The Woodward Book, the NY Times Op-Ed & Freedom of the Press

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Lawyer 2 Lawyer – Law News and Legal Topics

The Woodward Book, the NY Times Op-Ed & Freedom of the Press

09/14/2018

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George Freeman: And I think that’s very dangerous in democracy to have a President who is willing to go to those lengths of calling the press the enemy of the people to be able to get his will across.

Robert Corn-Revere: I think there has been a continuing effort by the President to demean both the institutions of government and also private institutions that are part of our system, like the press, that has definitely affected the credibility of both governmental and non-governmental institutions.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from sunny Southern California. I write a legal blog named May it Please the Court and have two books out titled How to Get Sued and The Sled.

Well, my co-host Bob Ambrogi recently retired from Lawyer 2 Lawyer and we are in search of guest co-host who can join me and other lawyers we have on this show to discuss our current legal topics. If you are an attorney and you are interested, please feel free to reach out to our Producer Kate Nutting via email at [email protected]. And before we introduce today’s topic, we would like to thank our sponsor Clio.

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And just this week, on September 11, the highly anticipated book, Fear: Trump in the White House by Bob Woodward was released. Woodward is a well-known author and associate editor at The Washington Post who has covered eight presidencies, from Nixon to Obama, and now Trump.

So excerpts from the book were released to the public prior to its sale describing chaos inside the walls of the White House, quotes from White House Chief of Staff John Kelly and Defense Secretary General Mattis describing the President in turn as an idiot and having the understanding of a fifth or sixth grader. Both have denied these comments about the President in response to the book. President Trump called it a joke.

Well, on September 5 The New York Times has recently also published an anonymous Op-Ed titled, “I Am Part of the Resistance Inside the Trump Administration.” The author, a senior official in the Trump administration, discusses the current state of affairs in the White House and their quest to protect the country, but we believe our first duty is to this country and the President continues to act in a manner that is detrimental to the health of our republic. After the release of the Op-Ed, President Trump simply tweeted, Treason, with a question mark.

So are all of these words against President Trump libelous, even a threat to national security, or are they protected by the First Amendment and will the President continue to wage a war against the press?

So today on Lawyer 2 Lawyer we are going to discuss Bob Woodward’s book, the recent anonymous New York Times Op-Ed from a senior official. We will talk about the subjects of freedom of the press, the President-press relationship and the political impact this could have on the presidency.

So to do that, we have got a great line up of guests today. Joining me is Attorney George Freeman. He is the Executive Director of the Media Law Resource Center, a post he assumed in September 2014. Mr. Freeman was also an Assistant General Counsel of The New York Times Company for more than 20 years. During his time there, Mr. Freeman was at the forefront of numerous high-profile cases for The New York Times, including many involving libel, invasion of privacy and other First Amendment issues.

Welcome to the show Attorney George Freeman.

George Freeman: Thank you, it’s a pleasure to be here.

J. Craig Williams: And our next guest is Attorney Robert Corn-Revere, a partner in the Washington D.C. office of Davis Wright Tremaine LLP. He specializes in First Amendment, Internet and communications law. Bob also successfully petitioned Governor George Pataki to grant the first posthumous pardon in New York history, to the late comedian Lenny Bruce, in a landmark pro bono case.

Welcome to the show Attorney Bob Corn-Revere.

Robert Corn-Revere: Thanks for having me Craig.

J. Craig Williams: Well George, let’s start out with you. Your background certainly having worked for The New York Times is really apropos here. Can you give us a little bit of background on how the First Amendment interacts with the press and the presidency and a little bit of history perhaps about Bob Woodward and the Nixon issues and now what we are seeing with Trump.

(00:04:53)

George Freeman: Sure, I would be happy to. The President is a public official and public officials in our country may sue for libel, but only really under certain circumstances, rather harsh circumstances where they can prove that the publisher, the reporter wrote the article with serious doubts as to its truth.

