Two-thirds of Judge James d’Auguste’s ruling is not especially interesting. He ruled that the campaign lacked standing to bring such a suit, and that Trump would be unable to prove Frankel knew or strongly suspected that what he was writing was false — the “actual malice” standard that pertains to public officials and public figures.
So that leaves us with the third leg of d’Auguste’s decision — that Frankel was merely expressing his opinion, which is protected by the First Amendment. The standard was set in a U.S. Supreme Court case called Milkovich v. Lorain Journal Co., in which Chief Justice William Rehnquist ruled that labeling a piece of writing as “opinion” provides no protection if that piece contains assertions of fact that could be proven true or false.
The way Rehnquist explains it is that to say “In my opinion Mayor Jones is a liar” would be unprotected speech (that is, if Jones could prove he’s not a liar, he might be able to bring a successful libel suit) whereas “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin” would be considered pure opinion and thus beyond the reach of a libel suit.
So what did Max Frankel do? If you read his commentary, you’ll see he looked at a number of public actions and statements by Trump and people close to him to show that they were toadying to Russian interests, and that not only did the Russians expect something in return, but that Trump and his allies moved in that direction both during and after the 2016 election. We all know this. We all watched it unfold in real time. (It’s important to note in this context that “collusion” is not a legal term anymore than “toadying” is. In other words, labeling such behavior as “collusion” is protected opinion as long as the underlying facts are accurately stated.)
Among other things, Frankel cites the infamous Trump Tower meeting as well as incoming national security adviser Michael Flynn’s lying to the FBI about his discussion with the Russian ambassador before the 2017 inauguration about the possible lifting of sanctions. Those actions led to criminal charges against Flynn, to which he pleaded guilty twice before Trump, as president, pardoned him in the final days of his administration. Frankel writes:
Candidate Trump made no secret of his intention to forge a warm relationship with the Kremlin. But pledges of sanctions relief and other specific moves while not yet in office were unseemly at best and clearly offensive to the American convention that we have only one president at a time. Mr. Flynn especially had to lie because though already in transition to power he was directly undermining Mr. Obama’s still active and punitive diplomacy against Mr. Putin.
On Monday, The New York Times published the results of a massive investigation into Donald Trump’s attempts to overturn the results of the election.
Today comes the tragicomic conclusion: a report by Axios on an insane meeting that took place at the White House on Dec. 18 at which the conspiracy-addled lawyer Sidney Powell tried to get herself named a special counsel to investigate Dominion voting machines while Gen. Michael Flynn (he of the two guilty pleas) and the White House staff screamed profanities at each other.
The reporters are Jonathan Swan, who conducted a hard-hitting interview of Trump last year, and Zachary Basu. The whole thing is so crazy that it’s hard to pick any one excerpt, but this will do. Below, Byrne is Patrick Byrne, the chief executive of Overstock.com and a Trump backer. Herschmann is Eric Herschmann, a White House senior adviser. Patrick Cipollone was the White House counsel. Swain and Basu write:
At one point, with Flynn shouting, Byrne raised his hand to talk. He stood up and turned around to face Herschmann. “You’re a quitter,” he said. “You’ve been interfering with everything. You’ve been cutting us off.”
“Do you even know who the fuck I am, you idiot?” Herschmann snapped back.
“Yeah, you’re Patrick Cipollone,” Byrne said.
“Wrong! Wrong, you idiot!”
Herschmann and others who were at least partly tethered to reality were afraid that Trump was going to go along with Powell and unleash her upon state and local election officials. As Swain and Basu write, “Trump expressed skepticism at various points about Powell’s theories, but he said, ‘At least she’s out there fighting.'”
In the end, though, Trump was somehow coaxed into listening to reason. How bad was it? Toward the end, we see that Rudy Giuliani actually had a calming effect on the situation, which is surely the first time anyone has said that about him in many years.
Correction: I originally misspelled Jonathan Swan’s name.
Rachel Maddow was excited. The host of cable news’ top-rated show could barely contain her glee Wednesday night over the news that President Trump’s first national security adviser, Michael Flynn, had proven to be such a cooperative witness that special counsel Robert Mueller was recommending no jail time.
“Another few shoes are going to drop soon,” she told her viewers. She also pondered the mystery of why Trump never says anything critical about Flynn. “Not a peep about Mike Flynn since Flynn plead guilty and became a cooperator more than a year ago,” she said, adding, “There must be something else going on here. And, “The only other person he treats like this is freaking Putin!”
It was a different story on cable news’ second-highest-rated program. Sean Hannity was in full dudgeon over Mueller’s decision to go after Flynn for what Hannity called minor “process” crimes. Hannity instructed his viewers that Mueller had persecuted “a decorated military hero” for the sole purpose of building a phony case to drive Trump out of office.
“This is how desperate and how pathetic Robert Mueller is,” Hannity said, running through the reasons why Flynn might have decided to cooperate: finances ruined, his son facing possible jail time. “Is this,” Hannity asked, “what justice in America is supposed to look like to you?”
