Maura Healey – Media Nation

The media, the president and what we should have known about his age-related issues

George Stephanopoulos interviews President Biden in 2021. White House photo.

Right now we’re all waiting to see how President Biden does in his interview with George Stephanopoulos. Obviously Biden has to come off as coherent, and even then it’s not going to stop calls for him to step aside in the midst of donor panic and declining poll numbers. The New York Times and The Boston Globe are reporting that Massachusetts Gov. Maura Healey has been telling associates that Biden’s candidacy is “irretrievable.”

Given the terrible position in which we find ourselves, it’s worth asking whether the media should have covered Biden differently over the past few months. My Northeastern University colleague Jill Abramson, a former executive editor of the Times, thinks so, writing a commentary for Semafor that begins:

It’s clear the best news reporters in Washington have failed in the first duty of journalism: to hold power accountable. It is our duty to poke through White House smoke screens and find out the truth. The Biden White House clearly succeeded in a massive cover-up of the degree of the President’s feebleness and his serious physical decline, which may be simply the result of old age. Shame on the White House press corps for not to have pierced the veil of secrecy surrounding the President.

Richard Tofel, a former top executive at The Wall Street Journal and ProPublica, has been reminding us on social media that he’s been calling for greater scrutiny of Biden’s age since last October. Here’s part of what he said back then:

Is Biden speaking more slowly because he’s conscious that his lifelong stutter might now be taken for cognitive frailty, or because he has no choice? Is he walking more cautiously because he knows the political peril of falling, or because he can no longer go any faster? If you think you know the answers to those questions, what is your evidence? I know of very little, either way.

My own sense is that there was actually quite a bit of reporting on Biden’s age even before his disastrous June 27 debate with Donald Trump, but that it was discounted for a variety of reasons. When special counsel Robert Hur called Biden “a sympathetic, well-meaning, elderly man with a poor memory,” that got plenty of coverage. At the same time, though, Hur was arguably engaging in prosecutorial misconduct by adding his own commentary while not bringing charges against Biden — which, in turn, reminded people of then-FBI Director James Comey trashing Hillary Clinton in 2016 over the way she handled her emails even while concluding she had not committed a crime.

The Wall Street Journal published an in-depth story on Biden’s age-related issues in early June, but that was widely dismissed because of the Journal’s reliance on partisan Republican sources, including former House Speaker Kevin McCarthy, who had previously told aides privately that he found the president to be sharp in White House meetings.

The Times itself has spent months obsessing over what voters think about Biden’s age, which in turn brought about accusations of both-sides-ism and false equivalence given that Trump is nearly as old and arguably more addled as well as an insurrectionist and a convicted criminal who’s been found liable for sexual assault.

Brian Stelter has written an excellent, deeply reported overview for Vox. Here’s the nut:

The national media wasn’t dodging the story: The biggest newspapers in the country published lengthy stories about Biden’s mental fitness. The public wasn’t in the dark about Biden’s age: Most voters (67 percent in a June Gallup poll) thought he was too old to be president even before the debate. But questions about Biden’s fitness for office were not emphasized as much as they should have been.

That’s the third option: The stories should have been tougher, the volume should have been louder.

Then, too, journalists are not unaware of what we’re facing. A second Trump term could amount to nothing less than the end of democracy in this country. Surely there was a sense that as long as Biden wasn’t too impaired, it wasn’t worth the risk of throwing the election into chaos and risking Trump’s return to office — this time as the head of the authoritarian right.

If Biden could somehow make it across the finish line this November, so this thinking went, it would be up to God and Vice President Kamala Harris after that. I definitely count myself among those observers who dismissed concerns about Biden’s age, partly because I thought they were overblown, partly because I feared the consequences of removing Biden from the top of the ticket.

Unfortunately, we’ve got chaos anyway.

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The latest Green Line Extension problems are an outrage

Green Line trolley at the new Tufts/Medford station. Photo (cc) 2022 by Dan Kennedy.

It’s hard to describe how outrageous it is that the brand-new, $2.3 billion Green Line Extension was built with miles of tracks that are too close together. Bruce Mohl writes at CommonWealth:

At a confusing press conference on Thursday that raised almost as many questions as answers, MBTA General Manager Phillip Eng said it appears the prefabricated plated rail ties for the Green Line extension were made to incorrect specifications and then installed. A plated rail tie consists of a wooden tie with steel plates on either end for holding the rail in place.

Gov. Maura Healey blamed her predecessor, Charlie Baker, which is a pretty safe call — the GLX was built on his watch, so surely someone in his administration was responsible. The Boston Globe reports that Eng also said his underlings didn’t inform him of the problem in a timely manner. Let the firings begin.

