By Dan Kennedy • The press, politics, technology, culture and other passions
It feels like events are accelerating and spinning out of control, and that whatever we’ve been going through with Trump is about to come to an end. I’m specifically not wording this as meaning the end of the Trump presidency, though I’m not ruling it out. My prediction that he’d somehow be gone by Labor Day may yet be on target. These are very strange, ugly, scary days.
Talk about this post on Facebook.
I’ve been trying to find the right context for President Trump’s repugnant response to the neo-Nazi violence in Charlottesville. To say that he failed the moral test of being president doesn’t quite get at it, because he’s failed every moral test ever put in front of him. But this was by far his most important test, so it’s much worse than his previous failures, even if his actual words were no different from what he’s said and hasn’t said before.
His performance Saturday was deliberate and perverse. The most plausible explanation is that he was consciously, specifically trying not to alienate the ignorant racists and white supremacists who comprise a large part of his base. I’m glad that other Republicans, including Ted Cruz, gave evil its proper name. But will they take action against Trump? Not likely.
Many sides. Many sides.
By Jeffrey J. Pyle
For the past several years, police departments in Massachusetts have been routinely denying the public access to “incident reports,” the written narratives of police responses to alleged crimes. Law enforcement agencies used to disclose these reports as a matter of course, sometimes redacting sensitive information. But now, every week, I and other media lawyers at my firm hear from reporters who are being denied basic information about such things as car accidents and drug arrests. The police withhold this information despite the strong presumption in our new, strengthened Public Records Act that all government documents must be made open for public inspection unless a specific exemption makes them confidential.
The damage this excessive secrecy poses to local journalism is well reported, but it’s not only the public’s right to know that can suffer. In some cases, the refusal to release incident reports can threaten the criminal justice system itself, potentially keeping innocent people behind bars and allowing dangerous criminals to remain free in the community. This problem is illustrated by the case of Frederick Clay, who was freed from prison this week after serving 38 years for a crime he did not commit.
Around 4 a.m. on the morning of Nov. 16, 1979, a taxicab pulled up to the Archdale Housing Project in the Roslindale neighborhood of Boston. Three young men exited the cab and then pulled the cab driver, Jeffrey Boyajian, out of the car and onto the ground. Witnesses claimed that two of the assailants were around 6 feet tall, and the other was shorter, about 5 feet 8 inches. All three were wearing dark clothing, possibly including black leather jackets. The men searched through Boyajian’s pockets and beat him as he cried, “Take what you want, but let me live.” After stepping away from Boyajian, the shorter man took out a handgun with his left hand and shot Boyajian five times. The attackers fled on foot.
The police subjected two of the witnesses of the morning’s events to hypnosis to try to help them identify a suspect — a practice that would soon (thankfully) be ruled unlawful. One of these witnesses didn’t see the attack at all — he just thought he’d seen the trio get into Boyajian’s cab earlier that night. The second, a young man with an intellectual disability, saw the attack from a second-story window. Neither witness was sure he could identify anyone before hypnosis, but after it — and after other procedures that would today be deemed too suggestive — both picked out Frederick Clay, age 16.
Clay insisted he was asleep in his room at a foster home on the night of the crime, and his foster mother corroborated his alibi at trial. Clay was also right-handed, not left-handed like the shooter. But the police figured they had their suspect. That’s why they failed to follow up on indications that two other Archdale residents — a left-handed 16-year-old who was 5 feet 8 inches and his much taller brother — may have been the real culprits. On Aug. 19, 1981, a jury convicted Clay of first degree murder, and he was sentenced to life in prison.
After years of fruitless appeals and post-conviction motions, Clay’s case came to the attention of attorneys Lisa Kavanaugh and Jeffrey Harris. Kavanaugh learned of the other suspect and his possible links to the crime, so she sent public records requests to the Boston Police for incident reports of his arrests around the time of the shooting. She was hoping to get mugshots of the suspect, details of his physical appearance, and other evidence showing that he matched the descriptions of the shooter, as well as information about his propensity to engage in robberies like the one that claimed Boyajian’s life.