And because that’s a hard test and it’s a hard test intentionally so, because the Supreme Court wanted to incentivize discussion and open-mindedness and debate on public issues, it’s hard for a plaintiff to win, but that doesn’t mean that they can’t win. It only means that they can win if there’s more than a small error, if there’s more than a negligent error even, but if there is an intentional error that’s caused by a reporter having serious doubts as to the truth, that he published something really without being confident that the matter was correct.

And in these cases that you have mentioned, I think that would be awfully hard to prove, particularly with author Bob Woodward, who I just was watching last night. Eugene Robinson, who is his colleague at The Washington Post for decades, was talking about how meticulous he keeps all his notes, how meticulous he checks every fact and with his reputation and with that amount of meticulousness, it would be really, really difficult with respect to the book to be able to successfully sue. And indeed, President Trump has threatened the suit in a number of occasions in his two years in office and hasn’t followed through one, so I don’t expect that this will be any different.

J. Craig Williams: Well Bob, kind of the quotes that we are seeing inside the Woodward book about the chaos inside the Trump presidency, those are all protected First Amendment speech, right?

Robert Corn-Revere: Yes, they are, and I don’t think that it creates either a defamation issue or a national security issue to quote someone who describes the President as an idiot. It may be unflattering and it may be something that drives people inside the White House and the West Wing crazy, which has set off a frenzy of looking for whoever it was that wrote the Op-Ed piece. In that case the direct quotes and in the case of the Woodward book quoting other people inside the administration, but all of that is protected speech.

J. Craig Williams: Given that it’s protected, does Trump have any remedies? His saying that it’s a matter of national security that they find the person who wrote the Op-Ed in The New York Times article, how does that sound?

George Freeman: Let me explain why they have used the words national security because it really is ingenious, but I think I can tell you the reason. The reason is they want to find out who the Op-Ed writer was. That’s very important to them because they want to fire the guy and one can understand that.

On the other hand, they are going to have a hard time doing that, because at this point they can’t even subpoena The Times to say who their source was, much less win a subpoena battle, because there’s no case, there’s no investigation and without a case or investigation you can’t subpoena The Times just because you are the President.

So they need a case, they need an investigation and the only way they can make the Op-Ed somehow into a criminal situation where a case or an investigation is appropriate is by saying that The Times broke national security, i.e., the espionage laws in publishing that article and therefore there can be an investigation and a case and that would allow them to subpoena The Times and try to compel The Times to say where the article came from.

The problem is the article has nothing to do about national security and it’s a huge stretch to say that this article somehow endangered national security. And their theory is going to be, it seems from what they have said, that jeez, if someone is being not confidential about White House materials, as it’s clear from the article, maybe that person has been in meetings with North Korea or Russia and therefore would be in position to leak materials about and information about national security situations and therefore this is all a national security crisis and therefore we would have the right to subpoena The Times.

I think it’s farfetched. I think there’s nothing in the article that touches on national security really, but I think that’s why they have bandied that word about.

Robert Corn-Revere: That’s right. It’s true that there’s really nothing in the Op-Ed piece or anything that I have read so far in the Woodward book; I don’t claim to have been able to finish it yet, that would rise to that level, but I think that one of the reasons why the term national security is used is because it can be a very nebulous catch-all term used to justify investigations. And I agree with George that there is not an ongoing proceeding or anything that would justify trying to get information on who the source was.

(00:10:00)

In terms of the word treason, which has appeared in a Trump tweet so far, I think that’s less an indication that there is any substance to a claim of treason and it is an indication that the President isn’t entirely clear on what that word means. It seems to be attached to anything that would be described as critical of the President. He has used the term even in the context of suggesting that it could be treason if his Democratic members of Congress don’t applaud with enough enthusiasm during the State of the Union address.

So I wouldn’t attach a particular significance to the use of that term in a presidential tweet.