One thought that occurs to me is that Baker canceled a more expensive version of the GLX approved by his predecessor, Deval Patrick. It would not surprise me if Baker let an unqualified contractor sweet-talk his administration into doing the job on the cheap.

I don’t usually take the GLX because the Medford/Tufts terminus is too far from my house and is s-l-o-w. Instead, I generally take the commuter rail to North Station and then the Orange Line. But the GLX can be valuable as a backup, and of course a lot of people depend on it. This is literally unbelievable, except that it’s the MBTA.

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The Mystic Valley Charter School, winner of a 2017 Muzzle, is back to its old tricks

Attorney General Andrea Campbell. Photo (cc) 2022 by Dan Kennedy.

The Mystic Valley Regional Charter School — recipient of one of the all-time most outrageous New England Muzzle Awards back in 2017 — is in trouble once again, this time for its insistence on conducting the public’s business behind closed doors. Adam Gaffin of Universal Hub reports that state Attorney General Andrea Campbell’s office has asked a judge to order that the taxpayer-funded school produce public documents it has refused to hand over despite requests at the local level as well as repeated demands by Secretary of State Bill Galvin.

🗽The New England Muzzles🗽

School officials claim they do not have to comply because Mystic Valley, based in Malden, doesn’t meet the definition of a “public school,” even though state law specifically describes charter schools as such. In any case, they say they won’t produce the records until a judge orders them to do so, notwithstanding the fact that the state public records law empowers the secretary of state to enforce the law.

The records, sought by Malden News Network, a local journalism outlet; Commonwealth Transparency, an advocacy group; and Malden mayoral candidate Lissette Alvarado cover a wide range of issues, including payroll, contracts, conflicts of interest, accountings of school income, copies of emails, and documents regarding Boston Globe stories about the school.

Now, to get back to that 2017 Muzzle Award from GBH News. During the 2016-’17 school year, Mystic Valley administrators began enforcing a dress-code prohibition against hair extensions, worn most often by Black female students. After parents complained about the clearly racist policy, school officials doubled down, leading to reporting by The Boston Globe and other news organizations. Yet the school refused to back down until then-Attorney General Maura Healey intervened.

That stiff-necked refusal to acknowledge its own wrongdoing obviously hasn’t changed over the years. When a judge finally orders the school to produce public documents, it will be interesting to see whether Mystic Valley complies — or if, instead, its administrators decide the judge somehow improperly claimed jurisdiction, or was wearing the wrong-colored robe or something.

If you want to read the full complaint, Adam’s posted it at the link above. The Boston Globe reports on Campbell’s lawsuit here. And Malden News Network has posted an item on its Facebook page.

Healey’s ambivalent stand on public records recalls her Muzzle Award-winning past

Gov. Maura Healey. Photo (cc) 2013 by ZGreenblatt.

Andrew Quemere, a journalist who doggedly follows open-government issues in Massachusetts at his newsletter, The Mass Dump, reports that newly minted Gov. Maura Healey may prove to be not quite the champion of Beacon Hill transparency that she claimed she would be.

No one should be too surprised — she is, after all, a two-time winner of the New England Muzzle Awards, a feature I wrote for 25 years for GBH News and, before that, The Boston Phoenix that tracked outrages against free speech. I’ll get to that. But first, the latest. Quemere’s item begins:

Massachusetts Governor Maura Healey’s administration said Monday that it will not release records from past administrations. The decision means that a vast amount of vital information about state government — including former Governor Charlie Baker’s response to the COVID-19 pandemic, the repeated safety problems at the Massachusetts Bay Transportation Authority, and the sprawling overtime-fraud scandal at the State Police — will remain secret.

Some background: Baker and previous governors declared that the state’s public records law did not cover either them or their immediate staff. Indeed, the notoriously weak law also doesn’t cover the legislative branch (see this 2020 report by Northeastern journalism students) or the judiciary, meaning that the only governmental groups that have to comply are cities, towns, the state’s executive agencies and quasi-independent authorities. (And county government, to the extent that we have county government, which we pretty much don’t.)

Healey told GBH News in December that she would end the exemption for her office — but then reversed herself, explaining, essentially, that she would take it on a case-by-case basis. Moreover, the Healey administration refused to provide Quemere with records pertaining to police and law enforcement dating back to Baker’s time in office, saying that the new, more open policy she has adopted is not retroactive.

So: Healey’s new policy of openness does not cover previous administrations; and we’re not clear what the new policy really means.