Welcome to the 2018 edition of the National Conversation. With the Mueller investigation on the verge of a possible denouement, I thought I’d spend Wednesday night watching “The Rachel Maddow Show” and “Hannity.” Hyper-polarization may be tearing us apart, but at the cable news outlets, it’s good for business. According to Adweek’s TVNewser, Maddow’s program on MSNBC this past Tuesday drew nearly 3.5 million viewers, more than anyone else on cable news in prime time (8 to 11 p.m.). Hannity, on Fox News, gathered just under 2.9 million.
And surely it’s no accident that that MSNBC, which leans left, and Fox, which has embraced the hard right, are dominating prime time while CNN brings up the rear. Though CNN, like MSNBC, is harshly critical of Trump and regularly draws the White House’s ire, the network has attempted to maintain at least some of its former image as a nonpartisan purveyor of actual news. MSNBC and Fox, bound by no such scruples, are free to toss bleeding chunks of raw meat to their aging viewers.
It should be noted that all three cable outlets employ actual journalists who do good work. It’s just that they are rarely seen during prime time, especially on MSNBC and Fox. Instead, the three networks offer a full line-up of talk shows, nine hours a night. And the queen and king of those talk shows are Maddow and Hannity, whose 9 p.m. programs have become appointment viewing for political partisans of the left and right.
Lest I be accused of false equivalence, let me make it clear that Maddow, for all her opinionating and speculating, helms a show that is grounded in facts. She’s smart, and you often learn something. Over at Fox, though, the Trump presidency has pushed Hannity and other hosts into an alternative universe of dark conspiracy-mongering in which the Mueller investigation is nothing but a corrupt attempt by the “deep state” to destroy a great president because of his willingness to stand up to the establishment.
Thus did Wednesday’s edition feature a conversation between Hannity and John Solomon, an investigative columnist with The Hill, who this week reported on an “email chain”purportedly showing that former FBI director James Comey and other officials had obtained a FISA warrant under false pretenses so that they could surveil Trump associate Carter Page. Inconveniently, Solomon admitted to Hannity that he hadn’t actually seen the emails, although they have been “described” to him. All right, then.
Hannity was apoplectic, calling Solomon’s story proof of a “conscious fraud upon the court” and saying it showed that Comey was trying to tilt the election toward Hillary Clinton — never mind Comey’s late hit on Clinton, when he reopened the investigation into her emails and found nothing, a move that may well have cost her the election.
The rest of Hannity’s hour was taken up with a visit from Newt Gingrich, who called the Mueller investigation “an anti-constitutional effort by the organized left” and who congratulated Fox News for being the only media outlet willing to tell the truth; an immigration “debate” with fellow Fox host Geraldo Rivera (Hannity and Rivera both support Trump’s wall, but Rivera, unlike Hannity, would do something for the Dreamers); and, believe it or not, an update on the war on Christmas, perhaps Fox News’ most enduring creation.
Maddow’s program was considerably less toxic than Hannity’s but not necessarily any more nutritious. Other than Flynn, her main interest was the fate of Maria Butina, an accused Russian operative who, we learned, stood up at a Trump event in 2015 and apparently became the first person ever to ask the then-candidate whether he would lift sanctions against Russia. (Trump responded that he’d strongly consider it.) Butina, Maddow observed, may be the link uniting Russian money, the Trump campaign, and the National Rifle Association.
Maddow was also visited briefly by the ubiquitous Democratic congressman Adam Schiff of California, who will soon become chairman of the House Intelligence Committee, and Alex Isenstadt of Politico, who broke the news earlier this week that a foreign government had hacked the email accounts of several top Republican campaign officials.
Significantly, neither Maddow nor Hannity spent much time on the funeral of George H.W. Bush, which has brought a sense of unity to much of the country even if praise for the one-term president has been somewhat overwrought. Maddow, at least, provided a respectful overview of the day’s events. Hannity’s main interest was to bring on New York Post columnist Michael Goodwin and former George W. Bush press secretary Ari Fleischer so they could whine that Democratic praise for the late president was just another way of trashing Trump.
Cable news has long been a wasted opportunity. So much airtime. So little news. Imagine how it might be different. How about at least one hour of prime time combining news and analysis without any partisan overlay? I’m thinking of something like Anderson Cooper’s CNN program, only with more actual journalism. Or the “PBS NewsHour” with a zippier pace and better production values.
But no. Instead we have ideological talk-show hosts exploiting the passions of their audience for ratings and profits. It’s a sorry state of affairs — but one that perfectly reflects our deep and seemingly unbridgeable divisions.
The tribalism that infects our public debate ensures that the monumental error committed last week by ABC News’ Brian Ross will have little effect among those already inclined to reject anything reported by the mainstream media. After all, members of the Trumpist 35 percent would have dismissed Ross even if Ross had been correct in reporting that President Trump ordered Michael Flynn to contact the Russians.
But for those of us who care about the reputation of the reality-based press (to borrow a phrase from Washington Post media columnist Margaret Sullivan), Ross’ mistake at a key moment in the Russia probe could prove enormously damaging. As Jeff Greenfield, one of journalism’s éminences grises, said on CNN’s “Reliable Sources” over the weekend, “This is exactly what Trump and his allies want to say: ‘No matter what you hear on mainstream media, it’s fake. They’re doing it to hurt us.’ And this is like handing a sword to the people who want all media to be looked at in that regard.” Moreover, as Greenfield noted, the damage was done by a reporter with exceptionally dubious track record, a theme I’ll return to below.