The initial response of the Boston Police was a flat “no.” In a May 2015 letter, they told Kavanaugh that her request for the report of a 1985 arrest for assault and battery would be denied because she knew the names of the “parties involved” (she’d mentioned them in the requests to help the police identify the reports). and therefore their “privacy” could not be protected through redaction. Also, the police said, the report contained “investigatory material” (even though the investigation was long over) and “arrest information” that is “protected from disclosure” under the Criminal Offender Record Information (CORI) law.
These are the same justifications police departments are now using to deny access to police reports to the media, and they are wrong. As I’ve explained elsewhere, neither the “investigatory” exemption to the public records law nor the CORI statute permit the withholding of entire incident reports. Nonetheless, the Massachusetts State Police recently argued to the supervisor of records for the secretary of state’s office that it does not have an obligation even to try to redact police reports — it can instead withhold them in their entirety whenever they want. (There’s a reason the State Police won the Investigative Reporters & Editors 2015 “Golden Padlock Award,” a national recognition given to the most secretive government agency in the country.)
Kavanaugh didn’t take no for an answer. She asked me to intercede on her behalf with counsel for the Boston Police, and after much back and forth, including a threat of a lawsuit, the police agreed to produce reports for a number of incidents involving the other suspect from the 1980s — while still insisting on redacting his name (as if Kavanaugh didn’t already know it). Those reports led to other reports, and ultimately to a section of Kavanaugh’s and Harris’ masterful 75-page motion for a new trial that addressed the similarity of the other suspect’s appearance to descriptions of the Boyajian attacker and showed his propensity to commit similar crimes.
The Suffolk County DA’s office did its own investigation in response to Clay’s motion, and this past Tuesday — just one week before Clay was to be released on parole — the office assented to his motion and decided not to re-prosecute the case. The DA’s office did so in part because it agreed that the lead on the other suspect should have been pursued. In an emotional hearing in courtroom 906, Judge Christine Roach granted Clay’s motion, ordered his shackles removed, and declared him a free man — after serving 38 years in prison for a crime he did not commit.
The incident reports in Clay’s case played only a small part in his release, but they corroborated an important alternative theory of who may have committed a heinous murder. The Boston Police should be commended for reversing their initial determination and releasing the records. But the problem remains: Absent judicial or legislative intervention, police departments will continue to deny access to incident reports for no good reason, regardless of whether they may shed light on an unsolved case, reveal important trends in law enforcement, or possibly free an innocent person. For the sake of the criminal justice system and the public’s right to know, that practice must end — and soon.
Jeffrey J. Pyle is a partner in the Media and First Amendment Law group at Prince Lobel Tye, LLP, in Boston.
There have been two enormous mistakes in The New York Times this week — errors that completely undermined the premise of the stories.
1. On Monday, Lisa Friedman wrote that government scientists had surreptitiously given her a draft report on climate change because they were concerned that the Trump administration would suppress it. But as Erik Wemple of The Washington Post explained, the report had been publicly available for months, and was even parked at the Internet Archive.
2. On Wednesday, Adam Nagourney reported on an internecine battle among California Democrats that is supposed to tell us something about the struggle between the party’s progressive and establishment wings. It struck me as pretty thin gruel given that we learn both combatants in the bid for party chair, Eric Bauman and Kimberly Ellis, supported Hillary Clinton last year, although Bernie Sanders is supporting Ellis now.
But then we get to the bottom and see this: “An earlier version of this article misstated the candidate Kimberly Ellis supported in the Democratic primary race last year. It was Hillary Clinton, not Senator Bernie Sanders.”
Imagine reading this before the correction was made. It’s a completely different story. It’s not about the continued hostility between Clinton and Sanders supporters at all. As with the climate-change story, it’s the sort of article that might very well not have been published at all if the facts had been clear beforehand.
I know that quite a few copy editors lost their jobs at the Times recently. Could that have something to do with it? Maybe. But the Times still has a larger editing corps than any other paper. Moreover, these kinds of large, conceptual errors strike me as something that have been endemic at the Times for many years. I suspect it has more to do with the culture than the copy editing.