As for the Muzzle Awards, the most pertinent is from 2018, when she was singled out for upholding rulings that public information should, in some cases, remain private. Healey’s secretive approach to the people’s business when she was the state attorney general was revealed by then-Boston Globe reporter Todd Wallack, now with WBUR Radio. As I wrote at the time:

Wallack’s most startling finding: Healey’s office had upheld a ruling by the Worcester district attorney that records pertaining to the 1951 murder of a state trooper should not be made public. Healey’s decision reversed a ruling by Secretary of State Bill Galvin’s office and denied a friend of the murder victim the opportunity to follow up some leads on his own. The friend has since died.

Wallack documented numerous other examples of Healey’s penchant for siding with the secret-keepers, including her decision to appeal an order that the state police provide the Globe with dates of birth for state troopers. That would have made it possible for the paper to examine the driving records of officers who had been involved in motor-vehicle accidents. Robert Ambrogi, a First Amendment lawyer and the director of the Massachusetts Newspaper Publishers Association, told Wallack: “I would expect more based on the promises she has made about open government.”

Her previous Muzzle was less germaine: I criticized her in 2015 for filing a formal defense of “a 1946 state law criminalizing political lies aimed at influencing an election.” Go ahead. You tell me what what’s a lie, what’s a mistake and what’s political hyperbole. I wrote:

As the libertarian Cato Institute was quoted as saying in an article by the State House News Service, it can be “incredibly difficult to assess the truth of a politician’s claims, especially in the chaos of an election campaign.” A number of advocacy groups and media organizations opposed Healey, including the ACLU of Massachusetts and the New England First Amendment Coalition.

We live in a time of intense political polarization, but there is an issue that unites Democrats and Republicans: the intense desire to conduct the public’s business out of public view. Let’s hope that Gov. Healey’s first steps aren’t a sign of things to come.

Baker’s had seven years to fix the T. It’s worse than ever.

A Twitter thread on the decline and fall of the MBTA under Gov. Charlie Baker:

More than seven years ago, after Snowmaggedon brought the #MBTA to its knees, Gov. Baker was given unprecedented authority to fix it. We now know he didn’t use that opportunity wisely or well. (1/x)

If there was an assessment made of what work needed to be done, it was obviously inadequate. We’ve seen one issue after another come up during the past year, and especially the past few months. (2/x)

With proper planning, much of the work could have been done during the pandemic shutdown. Instead, we’re now dealing with Orange and Green Line closures just as employers are trying to entice their workers into returning to the office. (3/x)

It’s not all Baker’s fault. The last governor to take issues involving the T seriously was Michael Dukakis. There’s no political gain in fixing the T because the benefits are invisible. (4/x)

Baker does deserve credit for saving the GLX after Deval Patrick nearly gold-plated it into oblivion. Overall, though, Baker failed, and his term is ending with the T in a state of collapse. (5/x)

Notably silent: Maura Healey, who’s as sure a bet to be elected governor as you get in politics. This is not a time for caution. What is her vision for the T? If she remains silent, then she won’t have a mandate to carry it out. (6/x)

Like many, I depend on the MBTA to get to work and elsewhere. I use commuter rail, subways and buses. I really have no good alternatives, so I’m being patient. What choice do I have? But all of this is incredibly dispiriting. (7/7)

Healey’s ascension coincides with the dispiriting collapse of politics in Mass.

Maura Healey. Photo (cc) 2015 by Charlie Baker. Yes, that’s what the photo credit says. Yes, I realize that’s Baker on the left-hand side of the frame.

State Sen. Sonia Chang-Díaz’s withdrawal from the gubernatorial race on Thursday underscores the astonishing collapse of politics in Massachusetts. This is a state where politics has traditionally been a year-round sport. In the past, an open governor’s seat would have attracted multiple candidates. Instead, Attorney General Maura Healey will run uncontested for the Democratic nomination and will probably beat either of the two Republicans who are running.

The Axios Boston headline this morning puts it this way: “AG Healey on track to be Massachusetts’ first elected female governor.” In June. Nearly five months before Election Day.

Contrast what’s happening today with 1990, when Gov. Michael Dukakis retired. Three prominent Democrats sought the nomination — Boston University president John Silber, Attorney General Frank Bellotti and Lieutenant Gov. Evelyn Murphy. Although Murphy ended up withdrawing, Silber beat Bellotti in a closely fought race. Silber, in turn, was defeated by former federal prosecutor Bill Weld, who won the Republican nomination by beating House Republican leader Steve Pierce.

