How Trump’s efforts to ban critical books violate the Constitution

Illustration (cc) 2006 by Bill Kerr.

Previously published at WGBHNews.org.

For those keeping track of the various ways by which President Donald Trump is trampling on the Constitution, move this to the top of your list: his former lawyer Michael Cohen was sent back to prison earlier this month to prevent him from writing a tell-all book about Trump.

Cohen, serving a federal sentence related to various corrupt acts on behalf of the president, was allowed to go home when the COVID-19 pandemic hit. But he was locked up again after he refused to promise not to publish his Trump book, “Disloyal,” before the November election. Cohen was sprung for a second time by U.S. District Judge Alvin Hellerstein, who ruled last week that federal authorities had violated Cohen’s First Amendment rights.

“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, according to The Associated Press, adding: “Why would the Bureau of Prisons ask for something like this … unless there was a retaliatory purpose?”

The Justice Department’s short-lived effort to silence Cohen by imprisoning him was egregious even by the thuggish standards of the Trump era — but it was also just the third recent move by the president and his minions to prevent critics from publishing books about him. The others:

• Former national security adviser John Bolton’s book, “The Room Where It Happened,” was held up for months while undergoing review for the ostensible purpose of ensuring that Bolton did not reveal any classified information. That, at least, was a legitimate reason. But Bolton and his publisher, Simon & Schuster, ultimately chose to defy the White House after it became clear that the process was being drawn out for reasons of politics rather than protocol.

In allowing the book to proceed, federal judge Royce Lamberth wrote that Bolton may very well have been improperly revealing secrets — but that the First Amendment remedy for all but the most dangerous breaches of national security is to punish the perpetrator after publication, not to prevent publication ahead of time. According to NPR, Lamberth wrote that Bolton had “gambled with the national security of the United States,” but that “the government has failed to establish that an injunction will prevent irreparable harm.”

• Trump, through his brother Robert, sought to prevent the release of his niece Mary L. Trump’s devastating book about the president, “Too Much and Never Enough,” by claiming that she was violating a nondisclosure agreement she had signed many years earlier.

Although a lower-court judge granted Robert Trump a temporary restraining order, that order was overturned by Judge Hal Greenwald of the Supreme Court of New York. In a nice turn of phrase, The Washington Post reported, Greenwald wrote the Constitution “trumps contracts.”

Though the circumstances of Cohen’s, Bolton’s and Mary Trump’s books couldn’t be more different, there is a common thread: the First Amendment demands that publication not be prohibited, and that if the authors are to be subjected to any legal penalties, those penalties must come later.

The principle that prior restraint is the worst and most indefensible of assaults on free expression goes all the way back to the English poet John Milton, who in his 1644 tract “Areopagitica” argued against the requirement that printers obtain licenses on the grounds that everyone should be free to print what they wished without government interference.

In stirring language, Milton wrote that “though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

Milton also anticipated modern First Amendment law by arguing in favor of unimpeded publication first, punishment (if warranted) after — though his ideas about what constituted proper punishment were suffused with a distinct 17th-century sensibility, writing that “the fire and the executioner will be the timeliest and the most effectuall remedy.”

In the 20th century, the U.S. Supreme Court ruled in two landmark cases that, with very few exceptions, punishment should come only after publication.

In Near v. Minnesota (1931), the court ruled that prior restraint could be invoked only in cases involving a serious violation of national security, obscenity or incitement to violence. Thus was a Minneapolis-based scandal sheet allowed to resume publication even though every previous issue had contained outrageous libels.

In New York Times Co. v. United States (1971), the court upheld the Near precedent and ruled that publication of the Pentagon Papers could resume because the national-security implications were not serious enough to warrant censorship — although a majority suggested that they might be serious to justify post-publication prosecution, as my friend and occasional collaborator Harvey Silverglate has shown.

In Trumpworld, the revelations of Michael Cohen, John Bolton and Mary Trump are so horrifying that they justify being repressed even more than the Pentagon Papers, the government’s secret history of the Vietnam War. Yet as President Richard Nixon argued at the time, the Pentagon Papers really did undermine the war effort. Today’s revelations have resulted only in embarrassment to the president.

And it continues. Last week The New York Times reported that Immigration and Customs Enforcement was blocking the release of a Netflix documentary that depicts the agency’s abuse and mockery of immigrants. The filmmakers, Shaul Schwarz and Christina Clusiau, said they’d been told that objections to their work extended “all the way to the top.”

Unfortunately, Schwarz and Clusiau had signed an agreement granting approval rights to ICE. And though that agreement supposedly included “strong protections for their journalistic independence,” as the Times put it, it’s now being wielded as yet one more way to protect Trump from scrutiny and criticism.

There is a school of thought that Trump’s ranting about the media — calling them “Enemies of the People,” threatening to loosen libel protections and the like — is little more than bluster. His two Supreme Court justices, regardless of what else you might say about them, appear to be as dedicated to protecting the First Amendment as their colleagues. And Trump rarely follows through on his threats.

But there is a connection between his rhetoric and his actions: anyone who speaks against him must be silenced and punished — even jailed and put at risk of death, as with Michael Cohen.

