doing, but the truth is, ultimately, almost no one really knows him. Some know him better than others, but he is often simply, purely opaque, permitting people to read meaning and depth into every action, no matter how empty they might be.

We’re all like Maggie, omniscient narrator Maggie explains, all just bit players serving as a sounding board to witness him ramble for 20 minutes, all the while cutting us off so he can find the precise word he wants. But maybe not. In the next paragraph, first person Maggie reminds us that everyone else asks her, the sounding board Trump likens to his shrink, to “decipher” him. And this woman who stages herself as a participant in three interviews in this piece, concludes not that she’s got no insight, but that he’s simply opaque, something that we — including Maggie the character portrayed interviewing Trump — project our interpretations of depth onto.

Maggie sells herself as the false promise that you might get to know Trump through his quoted lies and not through his means or his deeds, not through understanding how those lies and the way they are circulated wielded power.

And that, Drezner observes, didn’t end up sticking to Trump the way it would other politicians. That seems like a really important insight.

Which brings me to the other thing Drezner set me off with.

The best explanation of Maggie’s work he offers — and it’s a frightfully good explanation — is the way he starts his post:

When I was curating the Toddler-in-Chief thread on Twitter and adapting it into The Toddler in Chief, I leaned pretty hard on Maggie Haberman’s reporting for the New York Times. I literally said, “Maggie Haberman’s reportage… is all over that thread.”

Drezner was talking about his interminable chronicle of Trump’s tantrums. Each tweet screen capped an example of Trump’s closest aides bitching to someone — and yes, that someone was often Maggie — about how they had to coddle Trump, how they built the entire Administration to cater to Trump’s every mood or emotion. In each tweet, Drezner the political science professor would categorize this report as yet more proof that Trump was not “growing into the presidency.” I took the observation as shorthand for false expectations of normality after Trump’s election, a hope that it wouldn’t be so bad after Trump came to understand the gravity of the office. Drezner contines to cling to that observation, even after Trump’s failed coup attempt.

I found the series funny and occasionally baited Drezner on it. It was a worthy observation about false reassurances certain pundits made about Trump. But it ended up being an inadequate rubric for understanding the damage Trump could do as we all laughed at his ineptitude.

In retrospect there were probably better ways to try to convey the danger posed by Trump than to serially mock him on Twitter, reinforcing the editorial decisions that treated his tantrums but not his actions as the news, even while exacerbating the polarization between those who identified with Trump’s tantrums and those who with their fancy PhDs knew better.

And Drezner’s first impulse, when defending Maggie’s journalism, was to point to the sheer number of times she obtained a hilarious quote that served as another artifact in a never-ending string of news stories that treated Trump’s tantrums as the news, rather than the actions Trump pulled off by training people to accommodate his tantrums.

Those stories, individually and as a corpus, revealed Trump to be a skilled bully. But those stories of Trump’s bullying commanded our attention, just like his reality TV show did, and reassured him that continued bullying would continue to dominate press coverage.

That press coverage, I’m convinced, not only was complicit in the bullying, but also served as a distraction from things that really mattered or levers that we might have used to neutralize the bullying.

It was power by reality TV. And Maggie Haberman was and remains a key producer of that power.

Update: Drezner did a really thoughtful response here. I totally agree with this point:

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

His discussion of how great stories reporting on scandal barely blip in the coverage, however, goes right to my biggest gripe with Maggie. Drezner denies that Maggie’s reporting serves to distract from real crimes.

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

But Maggie’s access and the way Trump’s associates exploit her — gleefully — makes it really easy to play her to kill a story. Her limited hangouts then become the breaking news, rather than the real details disclosed by an investigation.

Both on specific parts of the Russian investigation — such as Paul Manafort’s sharing of campaign strategy in the same meeting where he talked about $19 million in financial benefits to him — and more generally — such as Maggie and Mike Schmidt’s demonstrably false claim that Trump was only investigated for obstruction — stories involving Maggie helped Trump and his associates cover up his criminal exposure.

What Family Rifts at Funerals can Teach Us About Pardoning Presidents

Exhibit A of Step Two Behavior

Watching the coverage of the death of Elizabeth II, two questions seem to be on a constant loop. The first is political: “How will Charles change the monarchy?” The second is personal: “Will the funeral heal the rift between Harry and William/Charles/the rest of the family?” The discussions that follow, between television anchors, reporters, and “royal watchers” have provided me with great amusement. “Oh look: Charles said something nice about Harry and Meghan in his first broadcast after the Queen’s death! Perhaps all is well again!!” The wishfulness of the discussion — “Surely the funeral of their beloved mother/grandmother will bring the family together, and they can heal from the past unpleasantness” — says much more about the hopes that these media folks have and much less about the reality of how a family torn apart acts as a family funeral approaches.

As a pastor for more than three decades, I’ve never done a royal funeral, but I’ve done plenty of regular funerals, including those of matriarchs who had presided over a divided family. Most of the time, what I’ve seen is that either (a) the family members manage to sit on their frustrations with one another for a week or so as the funeral goes forward, and then they return to their earlier fighting, or (b) the funeral intensifies the fighting, as they argue about the decisions made around the funeral itself. Occasionally, the funeral does help to begin a healing process, as folks who have not seen “those monsters” in years are now in the same room for the first time again, and they realize that these other folks aren’t the monsters they have seen them to be in the past. It doesn’t happen five minutes after the burial, but with a willingness to work on both sides, healing is possible. But it sure isn’t the magic “If only Harry and William can sit next to each other at the funeral, everything will be fixed!” that so many commentators are looking for.