More recently, in 2006, a relatively unknown former Justice Department official, Deval Patrick, won the Democratic primary for governor with less than 50% of the vote against businessman Chris Gabrieli and Attorney General Tom Reilly. That November, Patrick defeated Lt. Gov. Kerry Healey and several independent candidates, the most prominent of whom was the late businessman Christy Mihos.

So how did Healey end up running unopposed for the Democratic nomination? There are some unique factors at play. Republican Gov. Charlie Baker took his time in announcing he wouldn’t seek another term, which gave a significant advantage to the well-known, well-funded Healey. Former Boston Mayor Marty Walsh decided he’d rather stay in Washington than run for governor.

I worry, though, that we’re all losing interest in politics. Healey is first-rate, smart, personable and progressive. After her, though, who? U.S. Rep. Ayanna Pressley? Boston Mayor Michelle Wu? Maybe. Both are at a relatively early stage of their political careers — especially Wu — so perhaps we just have to give it time.

As for the Republicans, who have produced a slew of governors over the years to act as a moderating force against the dominant Democrats, the situation is sad indeed. Two Republicans are running for governor this year. One, state Rep. Geoff Diehl, is a full-blown Trumper. The other, businessman Chris Doughty, is trying to position himself as a Baker-style moderate — but he opposes abortion rights and has taken stands that suggest he supporters deeper tax cuts than Baker would support.

For those of us who’ve been following Massachusetts politics for years, it’s a dispiriting time. I hope it’s just temporary.

Judge extends censorship in plastic-handgun case

In 1931, the U.S. Supreme Court ruled in Near v. Minnesota that prior restraint — censorship — was permissible only to prevent serious breaches of national security, incitement to violence, and the publication of obscenity. It was Near to which the court looked in 1971 when it ruled that The New York Times and The Washington Post could resume publishing the Pentagon Papers, the government’s secret history of the Vietnam War.

Yet the rise of new doomsday technologies has put a crimp in Near. The latest example: efforts by a radical activist named Cody Wilson to publish blueprints on the internet describing how to use a 3D printer to produce an untraceable plastic gun. As I wrote for WGBH News several weeks ago, the case, based in Washington State, was reminiscent of one involving a left-wing magazine called The Progressive, which in 1979 sought to publish an article describing how to build a hydrogen bomb. In both instances, judges temporarily banned publication. The Progressive eventually published its article, and yet somehow we’re all still here.

Unfortunately U.S. District Court Judge Robert Lasnik is allowing the muzzling of Wilson to drag on, ruling on Monday that the temporary restraining order he had put in place on July 31 would not be lifted until the case has been resolved. According to The New York Times, Lasnik ruled that Wilson’s First Amendment rights “are dwarfed by the irreparable harms the states are likely to suffer if the existing restrictions are withdrawn and that, over all, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”

And yet, the Times continues, the plans Wilson wants to publish are already leaking out here and there, thus showing the futility of censorship.

Massachusetts Attorney General Maura Healey, who joined the suit, is celebrating Judge Lasnik’s ruling. Healey, I should note, is a two-time winner of a New England Muzzle Award from WGBH News for her less-than-vigorous support of the First Amendment.

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Muzzle Awards follow-up: Two victories for free speech

Among the New England Muzzle Award recipients I recognized last month at WGBHNews.org were Massachusetts Attorney General Maura Healey, for backing a ridiculous 70-year-old state law that banned political lying, and New Hampshire State Rep. Timothy Horrigan, a leader in the effort to outlaw the scourge of so-called ballot selfies.

This month, the courts agreed on both fronts.

According to Zack Huffman of Courthouse News Service, the Massachusetts Supreme Judicial Court struck down the anti-lying statute, with Justice Robert Cordy writing:

We conclude that [the statute] cannot be limited to the criminalization of fraudulent or defamatory speech, is neither necessary nor narrowly tailored to advancing the commonwealth’s interest in fair and free elections, and chills the very exchange of ideas that gives meaning to our electoral system.

It is now safe for the presidential candidates to campaign in Massachusetts.

In New Hampshire, U.S. District Judge Paul Barbadoro ruled that the ban on posting photos of a marked ballot could not be justified even though it was supposedly designed to eliminate bribery, with the selfie providing the proof needed that the person taking the bribe had voted as instructed.

The problem, Barbadoro noted, was that such fraud had not actually taken place in at least the past 100 years. In addition, Barbadoro ruled that the law “deprives voters of one of their most powerful means of letting the world know how they voted,” according to an account of the decision by Jeremy Blackman of the Concord Monitor.

The moral of these stories: Do not mess with the Muzzles.

WGBH News illustration by Brendan Lynch.