But first: Last Friday, after former national security adviser Michael Flynn pled guilty of lying to the FBI, Ross, a longtime investigative reporter, took to the airwaves to share some explosive news. Multiple news organizations had already revealed that Flynn would likely testify that President Trump himself had asked Flynn to reach out to Russian officials during the transition — problematic given that President Obama had not yet left office, but hardly catastrophic. Ross, though, went one giant step farther. Citing one anonymous source, Ross said Flynn would testify that Trump had “directed him to make contact with the Russians” during the campaign, “which contradicts all that Donald Trump has said at this point.”
This, needless to say, was very close to the smoking gun that special counsel Robert Mueller is looking for. And it was wrong. Within hours, ABC News issued a “clarification,” explaining that Trump’s directive to Flynn did not come until after Election Day. Critics howled at ABC’s defensiveness, which led the network to relabel its statement more honestly as a “correction.” Soon came additional news: Ross would be suspended for four weeks without pay, and would no longer report on the White House.
Voices on the right were gleeful. “The advertised rage among executives at ABC is hard to take seriously,” wrote George Neumayr at the conservative American Spectator. “Ross, after all, has long been paid by them to slap together politically useful smears. They are just upset that he got caught on this one.” The president himself took to Twitter, as is his wont, and suggested that investors sue ABC for the damages they had incurred when the stock market plunged after Ross’ report. CNN media reporters Oliver Darcy and Brian Stelter got a copy of a molten memo from ABC News president James Goldston in which he said:
I don’t think ever in my career have I felt more rage and disappointment and frustration that I felt through this weekend and through the last half of Friday. I don’t even know how many times we’ve talked about this, how many times we have talked about the need to get it right. That how we have to be right and not first. About how in this particular moment, with the stakes as high as these stakes are right now, we cannot afford to get it wrong.
What was inexplicable about all this was ABC News’ terrible judgment in letting Ross go live with breaking news at such a moment. This is, after all, a journalist whom Gawker once called “America’s Wrongest Reporter,” and for good reason. Jeff Greenfield put it this way: “I’m going to be very blunt about this. I’m sorry. This is not Brian Ross’ first mistake in reporting breaking news inaccurately.”
In The Washington Post, Paul Farhi detailed some of Ross’ whoppers over the years, from misidentifying the mass shooter in an Aurora, Colorado, movie theater in 2012 as a tea-party activist to erroneously claiming that the anthrax mailings that followed the terrorist attacks of 9/11 were somehow tied to Saddam Hussein. Though Farhi acknowledged that Ross has broken some big stories and won numerous awards, he also wrote: “All journalists make mistakes, but Ross’ blunders have often been spectacular — and unusually plentiful for someone of his prominent status in broadcasting.”
It is precisely because of Ross’ mixed record that few media observers have come to his defense. On Twitter, author and educator Dan Gillmor raised the possibility that ABC News should reveal the identity of his anonymous source if that source deliberately lied to Ross. It’s not an outlandish idea. Last week, The Washington Post outed an anonymous source, Jaime Phillips, after determining that she was lying to them about being an underage victim of Albama Senate candidate Roy Moore, and that she was actually an undercover operative for the right-wing activist group Project Veritas. But no one forced Ross to air a major news development on the basis of one anonymous source.
Was Brian Ross lied to by )(unnamed) source, or did he report what wasn't said? If the former, ABC should out the source. https://t.co/Xz1lGfUJCD
After CNN abruptly fired three journalists last June over a botched report about Anthony Scaramucci’s ties to Russia, Politico media columnist Jack Shafer wrote that the punishment seemed too harsh. (This was before Scaramucci’s brief star turn as Trump’s communications chief.) Shafer wrote:
In hindsight, it’s easy to say CNN shouldn’t have gone with such a flimsy, improperly vetted story. Unfortunately, journalism isn’t a hindsight business. Journalism happens in real time, against a deadline clock, and in a competitive atmosphere. Only ombudsmen, press critics and libel attorneys get to second-guess what they do.
Shafer has not weighed in on the Ross matter. But surely the fact that Ross was suspended rather than fired and has multiple past transgressions on his résumé make this very different from the CNN firings, the reasons for which were never fully explained, as this New York Times post-mortem makes clear.
Then again, it seems reasonable, if not likely, that Ross will leave ABC News rather than return after his suspension is over. In their report for CNN.com, Darcy and Stelter quote several anonymous colleagues of Ross who said that his return at this point would be untenable. “No one wants to work with him,” said one.
Ross’ retirement would be the best for everyone involved. At a moment when news organizations such as The Washington Post, The New York Times, and others are breaking important news about the Trump White House seemingly every day, it is vital to preserve credibility with those members of the public who actually do trust the media.
As James Goldston said, the stakes right now are incredibly high. And as Jack Shafer said, maybe they’re too high if they don’t allow for the errors that are inevitably committed. But that’s the moment in which we find ourselves.