Sounds like a good topic for the public editor. Oh, wait. Never mind.
Previously published at WGBHNews.org.
Few members of the Trump administration have carried themselves with more unctuous sycophancy than Mike Pence. “Thank you, Mr. President, and just the greatest privilege of my life is to serve as vice president to a president who’s keeping his word to the American people,” the former Indiana governor said at that North Korean-style cabinet meeting back in June. At joint public appearances, Pence gazes at President Trump with a mixture of admiration, gratitude, and sheer astonishment at finding himself just a heartbeat away from the presidency.
But now Trump and Pence may be on the outs. The proximate cause is a New York Times story over the weekend reporting the not especially earthshattering news that Pence is keeping his powder dry in case Trump does not run for re-election in 2020. Much of the article, by Jonathan Martin and Alexander Burns, concerns the 2020 ambitions of Republicans such as Ohio Gov. John Kasich, Nebraska Sen. Ben Sasse, and Arkansas Sen. Tom Cotton. But we also learn that Pence has been unusually active in boosting his political prospects, although he “has made no overt efforts to separate himself from the beleaguered president. He has kept up his relentless public praise and even in private is careful to bow to the president.”
This is all pretty unremarkable stuff. Pence himself, though, erupted as though he had been accused of mocking the size of Trump’s hands, calling the Times article“disgraceful and offensive to me, my family, and our entire team” as well as “categorically false.” As Chuck Todd of NBC News tweeted, “Sorta stunned that an obvious point from the NYT piece about a sitting VP’s own ambitions appears to be causing Team Pence such heartburn.”
What makes the Times article so sensitive, needless to say, is the nontrivial chance that Pence will be running for president in 2020 as the incumbent. Although it seems unlikely that Trump will be impeached and removed from office, the inexorable progress of special counsel Robert Mueller’s investigation may well yield the sort of information that could persuade Trump to disappear. It’s a prospect that no doubt gladdens the hearts of congressional Republicans even more than Democrats, since they would be rid of their rage-tweeting ruler and his record low approval ratings. A Pence presidency would give them a chance to start over.
Yet Bill Kristol, a prominent anti-Trump conservative, seems unimpressed with the vice president. Kristol stirred the pot after the Times story was published by tweeting, “It’s bold of Team Pence to plant the front-page NYT story on plans for 2020, then object vociferously. Multi-dimensional chess!” And when Times reporter Maggie Haberman noted that Pence’s over-the-top response would “make one think Pence had committed theft stead of fluffing own brand,” Kristol retorted, “Pence committed the crimes of 1) theft of spotlight from @POTUS and 2) suspicion of less than total subservience to @POTUS even in private.”
Pence committed the crimes of 1) theft of spotlight from @POTUS and 2) suspicion of less than total subservience to @POTUS even in private. https://t.co/VO0br8PL6s
— Bill Kristol (@BillKristol) August 6, 2017
Even before the Times story revealed the extent of Pence’s politicking, the vice president’s standing with Trump may have been more fragile than we outsiders imagine. There is, of course, Trump’s one-way definition of loyalty: he demands total fealty and gives back nothing in return. But Pence has also shown that he is not immune to the scent of blood in the water. As the columnist Richard North Patterson observed in The Boston Globe, Pence — whom Patterson described as “an incompetent ideologue, an obsequious toady, and a self-serving schemer” — made it clear to everyone last fall that he was available for the drafting when it looked like the “Access Hollywood” tape might sink Trump’s campaign.
Thus for all the deference Pence has shown, Trump may regard him as someone who is no better than former chief of staff Reince Priebus, who, as head of the Republican Party, reportedly urged Trump to drop out after the tape was exposed by The Washington Post. As an elected official in his own right, Pence, unlike Priebus, can’t be fired by Trump. But that doesn’t mean Pence’s position is entirely safe.
For anyone of moderate or liberal views, a Pence presidency might be even worse than what we’ve got now. Pence is well regarded on Capitol Hill, especially by House Speaker Paul Ryan. He knows how to handle himself in public. And he is an extreme right-wing ideologue who, you can be sure, would stand a far better chance than Trump of rolling back years of progress on issues such as LGBTQ rights and reproductive choice. The Affordable Care Act would once again be in danger. (On the other hand, Trump would no longer have access to the nuclear codes — no small thing given his unstable behavior.)
