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The BezosPost Struggles with the Boundaries of Press Freedom

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I’m the rare person who argues that ABC’s decision to settle Trump’s lawsuit has, at least, some legal explanation. The judge in the case seemed sympathetic to Trump’s argument. George Stephanopoulos did misstate what the jury–as distinct from Judge Lewis Kaplan–said. ABC would not be the first major media outlet to settle a lawsuit before one of its star personalities had to sit for a deposition; Fox always settles before Hannity gets deposed, for example.

This, from Andrew Torrez and Liz Dye, is a good write-up.

But — ironically — WaPo’s inclusion of the ABC settlement in a story billed in its subhead as a description of how Trump will “will ramp up pressure on journalists” betrays a larger, different problem.

Oh sure, it included that legal explanation.

Continuing with the case might have made public any damaging internal communications to and from Stephanopoulos. If the case made it to trial, it would face a jury in Florida — a red state that Trump carried by 13 points — that could side with the president-elect and award a penalty that could easily exceed the price of a settlement. Appeals to any decision would last for years and risk reaching the Supreme Court, where two sitting justices have already expressed their desire to weaken the court’s landmark decision that has protected the American media’s ability to report aggressively on public figures, especially officials, in the public interest.

But before it got there, it described a bunch of other vulnerabilities, most of which have little to do with journalism.

ABC News’s decision to settle has sent shudders through the media industry and the legal community that represents it. According to three people familiar with the company’s internal deliberations who spoke on the condition of anonymity because they were not authorized to discuss legal strategy, ABC and Disney executives decided to settle not only because of the legal risks in the case but also because of Trump’s promises to take retribution [sic] against his enemies.

[snip]

Disney conducts business in more than 130 countries and employs roughly 225,000 employees — a virtual nation-state with corporate shareholders it is legally obligated to consider when making strategic decisions. The executives reasoned that being in active litigation with a sitting president could hamper the business.

Disney’s ABC operates more than 230 affiliate television stations nationwide, some relying on the Federal Communications Commission for license renewals. Trump has repeatedly talked about pulling the federal licenses from television stations that broadcast news about him he doesn’t like and said last year that he plans to bring the FCC under presidential authority.

Disney and many other media companies are already planning potential merger activity that executives hope passes muster with the antitrust division of the Justice Department, which is poised to be run by Trump loyalist Pam Bondi. Disney pumps out movies and television shows that it needs to appeal to the millions of people who voted for Trump and have already shown themselves willing to boycott products he attacks.

These are:

  • Disney’s obligations to shareholders require that it weigh the impact the lawsuit will have on the larger 225K person company.
  • Its 225 TV stations, and their periodical license renewals, make it vulnerable to the whims of the FCC.
  • Disney has other corporate acquisitions planned that might be subject to antitrust review.
  • Disney’s movies must not only appeal to Trump supporters, but withstand boycotts from them.

Some of this — the need to sell Disney movies and the past tussle with Ron DeSantis — appears in the NYT story that (as WaPo notes) first confirmed Bob Iger’s personal involvement. It is consistent with what others have said about how the lawsuit fits into ABC’s larger corporate perspective.

But it included more, such as the bit about how ABC caved because it has corporate acquisitions that could be vetoed by Pam Bondi’s DOJ.

It’s not the details of this that I find curious.

It’s that a media reporter and a democracy reporter working for Jeff Bezos did not distinguish the things that are journalism (at a stretch, the ABC licenses) from what is not (the action hero movies and other corporate acquisitions).

Indeed, the article generally does not maintain a distinction between its discussion of press freedoms and media corporations. The word “press” appears 13 times (including in the subhead, which the journalists would not have written, and four times in two quotes apiece from cited experts). The word “media” appears 15 times (including in the heading and a caption and several times as an adjective in a title). The word “journalist” shows up jut four times, twice in a discussion of how past presidents (Nixon and Obama) cracked down on journalism, once referring to talking head Chuck Todd.

Without reflection, it treats the plight of giant media companies as the same as its impact on journalism.

The article adds a few new details about why a corporation built off nearly a century of Intellectual Property protection for a cartoon mouse settled a lawsuit. But it doesn’t lay out the obvious implication of the story it tells: that ABC was vulnerable to Trump’s attack not, primarily, because of its journalism — because of what Stephanopoulos said — but instead because the mouse company is not primarily interested in journalism.

That is, it is precisely Disney’s size and scope that rendered it vulnerable to Trump’s threats.

That’s not a novel discovery: that multinational corporations that happen to own journalistic outlets have interests that conflict and undermine their journalism. But as we discuss how to protect journalism while Trump tries to neuter it, it is an important reminder. Even Trump’s lawsuit against the Des Moines Register pits Gannett’s interests against Ann Selzer, though at least Gannett is primarily a journalistic outlet.

For a corporation like Disney — or an oligarch like Jeff Bezos — it’s the other competing interests that may doom the journalism. And journalists need to be clear about that dynamic.

