The President, the Press, and the Dossier

Episode Notes

Transcript

Lawyer 2 Lawyer

The President, the Press, and the Dossier

09/05/2020

 

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Intro: And what we’re seeing here is an effort to threaten and cower reporters, it won’t work, but that’s what we’re seeing in order to keep these stories from appearing. Your question, Craig about trust and credibility of the press, the media consistently forgets that a lot of these wounds, too many of these wounds are self-inflicted.

 

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

 

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1. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named “May it Please the Court.” Have a book out titled “The Sled” and “How to Get Sued.” Well, before we introduce today’s topic, we’d like to take this time to thank our sponsors, LEX Reception and Blue J Legal. LEX Reception is a close-knit team of virtual receptionists dedicated to professionalism warmth in a 24/7 availability for law firms and attorneys. And Blue J Legal’s AI powered foresight platforms accurately predict court outcomes and accelerate case research by using factors instead of keywords. You can learn more at bluejlegal.com. Well, in response to an article published on August 27th by Washington Post’s Reporter David Fahrenthold on how the United States Secret Services spent more than $900,000 at Trump properties during Trump’s presidency. White House Spokesperson Judge Dear said “the Washington Post is blatantly interfering with the business relationships of the Trump organization and it must stop. Please be advised that we are building up a very large dossier on the many false David Fahrenthold and other stories as they are a disgrace to journalism and the American people.” And as people may know, David Fahrenthold has had a long history with the president covering the president, the trump organization and its business relationships for many years.

 

So, today on Lawyer 2 Lawyer, we’re going to be discussing this alleged dossier, its implications for freedom of the press, the current and historic relationships between the White House and journalists. To do that, we’ve got a great show for you today. Our first guest is Professor Stephen Gillers. He’s a professor of law at NYU School of Law. Been there since 1978 and served as vice dean from 1999 through 2004. Stephen also wrote a book titled, Journalism Under Fire: Protecting the Future of Investigative Reporting. That book was published by Columbia University Press. And welcome to the show, Stephen.

 

Stephen Gillers: Thank you.

 

1. Craig Williams: And next, we have a returning guest, Attorney Charles Glasser. Charles spent 14 years as the Global Media Counsel for Bloomberg News, where he was responsible for pre-publication review, ethics issues and training more than 2,200 reporters in more than 120 bureaus around the world on legal and ethical issues and a wide-ranging journalistic fundamentals focusing on investigative and business news. He’s the author and editor of the book, the International Libel and Privacy Handbook, Fifth Edition 2020 this year from LexisNexis. And welcome back to the show, Charles.

 

Charles J. Glasser, Jr.: Oh, thank you for having me.

 

1. Craig Williams: Well, Stephen, I’m going to throw this one to you first to kind of give us some context and some background behind the relationship between reporters and the government and what the context, the freedom of the press means in relationship to the allegations that we’re talking about today?

 

Stephen Gillers: The press and David Fahrenthold are doing their job when they report on Trump’s business practices. The use of the word interfering with Trump’s business is simply incorrect. The public has a right to know what Fahrenthold discovers about the president’s business practices. It relates to his competence, his trustworthiness and it’s just interesting. So, the notion that there is interference as Dear said is simply wrong and the first amendment of course allows Fahrenthold and protects Fahrenthold and the Washington Post when it digs into trump’s businesses.

 

1. Craig Williams: It sounds exactly right, yes. And let’s turn next to Charles, you’ve got a deep background in the news and as an attorney, and I noticed something about Dear’s comment that I wanted to drill down a little bit deeper into. He commented that the interference is with the Trump organization as opposed to the Trump as president. Do you find any distinction in that and if not, who are we talking about here? Who are the real players?

 

Charles J. Glasser, Jr.: To begin with although to be fair, more than a few news outfits, co-mingle — and this is not just with trump, the campaign, the candidate’s private life, the candidate’s business history, previous record they all sort of get blurred together, but I have to say that — how do I put this — it’s much ado about nothing in a lot of ways.