J. Craig Williams: What kind of checks exist on President Trump’s power when he asks the Attorney General Jeff Sessions to undertake an investigation here? Obviously it’s done with the bent of attacking a potential political enemy, or is it, George?

George Freeman: Well, I think so far, I mean he has done this in a few situations and Sessions hasn’t picked up the bait and hasn’t started investigations that he has asked for, from Hillary, to I think a couple of others over the last year. So whatever one thinks about the Attorney General, he really is standing on the independent nature of the Attorney General’s office and not letting it become a stooge or a gopher for the President, which is exactly what he should be doing.

Robert Corn-Revere: Yeah, that’s right. And while there may be demands for Department of Justice investigations, that’s not something that the President is going to be able to do on his own. It’s unlike the situation where he is directing that people withdraw security clearances from other former officials who have criticized him.

George Freeman: Which he has authority to do himself, right?

J. Craig Williams: You would think he does. What do you think this does to the White House credibility? I mean it seems like it’s at an all-time low. President Obama in his recent speech came out and criticized the person that wrote the Op-Ed speech saying that it’s really not the way you want your White House to work, people from the inside not supporting you. Where are we on, what credibility is left in the White House?

George Freeman: Well, I would answer that two ways. I would say first, credibility is I think slowly, slowly eroding, although he seems to keep — his base still seems to have confidence in him notwithstanding all these disclosures. But the last poll I saw his approval rating was 36, I think, which is lower than it’s been over the last few months.

But what worries me is not only his credibility, which is not good for the country after all, but also the fact of what he is doing to the credibility of the press, which to me is and as important, if not more important issue. And the fact is that he has made all sorts of legal threats against the press, opening up the libel laws and some of the things you have already mentioned, which haven’t really come to fruition and in my mind aren’t really all that important. They are kind of empty threats.

But on the other hand, his daily filibustering and his daily blasts and blustering and bloviations against the press I think have taken a real toll in terms of the respect and credibility of the press and that to me is the real problem, because he is doing that intentionally, it’s not just that he is angry at the press. He is basically minimizing the respect of the press because the press and the judiciary are the only two institutions that can block him. And as a businessman he is not used to ever being blocked, and the Congress isn’t blocking him because they seem too lame to do anything.

But the other two institutions, the press and the judiciary can and have kind of blocked him and caused him trouble and his strategy is to just demean them so that the public won’t care about what they have to say and that he can then either ignore the attacks against him, ignore what they have to say as to why what he is doing is wrong and do what he wants and minimize the attacks on him in the first place.

And I think that’s very dangerous in a democracy to have a President who is willing to go to those lengths of calling the press the enemy of the people to be able to get his will across.

J. Craig Williams: Well, we have come to call the press as the fourth estate. Bob, what do you think the status of the press and the First Amendment is in terms of the rights of the media at this point? Has Trump been successful in demeaning them?

Robert Corn-Revere: Well, certainly it has had an effect for there to be constant attacks from the administration describing, as George said, the press as the enemy of the people. I think there has been a continuing effort by the President to demean both the institutions of government and also private institutions that are part of our system, like the press, that has definitely affected the credibility of both governmental and nongovernmental institutions.

(00:14:53)

I think there’s no question that the way the President conducts himself has generally lowered the level of public discourse in the United States. And these recent developments are also going to feed into the kind of conspiracy theories that do underlie a lot of the criticism that he makes. There has been this constant reference to the deep state as undermining him and here we have an Op-Ed by someone inside his administration saying that they are trying to dampen his worst impulses.

Actually, that’s not an example of the deep state, that’s an example of the shallow state I guess with members of his own team trying to rein him in. But nonetheless, I mean it’s going to increase the level of criticism, it stands the possibility of increasing the possibility of him doing something rash, either on his own or directing someone else to do that that could have legal implications.