If there was any doubt, the Times article reminds us that Pence is ambitious. It remains to be seen whether he is ambitious in the way vice presidents normally are or if he is aggressively trying to take advantage of Trump’s weak position. In either case, he’s not going away. Even if Trump wants him to.
Previously published at WGBHNews.org.
Over the weekend Apple removed software from its Chinese App Store that enabled iPhone users to get around censorship laws in that country. The action was widely portrayed as a blow to those working for freedom and human rights in China. And it seemed especially tawdry following as it did the recent death of Nobel Peace Prize winner Liu Xiaobo while in Chinese custody.
But I would argue that Apple did the right thing. My intention is not to write a love letter to Apple, whose leadership, I’m sure, was motivated more by commerce rather than by conscience. Nevertheless, Apple’s decision was a welcome example of Americans’ dealing with the world as it is rather than as they wish it to be. Our values are not everyone’s values.
Typical of Apple’s critics is New York Times technology columnist Farhad Manjoo, who couldn’t understand why Apple would back down so quickly after successfully fighting the FBI’s demand last year to provide a software key to a terrorist’s iPhone — and, thus, to all other iPhones as well.
“When Apple took a public stand for its users’ liberty and privacy, the American government blinked,” Manjoo wrote. “Yet in China over the weekend, when faced with a broad demand by the Chinese internet authority, it was Apple that blinked.” Yes. But what Manjoo was describing was not situational ethics on Apple’s part. Rather, it was the difference between the United States, a free country ruled by laws, and China, a repressive authoritarian state. In fact, as Manjoo conceded later in his column, Apple would likely have accomplished nothing by pushing back against Chinese officials.
China may show little respect for the rights of its citizens, but it is part of the world community. It makes sense to ban interactions with pariah regimes such as North Korea and Syria, and to prohibit companies from doing business in China in a way that leads to the direct persecution of citizens (something that could in fact arise from Apple’s plan to build a data center in China) or that involves prison labor. But we have no more right to impose our vision of free speech on China than, say, Canada does to insist that we adopt its immigration policies as a condition of doing business.
Besides, even most Western democracies do not have as expansive a view of free speech as we do — yet no one seems to find it outrageous that we accommodate ourselves to their laws when doing business overseas. In the early days of the commercial web, Yahoo was fined $15 million for violating French hate-speech laws that prohibited the display and sale of Nazi memorabilia. Such laws would be regarded in the United States as an outrage against the First Amendment. But of course Europe has a history with hate speech that, so far, we have been fortunate to avoid.
More recently, Google has had to contend with “the right to be forgotten,” as European Union countries — again led by France — have passed laws requiring that certain types of private information be removed from the internet. To comply, Google has set up an “EU Privacy Removal” form that lets users fill out a questionnaire about offending material.
As an online columnist for The Guardian from 2007 to ’11, I had to contend with British libel laws several times. My editors told me that some of my media and political commentary had to be toned down even though it wouldn’t have raised an eyebrow in this country. Indeed, at one time it was common for plaintiffs to engage in “libel tourism,” filing suits in the U.K. because they were more likely to win there than in the U.S. Reforms have made that less of an issue, but it is still far easier to win a libel suit in London than in New York. The difference is that, under the First Amendment, speech about public officials and public figures is protected except when it is egregiously and deliberately false.
All of this, I realize, is rather far afield from the oppression and violence experienced by anyone in China who refuse to conform. These examples do show, however, that American businesses see nothing abnormal about adapting their practices to other countries’ laws and traditions, even on fundamental values like freedom of expression.
In 1940 Sen. Kenneth Wherry, a Nebraska Republican, cast an eye toward China and declared, “With God’s help, we will lift Shanghai up and up, ever up, until it is just like Kansas City.” It was a naive view of American exceptionalism then, and it is expressed today by those who think we can use our economic leverage to bend China to our will.