Also published at WGBHNews.org.

Presenting the 18th annual New England Muzzle Awards

From fast-food chicken chain Chick-fil-A to Massachusetts Attorney General Maura Healey, everyone, it seems, has got a problem with free speech.

Please have a look at the 18th edition of the New England Muzzle Awards — launched in 1998 at the late, great Boston Phoenix and now hosted exclusively by WGBHNews.org. The Campus Muzzles, as always, are helmed by civil-liberties lawyer Harvey Silverglate.

Arrest records and mug shots are not secret under state law

By Jeffrey J. Pyle

Thanks to The Boston Globe’s Todd Wallack, we learned last week that the supervisor of records, charged with enforcing the Massachusetts public records law, has permitted police departments withhold arrest reports and mug shots from the public in their “discretion.” Unsurprisingly, police departments have exercised that “discretion” to shield the identities of police officers arrested for drunken driving while publicizing the arrests of other Massachusetts residents for the same crime.

Yesterday, Secretary of State William Galvin took to Jim Braude’s “Greater Boston” show on WGBH-TV (Channel 2) to defend the rulings. He pointed out that he had previously ruled that arrest reports to be public, but said he had to back down because another agency, the Department of Criminal Justice Information Systems (DCJIS), told him the records are secret under the “criminal offender record information” (CORI) statute. Former attorney general Martha Coakley shared that view, Galvin said, and the new attorney general, Maura Healey, has tentatively agreed.

But are they correct? Does the law allow the police officers to decide which arrest reports do and do not get released? The answer, thankfully, is no.

First some quick background. The public records law creates a presumption that all government records are public. Only if a specific, listed exemption applies can the government withhold documents, and those exemptions are supposed to be construed narrowly. Galvin relies on the exemption for records “specifically or by necessary implication exempted from disclosure by statute,” here, the CORI law. The CORI law does impose certain limits on the disclosure of “criminal offender record information,” but it limits that term to information “recorded as the result of the initiation of criminal proceedings and any consequent proceedings related thereto.”

The word “initiation” is important. As late as 2010, Galvin’s office held the commonsense view that a “criminal proceeding” is initiated with the filing of a criminal complaint. Arrest reports and mug shots are generated before criminal complaints are filed, so they’re presumptively public. But in 2011, the DCJIS (which administers the state’s CORI database) told Galvin it believed “initiation of criminal proceedings” means “the point when a criminal investigation is sufficiently complete that the investigating officers take actions toward bringing a specific suspect to court.” That necessarily precedes arrest and booking, so all arrest reports and mug shots are covered by CORI. This “interpretation” is now contained in a DCJIS regulation. Another regulation says that police can release CORI information surrounding an investigation if they think it’s appropriate to do so.

In the common parlance, however, “criminal proceedings” occur in court, and they begin with the filing of a criminal charge. We don’t typically think of an arrest without charges as involving a “proceeding.” Galvin seems to agree — his office’s rulings have said only that DCJIS believes “initiation” occurs earlier — but he has thrown up his hands and deferred to this odd “interpretation” of the CORI statute.

The thing is, Galvin isn’t bound by what DCJIS says. The public records law says that the supervisor of records is entitled to determine “whether the record requested is public.” The DCJIS’s regulation adopting this view is irrelevant, too, because as noted above, the public records law only exempts documents “specifically or by necessary implication exempted from disclosure by statute.” The Supreme Judicial Court ruled in 1999 that the “statutory” exemption doesn’t extend to mere regulatory enactments “promulgated under statutory authority,” even “in close cooperation with the Legislature.” Despite this ruling, just Wednesday, Galvin’s office again refused to order state police officer mug shots to Wallack on the ground that “[b]y regulation,” — not statute — they are exempt CORI documents.

Wallack’s reporting has led us to a momentous Sunshine Week in Massachusetts. We’ve seen unusual, coordinated editorials in major Massachusetts newspapers condemning the rulings, a letter published in the Globe, the Boston Herald and GateHouse Media newspapers (including The Patriot Ledger of Quincy and The Herald News of Fall River) signed by members of the Northeastern Journalism School faculty, and extensive coverage on the normally neglected subject of government transparency.

To his credit, Galvin is calling for reforms to the public records law, and Attorney General Healey has vowed to work with his office to strengthen transparency. Reforms are sorely needed, especially to require shifting of attorneys’ fees if a requester successfully sues. But in the meantime, Galvin can and should reconsider his misguided rulings on arrest records.

Jeffrey J. Pyle is a partner at the Boston law firm of Prince Lobel Tye and a trial lawyer specializing in First Amendment and media law.