But what that does to the credibility of the White House is anybody’s guess. I mean nothing in politics has been predictable over the last two years, and as George pointed out, he does seem to have a base that is an irreducible number, somewhere in the low 30 percentile, and nothing seems to move that needle.

And actually I would be very curious outside the East Coast corridor to find out how the rest of the country is reacting to this. I originally come from rural Illinois myself and I know that being there during the time of Watergate was I am sure very different in the way things were perceived than they were in New York or Washington and I would be very interested in hearing just how the rest of the country is reacting to news that we see as explosive and shattering, but may not be seen the same way elsewhere.

J. Craig Williams: I don’t know about the middle of the country. I went to law school in Iowa and it’s been a long time since I have been there, but on the West Coast we kind of stare across the Mississippi River and think — and the Potomac and say when is this going to end and who is going to stand up and do something about it, and maybe that takes us to a point where we need to take a break here. Before we move on to our next segment we are going to take a quick break and hear a message from our sponsor.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I am Craig Williams. We are joined here on Lawyer 2 Lawyer by Attorney George Freeman. He is the Executive Director of the Media Law Resource Center, and Attorney Robert Corn-Revere, a partner in the Washington, D.C. office of Davis Wright Tremaine LLP.

We have been discussing freedom of the press, the Bob Woodward book, the recent anonymous New York Times article on President Trump from a senior official within his administration and the effect that it could have on the presidency. We have been discussing its effect on the press.

George, what remedies does the press have at this point in terms of getting this monkey off their back; that’s maybe not the right word to use, in getting this kind of Trump off their back, because they have constant criticism from him? Are there any remedies in the law or is this just simply a remedy in the public forum where perhaps there have been some cries for not covering him and reducing his effect, where are we on how we can resolve this?

George Freeman: Yeah, I don’t think that’s realistic. I mean as I said legally, I don’t think he has done that much, but the fact is that even if he has, I don’t see that there are any legal remedies that the press can do to do anything about the President’s actions. So I think really this has become a PR battle and I think it’s pretty clear that at this point he is winning that battle.

I think the first push back we have seen really was a couple of weeks ago when some 350 newspapers all editorialized about the importance of a free press, the importance of their being independent to say what they want and to push back on Trump’s attacks on the press.

And of course he called that collusion, because they all did it at the same day, they didn’t say the same thing so really there was no collusion whatsoever. And it was interesting because I think the President totally didn’t understand the irony of his using the word collusion to attack the press.

(00:19:45)

There are other things that can happen. I mean I think some of the big media outlets, The New York Times, CNN has had advertising campaigns, but I think you have to be very careful, because as best as I can see, any advertising campaign that basically names the President or clearly speaks about the President therefore becomes simply a political football and is going to be viewed as part of the — in a polarized context that we live in, and therefore isn’t really going to move the needle because the die-hard Trump supporters are going to be against it as soon as they perceive these public relations, pitches or advertisements to be an attack on Trump.

So, if you’re going to do a campaign, a PR campaign, which I think the media has to do, it really has to be very, very carefully drawn up not be about President Trump, not be about his attacks, but be about the importance that everyone in the country feels about freedom of the press, freedom of expression. And I think it needs to emphasize local news because local news takes it away from the kind of polarized political atmosphere we’re in, and most people love their local newspaper and their local TV station. They get much more respect and love than the national outlets which reviews as too liberal, et cetera.

So, I think that’s what’s needed and I think it has to be done very carefully and I’m hoping that it will be done soon.

J. Craig Williams: Bob, where does this take us for the November elections? I mean we have upcoming the speech of President Obama trying to say that we should be united, it seems that people have labeled Trump is the great divider. Even yesterday in his performance at Shanksville, it was painfully obvious how difficult it is for him to stay on script. What’s going to be happening in terms of how he has an effect on the November elections?

Robert Corn-Revere: There’s no way to predict that. I mean, certainly you can follow the news stories or the polls that suggest that public attitudes are trending one way or another. But ultimately it comes down to race by race, candidate by candidate and I think that sort of the noise over the presidency in the continuing drama certainly will be an environmental factor that affects all of them.