The Self-Satisfied and Often Wrong Media Frenzy

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

So do some of their past errors.

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

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

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

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

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

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

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

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

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

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

Which Came First: The Indemnity Fail or Cohen’s Cooperation Curiosity?

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Michael Cohen is suing Trump Organization for refusing to fulfill an indemnity agreement they had. By itself, the suit offers the promise that these shitholes will rip each other apart in court. Discovery could be awesome, especially since the suit names Eric and Don Jr.

It also may lead other members of the Joint Defense Agreement to question how long Trump will remain loyal to them.

But I’m acutely interested in the timeline the lawsuit draws out for what it says about Trump’s efforts to cover-up his own criminal actions, laid out below. The italicized entries are ones I’ve added to Cohen’s own timeline — many of those dates come from this post on the timeline of the Special Master review of materials seized in the raid of Cohen’s home. The underlined ones are ones in Cohen’s complaint that I’ve editorialized on, to note where someone is known to have told a lie that coordinated with Cohen’s own lies.

As you can see, Trump’s spawn were happy to pay Cohen’s legal bills so long as he continued to tell the agreed upon lies.

But that changed when he got raided in April 2018. As I’ve noted, even though Cohen and Trump succeeded in getting a Special Master appointed to review all the discovery, that appointment didn’t succeed in withholding any of the most damning materials. But the Special Master process did give Trump an opportunity to review what Cohen had — including to identify what he had tape recordings of.

This probably led them to two conclusions. First, because Cohen had taped incriminating conversations (to ensure he’d get paid, Cohen explained in his OGR testimony), he had exposed Trump where he otherwise wouldn’t have been exposed. But because he hadn’t taped the most damning conversations — those implicating the Trump Tower Moscow deal and other Russia-related issues — they could fuck him over with relative impunity.

And that’s about when Trump stopped paying for Cohen’s silence. Notably, Cohen’s filing states that “On June 2018, Mr. Cohen began telling friends and family that he was willing to cooperate with the Special Counsel,” as if there once was a date there. He doesn’t give us that date.

But we can see from the timeline that it happened at a key point in the Special Master review, which is the same time Trump stopped paying for Cohen’s silence.

Two things are unclear to me.

First, as the title suggests, which came first, Cohen’s willingness to cooperate, or Trump’s newfound unwillingness to pay. My bet is it’s the latter, and my bet is it was a response to what they were seeing in the Special Master review. That is, once they decided that Cohen couldn’t hurt them, they cut him free, to sink on his own.

I’m also curious about why Cohen included Papadopoulos, Manafort, Gates, Page, Sessions, and Flynn in his timeline. He is not known to have testimony relating to any of these people — except, perhaps, Manafort. And they weren’t the only ones in Trump’s JDA (Gates has said he was never in the JDA) to have testified in this period (for example, KT McFarland had her first interview).

But it suggests Cohen may have more on the JDA he’s hanging over the others. Which may get litigated in this suit.

Timeline

August 2016: Karen McDougal catch and kill.

October 2016: Stormy Daniels hush payment.

January 13, 2017: SSCI opens Russian investigation.

January 25, 2017: HPSCI opens investigation.

January and February 2017: Cohen seeks reimbursement for hush payment to Daniels.

March 2017: Cohen named RNC Deputy Chair.

May 17, 2017: Mueller appointed.

~May 18, 2017: Cohen meets with Trump and Jay Sekulow, implicitly agree to tell a cover story.

End of May 2017: Cohen lawyers up with McDermott Will & Emery.

May 31, 2017: HPSCI subpoenas Cohen.

July 2017: Trump Organization enters into indemnity agreement in context of joint defense agreement.

August 28, 2017, Cohen sends letter making false statements to HPSCI and SSCI.

September 7, 2017: Don Jr testifies before SJC, repeating Cohen’s false statement on Trump Tower Moscow.

September 19, 2017: Cohen lies to SSCI about Trump Tower Moscow.

September 26, 2017: Roger Stone lies to HPSCI about relaying information about WikiLeaks to campaign, including Trump.

October 5, 2017: George Papadopoulos pleads guilty to making false statements to FBI agents relating to contacts he had with agents of the Russian government while working for the Trump Campaign.

October 25, 2017: Cohen testifies to SSCI, lying about Trump Tower Moscow.

October 25, 2017: First payment, in sum of $137,460, to McDermott.

October 30, 2017: Paul Manafort and Rick Gates indicted by a federal grand jury, including conspiracy against
the United States

November 2, 2017: Carter Page testifies before HPSCI.

November 14, 2017: AG Jeff Sessions testifies before HJC.

December 1, 2017: Mike Flynn pled guilty to lying to the FBI about conversations he had with the Russian ambassador.

December 6, 2017: Don Jr testified before the HPSCI, sustaining Cohen’s lies about Trump Tower Moscow.

December 2017: Don Jr and Eric Trump confirm they will continue to pay Cohen’s attorneys’ fees and expenses.

