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.
It happened in plain sight. This isn’t a criticism of special counsel Robert Mueller, whose report hasn’t been released and who may not have found any criminal offenses. But we can’t unsee what we all saw.
[William] Barr’s note is clear that Mueller did not uncover evidence Trump and his gang were in direct cahoots with Russia’s covert operation to interfere with the US election and boost Trump’s odds. But the hyper-focus on this sort of collusion — as if Trump instructed Russian hackers on how to penetrate the computer network of the Democratic National Committee — has always diverted attention from a basic and important element of the scandal that was proven long before Mueller drafted his final report: Trump and his lieutenants interacted with Russia while Putin was attacking the 2016 election and provided encouraging signals to the Kremlin as it sought to subvert American democracy. They aided and abetted Moscow’s attempt to cover up its assault on the United States (which aimed to help Trump win the White House). And they lied about all this.
BuzzFeed News reports that “two federal law enforcement officials” have seen evidence that President Trump “directed” his former lawyer Michael Cohen to lie under oath when he testified before Congress about a Trump Tower project in Moscow. Special counsel Robert Mueller takes the unusual step of having his spokesman denounce the story as “not accurate.” BuzzFeed’s reporters and their editor vociferously insist that they and their unnamed sources are standing behind their account.
Within 24 hours last week, what looked like a serious threat to the Trump presidency had collapsed into one big honking mess. Nor does it appear that we’re any closer to resolution. A number of media observers have pointed out that no other news organization has been able to confirm BuzzFeed’s reporting. That’s significant, of course. But no one has been able to knock it down, either.
So what is going on? Let me offer a speculative answer, based on the belief that Mueller’s office, BuzzFeed’s journalists, and their sources are all trying their best to tell the truth: everyone is right. BuzzFeed’s story is essentially accurate, but is flawed in some important way that hasn’t been explained. Mueller, worried that Trump might blow up the investigation, took advantage of those flaws to discredit the entire story. If that was Mueller’s intention, it worked, as Trump praised him after the statement was released.
In the past few days we’ve heard much about the famous mistake that Bob Woodward and Carl Bernstein made when they were hammering away at the Watergate story for The Washington Post: They attributed an otherwise accurate account of corruption within the Nixon White House to grand jury testimony that did not exist. Their error was seen as so damaging that they offered their resignations.
“Look, reporters make mistakes. News organizations make mistakes. In Watergate, we made a mistake, a very serious mistake,” Bernstein said this past Sunday on CNN’s “Reliable Sources.” But, he continued, within days the Post was vindicated when it became clear that the information they had reported was true.
The parallels between BuzzFeed’s story and Woodward and Bernstein’s erroneous attribution, though, only go so far. I think a closer analogy involves James Comey’s testimony in June 2017 before the Senate Intelligence Committee shortly after Trump had fired him as FBI director. Comey was asked about a Times story that had been published four months earlier claiming that members of Trump’s campaign “had repeated contacts with senior Russian intelligence officials in the year before the election.” Comey replied that “in the main, it was not true.”
As with the BuzzFeed report, no details were offered as to what was wrong with the Times story. Here we are, more than a year and a half later, and we still don’t know what Comey was referring to. Was it the sourcing? The underlying facts? The Times article reporting on Comey’s complaint noted that there was considerable evidence of contacts between the Trump campaign and the Russian government even then. Today, of course, there is far more evidence, going all the way up to Trump’s extremely guilty campaign manager, Paul Manafort.
If we assume that the basic facts of BuzzFeed’s report are correct, then what might have gone wrong enough for Mueller to issue his extraordinary statement? Writing at Talking Points Memo, Josh Marshall speculated that the information came not from the special counsel’s office but, rather, from the U.S. attorney’s office for the Southern District of New York. The BuzzFeed story specifically cited the special counsel’s office, but Marshall pointed out that it’s not always clear who is doing what. “The SDNY is notoriously more porous to the press than the Special Counsel’s Office,” Marshall wrote. “So we have a kind of information that seems more likely to come out of New York and an office there that seems considerably more likely to leak.”
National security blogger Marcy Wheeler, while praising the BuzzFeed report in some respects, was also critical of it for making “an absurd claim that this is the first time we’ve heard that Trump told someone to lie.” She added: “The BuzzFeed story is important for the concrete details it adds to a story we already knew — and these reporters deserve a ton of kudos for consistently leading on this part of the story. But it has unnecessarily overhyped the uniqueness of Trump’s role in these lies, in a way that could have detrimental effect on the country’s ability to actually obtain some kind of justice for those lies.”
The journalists who worked on the BuzzFeed story are first-rate. Jason Leopold, despite some serious ethical lapses early in his career, is a dogged investigative reporter who was a finalist for a Pulitzer Prize in 2018. Anthony Cormier, whose byline also appeared on the story, won a Pulitzer for investigative reporting in 2016 when he was with the Tampa Bay Times. BuzzFeed News editor Ben Smith is well regarded.
And yet there was one obvious shortcoming. According to The Washington Post, BuzzFeed’s outreach to Mueller spokesman Peter Carr for comment before publication was unacceptably vague: “Importantly, the reporter made no reference to the special counsel’s office specifically or evidence that Mueller’s investigators had uncovered.” When the story was published a short while later, the Post continued, “it far exceeded Carr’s initial impression.”
If BuzzFeed failed to give the special counsel’s office fair notice of what was coming, that would help explain the controversy that broke out after they hit “publish.” But it still doesn’t tell us what, if anything, BuzzFeed got wrong — or whether we’ll ever know.
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.
In response to the statement tonight from the Special Counsel's spokesman: We stand by our reporting and the sources who informed it, and we urge the Special Counsel to make clear what he's disputing.
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.
Rudolph Giuliani tells @CNNSotu that Trump may indeed have spoken to Michael Cohen about his congressional testimony beforehand. "And so what if he talked to him about it?" Denies Trump told Cohen to lie.
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.