With federal troops cracking down on mostly nonviolent protesters against the wishes of governors and mayors, the scent of authoritarianism is in the air. Will we pay attention? Or will we simply move on to the next outrage, as we have so many times in the past three and a half years?

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No reason for BuzzFeed to apologize for that explosive Michael Cohen story

I want to take a brief look at a very small wrinkle within the much larger story of the Mueller Report. A number of observers have taken note that the report disputes an article that BuzzFeed News published back in January claiming that former Trump lawyer Michael Cohen told prosecutors the president had “directed” him to lie before Congress about the Trump Organization’s attempts to build a tower in Moscow.

At the time, Mueller’s office took the unusual step of denying BuzzFeed’s story, and the release of the redacted Mueller Report on Thursday appeared to back that up. For instance, here is how NBC News puts it:

While Mueller acknowledged there was evidence that Trump knew Cohen had provided Congress with false testimony about the Russian business venture, “the evidence available to us does not establish that the President directed or aided Cohen’s false testimony.”

BuzzFeed News editor-in-chief Ben Smith addressed the matter Thursday night, acknowledging that the Mueller Report contradicts what his journalists had claimed. CNN media reporter Brian Stelter, in his daily newsletter, notes, “Smith stopped short of expressing any regret for the story.” But should he have? I don’t think so. Crucially, Smith also writes this:

On Feb. 27, Cohen testified before a congressional committee that Trump “told” him to lie to Congress “in his way,” using a coded style of speech that Cohen said was familiar from past interactions.

Indeed Cohen did. We all saw him do it. I took it at the time, and I still do, that BuzzFeed’s reporting was essentially correct. Cohen by his own testimony told Mueller’s office that President Trump had made it clear he wanted him to lie. BuzzFeed interviewed two unnamed prosecutors who passed that information along. If Mueller has now concluded that didn’t actually amount to Trump directing Cohen to lie, it doesn’t change what Cohen perceived or how BuzzFeed’s sources understood what Cohen was telling them.

BuzzFeed’s headline and lead used the word “directed,” which is totally accurate. Where BuzzFeed overstepped was in publishing this sentence farther down: “It is the first known example of Trump explicitly telling a subordinate to lie directly about his own dealings with Russia” [my emphasis].

My two takeaways from this episode are, first, that BuzzFeed comes out of this looking pretty good; and second, that every word matters, especially when reporting on a story this explosive. The phrase “explicitly telling” hangs out there as the sole problem in a story that otherwise advanced our understanding of the Trump-Russia connection in a fundamental way.

Earlier: “Making Sense of the BuzzFeed Bombshell — and What, If Anything, Went Wrong” (WGBH News, Jan. 23).

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The tainted BuzzFeed News blockbuster: Where do we go from here?

Last night on “Beat the Press” (above) we took on the BuzzFeed News blockbuster and talked about how much credence the media should give to a story that they hadn’t independently verified. Among other things, I said that BuzzFeed News has a good reputation and that it has owned the Trump Tower story. I’ll stand by that.

Then, a few hours later, the office of special counsel Robert Mueller denied the story, which claimed that President Trump had personally directed his former lawyer Michael Cohen to lie to Congress under oath about plans to build a Trump Tower in Moscow. The Washington Post’s account is brutal:

Inside the Justice Department, the statement was viewed as a huge step, and one that would have been taken only if the special counsel’s office viewed the story as almost entirely incorrect. The special counsel’s office seemed to be disputing every aspect of the story that addressed comments or evidence given to its investigators.

BuzzFeed News editor Ben Smith said that he stands behind the story.

So where do we go from here?

First, this reminds me of James Comey, shortly after he’d been fired as FBI director, testifying before the Senate Intelligence Committee and claiming that The New York Times had gotten an important Trump-Russia story wrong. Comey offered no specifics, and we still don’t know what he was referring to. Likewise, Mueller’s spokesman did not say what BuzzFeed News had gotten wrong — other than “every aspect,” as the Post suggests.

Second, there’s been some well-informed speculation by Josh Marshall (sub. req.) and others that BuzzFeed’s sources are in the U.S. attorney’s office for the Southern District of New York, not the special counsel’s office. National security blogger Marcy Wheeler believes that BuzzFeed “unnecessarily overhyped the uniqueness of Trump’s role in these lies,” and that Mueller issued his statement in order to take the temperature down and keep his investigation on track.

Third, BuzzFeed News does, in fact, have a good reputation. Smith is a fine editor. As you may have heard, one of the two reporters on the story, Jason Leopold, was caught in several ethical lapses earlier in his career, and it’s not unfair to take that into account. But there have been no reported problems since 2006, and in 2018 he was a finalist for a Pulitzer Prize. The other reporter, Anthony Cormier, won a Pulitzer in 2016 when he was at the Tampa Bay Times.

Smith, Leopold and Cormier knew what the stakes were before this story was published. I would imagine that even BuzzFeed chief executive Jonah Peretti was involved in the decision to hit “publish.” There may turn out to be some significant problems with the story. But unless we see evidence to the contrary, I think it’s likely that everyone involved satisfied themselves that they had the goods. Did they? I hope we’ll find out.

Sunday update: Trump’s lawyer-in-charge-of-digging-the-hole-deeper, Rudy Giuliani, weighs in:

And here’s BuzzFeed reporter Anthony Cormier refusing to back down:

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