Which brings me to the other crazy question I’ve seen popping up more and more often between anchors, reporters, and political pundits. This is the question posed by Chuck Todd that NBC chose to highlight as they tease the Meet The Press interview with VP Kamala Harris that airs in full tomorrow:

Let me try to go to 60,000 feet. What do you say to the argument that it would be too divisive to the country to prosecute a former president?

Earth to Chuck Todd, and anyone else who asks this question: the country *is* deeply divided already.

Giving Trump a pass to “avoid division” is like that scenario (a) at the family funeral, except you are betting that everyone can sit on their frustrations not for a week but forever. Turning the question around — “Would it be too divisive to the country to give a former president a pass for illegal behavior?” — ought to make it clear how silly both questions are.

Step One in dealing with divisions — either at a family funeral or in national politics — is admitting your family/nation is already divided.

As an interim pastor, I work with congregations whose previous pastor has left. Maybe that pastor retired, died, took a new call elsewhere, or was run out of town on a rail. One of the things I often have to help the congregation deal with is conflict, either between the old pastor and the members, or between the members themselves. Whenever I hear “Yes, we had divisions, but now that the old pastor is gone, everything is just fine now” I have to figure out how get them to pull their heads out of the sand. “What’s going to happen when you disagree with your next pastor?” I ask them, knowing that for the immediate future, I am that next pastor. “What do you have to say to the folks around here who loved that old pastor and blame you for running that pastor off?”

Within the House of Windsor, simply coming up with the right seating chart at the funeral for Elizabeth will not wash away the pain that led the Duke and Duchess of Sussex to withdraw from royal duties and decamp to the US. Similarly, pardoning Trump, either by choosing not to prosecute or by an act of President Biden, will not heal the nation either.

What *will* help both the House of Windsor and the United States is to admit that divisions already exist.

Step Two in dealing with divisions, then, is to explore that divided reality. What, specifically, does that painful divided reality look like? What are the presenting issues, that anyone can see at the surface? What are the underlying issues, that lie deeper down, at the heart of the trouble? What are the triggers, that bring all that buried pain out into the open again? How is everyone being hurt by these divisions?

Looking at all that is not easy. It requires a willingness to dig into a painful past, to admit to past bad behavior (your own as well as that of others), and to accept just how bad things have gotten for everyone involved. Until you do that, all you are doing is papering over division and pretending things aren’t that bad.

In the US, the arguments about race and the causes of the Civil War are a perfect illustration of this. So long as a non-trivial part of the country denies that the Civil War was about slavery (“it was the war of Northern Aggression, fought over state’s rights”), our country will never be able to fully deal with how race continues to divide our country today. If you don’t think racism divides our country today, please go back to step one and try again.

Only when the divided congregation or family or nation has done the hard work of examining its own ugly past are they ready to move to Step Three.

Step Three is to look at what you’d like the future to be. What would a healthy House of Windsor look like? How would members treat one another, in ways that are different than what caused the fractures in the past? What would a healthy United States of America look like? How would those with different political views treat one another, in ways that are different from what caused the fractures in the past?

Step Four, then, is to figure out how to get to that future. That’s a conversation about rules, roles, and responsibilities, with unstated assumptions put out in the open and mixed expectations clarified. It’s about crafting behavior that rebuild trust, dignity, and belonging for everyone involved.

The big lesson in all of this is that THERE IS NO SHORTCUT.

You can’t just jump to step four, without doing all the work of the other three steps. You can try, but you’re just sticking your fingers in your ears and singing “La la la – I can’t hear you.” You don’t need to take my word for this. Just look at the House of Windsor.

When the Duke and Duchess of Sussex announced they were leaving their royal roles behind, that was Step One behavior. “Our family is painfully divided.” No more smiling masks, no more pretending all is well, and no more trying to ignore the pain.

When they sat down for their interview with Oprah, that was Step Two behavior. “Here’s what happened, at least from our point of view.”

Ever since then, the royal family had various private conversations to sort things out further, including such things as whether Harry and Meghan would be part of the Platinum Jubilee celebration last summer. (The answers at that time were that they were included in small family gatherings, but not the big public ones.) Now they are having similar conversations around the Queen’s funeral and the coming coronation ceremony that will follow in a few months. This is all Step Three and Step Four behavior.

To the extent that things are getting better for the House of Windsor, it’s because they’ve been working hard at Steps One through Three, not that they simply came together magically at a funeral and jumped to Step Four.

The US political press and political actors could learn a lot from the House of Windsor. Those who worry about prosecuting a past president need to recognize that this doesn’t cause division, but is a step along the way to healing – part of the hard work of Step Two that explores the divided reality in all its painful, ugly depth. The work of the January 6 Committee in the House of Representatives is Step Two behavior, and so is the work of the DOJ to investigate possible criminal behavior of the former president and his minions.

Until we as a nation are willing to honestly look at our ugly reality, we will never heal.