We can’t, and Apple’s executives recognize that. Despite its repression, China today is freer than it was when Richard Nixon made his historic visit. We can hope that it will be more free in the future. By engaging with the Chinese on their own terms, we might be able slowly help that process along.
Last weekend we had a chance to see “The B-Side,” Errol Morris’ wonderful documentary about the Cambridge portrait photographer Elsa Dorfman. I know Elsa through her husband, Harvey Silverglate, my friend and occasional collaborator. She also once took our family’s picture for a Boston Phoenix article. Our son, Tim, took Elsa’s photo a few years ago when he was attending photography school.
Dorfman is warm and outgoing, and her photos reflect that. Now mostly retired, she is best known for her work with a large-format Polaroid camera that takes 20-by-24-inch photos. And though she is known for her portraits of artists such as Allen Ginsberg and Bob Dylan, she’s also taken photos of literally hundreds of ordinary families who found their way to her studio. In the film, she comes across as intensely proud and self-aware, yet still the same person who once sold her photos out of a shopping cart in Harvard Square.
Here’s some backstory that the film does not explain: Several years ago Morris wrote a book about Dr. Jeffrey MacDonald, the former Army doctor serving a life prison term after being convicted of murdering his pregnant wife and young children. The book brought Morris into contact with Silverglate and Dorfman, as Silverglate is a member of MacDonald’s legal team. As Morris’ book, “A Wilderness of Error,” clearly shows, MacDonald did not receive a fair trial and may actually be innocent. (I reviewed the book for BookForum.)
Morris is a master storyteller, and Dorfman is an ideal subject. As Richard Brody wrote recently in The New Yorker, Dorfman is “a remarkable presence, a cinematic character whose comments distill a lifetime of wisdom, self-awareness, frustration, and survivor’s pride.” Go see it.
I think the key to understanding President Trump’s ban on transgender troops is contained within a much-discussed Politico story. According to the article, by Rachel Bade and Josh Dawsey, Trump was trying to appease right-wing House members who wanted Trump to rescind funding of transgender-related medical treatment for military personnel. In return, those House members would support funding for the wall that Mexico is not going to pay for.
Now, refusing to pay for medical care is bad enough. But Trump went much further than anyone expected by banning transgender people from the military altogether. Here is the key excerpt from Bade and Dawsey’s story:
“This is like someone told the White House to light a candle on the table and the WH set the whole table on fire,” a senior House Republican aide said in an email. The source said that although GOP leaders asked the White House for help on the taxpayer matter specifically, they weren’t expecting — and got no heads up on — Trump’s far-reaching directive.
So what happened? My guess is that Trump, raging at the world and lacking any understanding of the issues, didn’t realize that right-wingers for the most part were not asking him to ban trans troops. As you can see from this Washington Post analysis by James Hohmann, the most conservative Republicans from the most conservative parts of the country are speaking out against the ban. Trump literally didn’t know what he was doing.
And it wouldn’t be the first time. During the campaign, you may recall, Trump said that women who undergo abortion should face “some form of punishment,” as CNN reported. Leaders of the anti-abortion-rights movement freaked out, waving their arms frantically and insisting that they don’t say things like that anymore. Trump backed down. To use a word that is quickly becoming overused, Trump is strictly transactional. He made his comments not out of any deeply felt sense that abortion is always wrong but to cement his ties to the religious right. And he tweaked his position once he realized he was off-key.
So it is, I suspect, with the transgender ban. This was not deeply thought-out; by all accounts, it wasn’t thought-out at all. It was Trump on Twitter, doing what he does. He blundered into going much further than anyone other than Tony Perkins (New York Times article) was asking him to go, and now he — and all of us — have to live with it.
Let me close on a less what-does-it-mean-politically note. Wednesday turned out to be one of the worst days of the Trump presidency — perhaps the worst since he announced the first version of his ban on Muslims trying to enter the country. We should all feel sick and appalled at Trump’s casual cruelty and his willingness to indulge hatred if he thinks it will give him some momentary advantage.
Love your neighbor.
Previously published at WGBHNews.org.