But ultimately, we are up for voters to decide if they’ve simply had enough of the circus. I mean after a while even a good circus gets old and just too jarring to listen to. And in terms of what the press might do, I’d agree with George that it really does come down to almost a public relations issue. The various threats that have been made and talk about loosening up the libel laws, opening up the libel laws or whatever he means by that or asking rhetorically, whether or not broadcast licenses should be pulled and suggesting investigations.

All of the stuff that we see day in and day out rarely if ever amounts to anything. All it really comes down to is the fact that this office holder is displeased with people who criticize him and particularly those in the press who criticize him. And I really think that the only thing that journalists can really do is not to as you asked earlier, to ignore the President, the President by definition makes news when he makes public pronouncements even ones of just 144 characters.

And so, it’s really just a matter of covering the news but really focusing on the business of journalism, really doing old shoe-leather type journalism using the facts what Bob Woodward did as a matter of fact, which is long-form old-style journalism, and I would also agree with George that focusing on local coverage is critically important as well and it’s something that gets overlooked in all of the drama about the White House.

George Freeman: Jumping off of what Bob said —

J. Craig Williams: Let me interrupt for a second and get back to the Woodward book for just a second. How do you work with people within your administration that are quoted as saying the kinds of things that are being said? I mean Woodward comes here with a significant amount of credibility, his first book was considered to be one of the contributing factors to Nixon’s downfall and there have been rumors that this is the beginning of the end for Trump.

But how does Trump deal with people like Madison Kelly that deny these things or for that matter Cohn and Porter, but yet there they are in Woodward’s book.

George Freeman: Well, I think that Trump has developed track record of retaliating against people in his inner circle and/or outside his inner circle as well who displease him or who criticize him. If he believes that these things were really said by people in his administration, there may be in effect, but it’s hard to say.

Frankly, I read the statement in Woodward’s book where defense secretary, Mattis supposedly said that Trump has the understanding of a fifth or sixth grader but frankly, I think that does a real disservice to fifth and sixth graders based on what else is in the book.

(00:25:00)

I think they generally have a better understanding of how government is supposed to work. But, when these things do get printed publicly and now the public record on this is getting to be so extensive, if there is retaliation against people inside the administration, it’s really hard to say who would be left to serve.

J. Craig Williams: Bob, what’s your thought?

Robert Corn-Revere: Yeah — no, I agree. I mean, I don’t think one can — if he really believed that these guys said these things, I can’t imagine that long for the administration.

J. Craig Williams: What do you think the possibilities are of Trump getting the kind of education that he needs to run the government? I mean, there are obvious things that have been said that he said that the rest of us are just kind of scratch our heads and think, do you even begin to understand the basics of how a government works?

Robert Corn-Revere: Yeah, I don’t think it’s education. I mean, I think basically this is goes way beyond my expertise as a lawyer, but I mean, in a brief sentence, I think he’s just as a businessman, as a head of his company used to getting his way no matter what with his colleagues and certainly with his opponents or enemies, just by blustering and by spending money.

He basically has a culture of getting his way and that’s what he believes he’s entitled to do as President. He doesn’t understand that our system is based on a system of checks and balances where you have two other, it’s not three other equal branches of government. And he wants to ignore that and it’s in his interest to ignore it, it seems, and that’s the way he perceives his job and his role because that’s what he’s used to.

George Freeman: Yeah, it’s difficult to tell from a distance whether or not the President is educable. I think the evidence that we really have to go by is what has been published in the Woodward book and elsewhere and even by the President’s own words, suggesting that he has no interest in being educated.