March 6, 2018: Daniels files a lawsuit against Trump and Cohen in CA seeking to invalidate NDA.

March 26, 2018: Daniels amends lawsuit to allege that Cohen defamed Daniels through public statements he made in or around February 2018.

~March 20, 2018: McDougal files a lawsuit against AMI seeking to invalidate the NDA.

April 5, 2018: Trump says, of payment to Daniels, “You’ll have to ask Michael Cohen. Michael is my attorney. You’ll have to ask Michael.”

April 9, 2018: Cohen raided.

April 9, 2018: Trump states, “So, I just heard that they[, the FBI,] broke into the office of one of my personal attorneys, a good man, and it’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. . . . It’s an attack on our country in a true sense. It’s an attack on what we all stand for.”

April 13, 2018: Challenge to seized materials, leading to appointment of Special Master.

April 21, 2018: Rudy Giuliani associate Robert Costello emails Cohen and tells him he “can sleep well tonight” because he “has friends in high places” to reassure Cohen that the President was not made him. Emails also say,

I just spoke to Rudy Giuliani and told him I was on your team. He asked me to tell you that he knows how tough this is on you and your family and he will make (sure) to tell the President. He said thank you for opening this back channel of communication and asked me to keep in touch.

There was never a doubt and they are in our corner, Rudy said this communication channel must be maintained. He called it crucial and noted how reassured they were that they had someone like me whom Rudy has known for so many years in this role

April 21, 2018: Trump tweets, “The New York Times and a third rate reporter named Maggie Haberman, known as a Crooked H flunkie who I don’t speak to and have nothing to do with, are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip.’ They use . . . non-existent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if . . . it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media!”

April 26, 2018: On Fox & Friends Trump states that Mr. Cohen is a “good person” and “great guy” who handled “a percentage of my overall legal work. . . . He represents me – like with this crazy Stormy Daniels deal he represented me. And, you know, from what I see he did absolutely nothing wrong. . . . I hope he’s in great shape.”

April 27, 2018: Kimba Wood appoints Barbara Jones as Special Master. 

Through May 2018: Trump Organization continues to pay Cohen’s legal fees, totaling $1.7 million.

May 6, 2018: George Stephanopoulos asks Rudy Giuliani, “Are you concerned at all that Michael Cohen’s going to cooperate with prosecutors?” Mr. Giuliani responds, “No. I expect that he is going to cooperate with them. I don’t think they’ll be happy with it because he doesn’t have any incriminating evidence about the president or himself. The man is an honest, honorable lawyer.”

June 4, 2018: Jones issues first report (covering a number of Cohen’s recordings), disagreeing with three claims of privilege. 

June 6, 2018: Trump lawyer Joanna Herndon requests that any challenge to Special Master decision be sealed. 

June 7, 2018: SDNY demands that any legal discussions of challenges be public. 

June 8, 2018: Judge Wood agrees with SDNY, leading Trump to withdraw certain privilege claims. 

June XX 2018: Cohen begins telling friends and family that he was willing to cooperate with the Special Counsel and federal prosecutors in connection with the SDNY Investigation.

June 2018: Trump Organization ceases to pay McDermott’s invoices, without notice or justification.

June 13, 2018: Daniels files a new lawsuit in CA against former attorney, Keith Davidson, and Cohen, alleging that they “colluded” and “acted in concert” to “manipulate” Daniels and benefit Trump.

June 14, 2018: NYAG subpoenas Cohen in Charitable Foundation suit.

June 15, 2018; Trump says, “I haven’t spoken to Michael in a long time. . . . [H]e’s not my lawyer anymore.”

June 22, 2018: Judge Wood finds that Cohen didn’t do much privileged lawyering.

July 2, 2018: Jones begins releasing files to SDNY.

July 2, 2018: Cohen tells Stephanopoulos, “To be crystal clear, my wife, my daughter and my son, and this country have my first loyalty … I will not be a punching bag as part of anyone’s defense strategy. I am not a villain of this story, and I will not allow others to try to depict me that way.”

July 23, 2018: Cohen withdraws privilege claims from 12 recordings. 

July 26, 2018: On CNN Rudy claims of Cohen, “He has lied all his life” and that he is a “pathological liar.”

August 7, 2018: Cohen begins meeting with Mueller. At his first proffer, he lies.

August 21, 2018: Cohen pleads guilty in SDNY.

September 12, 2018: First truthful Cohen proffer with Mueller.

November 29, 2018: Cohen pleads guilty with Mueller.

December 12, 2018: Cohen sentenced.

December 16, 2018: Trump tweets, “Remember, Michael Cohen only became a ‘Rat’ after the FBI did something which was absolutely unthinkable & unheard of until the Witch Hunt was illegally started. They BROKE INTO AN ATTORNEY’S OFFICE!”

January 25, 2019: Cohen asks for reimbursement for $1.9 million in legal fees and $1.9 in restitution.

Update, March 14: Included Robert Costello email.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.