Note: On Thursday, July 27, the BSA’s chief scout executive, Mike Surbaugh, issued a strong statement about Trump’s speech that said in part, “We sincerely regret that politics were inserted into the Scouting program.” Read the whole thing here.
Donald Trump contaminates everything he touches. So no one should have been surprised when his speech at the Boy Scouts’ national jamboree took a nasty turn into partisan politics. After all, it’s always about him.
But there is a larger issue at stake here: the fate of the Boy Scouts of America, which has been slowly evolving out of its discriminatory past. As an Eagle scout, a former scoutmaster, and the father of an Eagle scout, I really care about the future of the organization. And I’m concerned that President Trump’s toxic rhetoric will stain a movement already seen by many as anachronistic.
Make no mistake — Trump’s speech on Monday went well beyond the bounds of anodyne patriotism that has characterized remarks delivered to the scouts by past presidents from Franklin Roosevelt to Barack Obama. As he has repeatedly, Trump dwelled on his Electoral College victory map, which was “so red it was unbelievable.” He derided the “fake media,” claiming they would play down the size of the crowd — as though (as The Washington Post put it) the 30,000 scouts had turned out for him rather than the jamboree. He boasted that he’d bring “Merry Christmas” back into the lexicon, ignorant of scouting’s embrace of all religious faiths. He put in a plug for “killing this horrible thing known as Obamacare.”
And yes, the scouts booed Trump’s reference to Hillary Clinton and chanted “USA! USA! USA!” a few times. But scouting is a pretty conservative movement, and I have no doubt that many of those in attendance were Trump supporters. Those of us in Blue New England are outliers within the BSA, and the president’s actions were not helpful to the idea that scouting is for everyone, not just for kids in red states. Indeed, based on some of the reaction I’ve seen on Twitter, many people already believe the worst about the Boy Scouts, and they saw Trump’s remarks as confirmation of their stereotyped views rather than as a transgressive outburst.
Let me also put to rest the notion that Trump shouldn’t have been invited. Scouting has always had a close relationship with the federal government. It has held a congressional charter since 1916. The president of the United States is also the honorary president of the BSA. My Eagle card is signed by Richard Nixon; my son’s by George W. Bush. The problem isn’t that Trump was invited. It was solely in what he said. Now he has put the national organization in an impossible position. If the leadership fails to go beyond the boilerplate statement it has already issued, then it will take flak from Trump critics. But if it makes it clear that Trump’s remarks were inappropriate, then it will alienate its largely conservative membership. This is what Trump does — he divides.
The sad thing is that the BSA has come a long way in recent years. Seen as a force for progressive values during the civil-rights era, scouting later fell under the sway of cultural and religious conservatives. For years, the movement was known mostly for discriminating against gay boys and adult leaders. The ban was upheld by a 5-4 Supreme Court decision. As I wrote in The Boston Phoenix in 2001, that decision was misguided because it failed to take into account the reality that a small number of unelected leaders were setting policies opposed by many within the organization.
Gradually, the BSA dropped its ban, first allowing openly gay scouts, then gay leaders. It is the height of irony that Trump’s secretary of state, Rex Tillerson, was perhaps the key scouting official responsible for pushing the national organization to end its discriminatory ways. That led the Mormon Church, a major force within scouting, to pull out of two programs for older boys. Unfortunately, scouting continues to discriminate against atheists, as its admirable embrace of boys of all faiths does not extend to those of no faith.
Will scouting endure? Long before Trump’s speech, that was a question with no certain answer. Membership has been declining for years. Uniforms, camping, and hiking have long since given way to youth sports and other activities. The great thing about scouts is that it accommodated all kinds of kids, including those who didn’t fit in elsewhere. To their credit, scouting’s national leaders have slowly been moving into the 21st century. Trump’s speech, though, was a huge setback, and it’s going to take a long time for the movement to recover.
… And you can listen to the results on SoundCloud. Thank you to Jeff Semon and Ed Lyons for inviting me onto “The Lincoln Review.” We talked for more than an hour about media and politics. But it was OK, because we were all drinking. You can subscribe to their podcast on iTunes. I understand that video will be up in a few days as well. God help us.