Robert Corn-Revere: I mean, one example of that really is in the saying that he wants to open up the libel laws, aside from as Bob said that that’s kind of a meaningless term assuming he wants to make it more likely for plaintiffs to win and make libel law easier for plaintiffs. The fact is that A, libel law is a matter of state law and he can’t do it as President. B, to the extent it’s federal, it’s the Supreme Court’s law constitutionalizing it and the President does not have power over the Supreme Court and indeed the justices who see the point that I think are going to keep the Times v. Sullivan Precedent that we talked about.

But most importantly in terms of his education, when he was asked at a Washington Post Editorial Board Meeting what he meant by this, he said, well, if reporters intentionally write false things, we should be able to sue them and win lots of money. But the fact is that if you intentionally write false things, then you’re going to lose and the plaintiffs are going to win. That’s what the law is today.

So, he said he wants to change the law. He doesn’t realize that what he really wants is already is the law. So, that’s the matter just a pure lack of education as to what he’s talking about and embarrassingly so it seems to me for someone who said that phrase many times now, you should have some idea what he’s talking about.

And by the way, the fourth reason why it makes no sense is that given the way he criticizes people, he’s more likely to be a libel defendant than a libel plaintiff and he’s going to need the very defenses he says shouldn’t exist anymore. So, the whole thing makes no sense, which is, gives you some hint as to his ability to be educated, I think.

J. Craig Williams: Right, well, gentlemen, we’ve just about reached the end of our program. It’s time to wrap up with your final thoughts and your contact information for our listeners so they can reach out to you if they would like. So, Bob, we’ll turn it over you to summarize and provide you contact information.

Robert Corn-Revere: Well, it’s certainly a challenging time. I think one of the bigger challenges that we face is not a lack of news but news exhaustion. You see weeks that go by like this past week with so many big stories and also in the midst of a confirmation hearing for a Supreme Court justice, so much is going on that it’s hard to keep track of it, and unfortunately, people tune out when you have this much going on that is unpleasant.

And also people focus on just the noise rather than the news and we live at a time in which the head of state makes more news by just making noise than by actually implementing policy.

So, the real challenge for our institutions is to continue doing what our institutions were designed to do and that includes the governmental institutions as well as private institutions like the press.

J. Craig Williams: Great. And if our listeners want to reach out to you, how can they find you?

Robert Corn-Revere: They can find me at the Office of Davis Wright Tremaine in Washington, DC. We’re available on the web and pretty easy to find.

(00:29:57)

J. Craig Williams: Great, and let’s turn it over to George to wrap up and with your final thoughts.

George Freeman: Yeah, I mean, in talking about the President people can reasonably differ as to the substantive policies that he has, on immigration, on taxes, on health care, and so on, and I think that there is — people have different views and that’s perfectly fine.

What I find to be more challenging and more dismaying is the fact that this appears to be a President who basically does not believe in the rule of law and basically doesn’t believe that there is a truth or that he should be bound to tell the truth. And I think that’s what differentiates him from former presidents including by the way Nixon, who certainly had his troubles and was removed from office or moved himself from office, but he believed in the system and he did believe I think in the rule of law and he believed — I mean he turned over his tapes in the end and he basically was worried about his historical legacy.

And my fear is that this President really doesn’t have the respect for the rule of law and for the administration of justice that we would expect in a President and that’s what’s so troublesome.

And I’m George Freeman and I’m at the Media Law Resource Center which you can find online at medialaw.org. And we have a website that explains what we do and it gives out all our physicians’ conferences, papers, et cetera for the public and for members in particular to read.

J. Craig Williams: Great. Well, thank you very much. Much thanks to George Freeman and Bob Corn-Revere, and that brings us to the end of our show. If you’d like what you heard today, please rate us in Apple Podcasts. You can also visit us at legaltalknetwork.com, where you can leave a comment on today’s show, and sign up for our newsletter. Remember, we are soliciting for co-hosts, so submit your application.

I’m Craig Williams, thanks for listening, join us next time for another great legal topic, when you want legal, think Lawyer 2 Lawyer.

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