 

(00:05:19)

 

There’s no prior restraint allowed this country except the most unbelievable circumstances, plans during war time that sort of thing and the Trump organization could not stop the Post from publishing something any more than they could stop a thunderstorm, I mean, the Post has done that stance before as you know with the Pentagon Papers. So, I have to say though that looking at this issue, it’s important to sort of take a reality check and see what’s going on behind all this as a practical matter and you think about. Is this is Trump doing his is eye poking, trolling whatever you want to call it and CNN took the bait, Marty Baron took the bait. When you compile a dossier on someone, you do it, you don’t announce that you’re going to do it, that’s just harassment, that’s just not the legal sense but that’s just annoying, right? So, that’s sort of my first observation is Trump doing his Trump thing. In addition, Stephen had mentioned the first amendment where I do think it becomes critical and again, professor, help me out if you think I’m off the target here. Carried to its extreme, it does raise serious fourth amendment issues or can if abused, don’t you think?

 

Stephen Gillers: It can if abused, but that kind of assumes the issue. I think that it is any subject of a news story or a repeat subject of a new story as Trump and Trump-related entities are have a right to challenge the accuracy of the news story, we can call that a dossier or we can call it a file dossier has a more nefarious, but I would call it a file and I think that if Fahrenthold is writing things that Trump believes are inaccurate or unfair, he has a right to compile information to challenge it. That’s part of the give and take of the profession of journalism.

 

1. Craig Williams: Do you think he has the right to use the strong arm of the law to do it that is say justice department or FBI?

 

Stephen Gillers: Well, Dear is not the justice department or the FBI, but I hear to be fair to Dear, what I hear him to be saying, the best light you can put on what Dear is saying is, look, we believe that you’re biased and we believe that you’re wrong and those are traditional ways of challenging the credibility of a witness, what a journalist is, is a witness albeit not in the court and ways you challenge witnesses is by pointing out that they’re wrong or that they’re untrustworthy. So, if what the White House is doing is saying, “we’re collecting information that will prove that your facts are wrong or that you should not be trusted” I think that’s within their prerogative, that’s something that any organization would do when the subject of a harsh news story.

 

1. Craig Williams: Do you think there’s any difference here given the fact that there’s an outside entity involved and this like the Pentagon Papers were largely about the history of the Vietnam war and that was a big concern for people, but here we have not only the presidency but, we also have the Trump organization, the owners of Mar-a-Lago supposedly where this $900,000 is spent. Does the existence of an outside business entity threatening the Washington Post or Fahrenthold play into this at all?

 

Charles J. Glasser, Jr.: I mean, I have to tell you it. It happens in the newsroom, this happens every day as I am very the proud recipient of an insane screed the Washington Post wrote about it before he was a candidate. Trump wrote a personal letter to me that was completely bananas and threatening. Six ways from Sunday, he actually — by the way, he does refer to himself in the third person which is already a sign of something odd but the companies threaten all the time, entities threaten all the time, that’s dog bites man. What’s interesting here to me anyway is that I had referred to Marty Baron and particularly CNN really taking the bait. If you read the CNN file about this, they use the modifier in the second graph astonishing that Trump would do this.

 

(00:10:01)

 

Look, I absolutely do not think any journalist should be subjected to covert surveillance under any circumstances. That said, let’s take a look back, this has been going on a long time and way predating Trump and even predating Obama, I mean, to be sure ask the folks at the AP how they feel about having their communications intercepted by the Department of Justice or James Risen having his material stolen or Cheryl Atkinson who actually had her computer provably broken into and it tracks back to a federal government. So, it’s not astonishing. Some aspects of doing journalism, I mean, when I was a reporter and covered Senator Kennedy’s 1980 run, I was required to go through secret service vetting. So, there’s a dossier on me and it’s just an old story and I mean Nixon had the whole enemies list as you remember. Stephen, you were probably on it.

 

Stephen Gillers: Can I bring it back to the immediate event, I mean, we don’t want to mix apples and kumquat here. Stealing documents is a different caliber, different kind of problem. Let’s not bury the lead. What is troublesome about the Washington Post story and the New York Times story on the same subject is not that a subject of a news story tries to show, tries to collect information showing that it should not be trustworthy for the legitimate reasons that it should not be trustworthy. If so, what is nefarious here is the suggestion that the information that is being collected is not about those legitimate questions namely is this story trustworthy, is this reporter trustworthy, this sounds an extortion. What Dear is suggesting and the unnamed Trump supporters are suggesting is that they have dirt. They have embarrassing information about reporters and editors and their families that they’re prepared to release publicly maybe anonymously publicly. If the reporters continue to do their job, that’s what is troublesome here. Not that they wish to challenge the story’s accuracy.

 

1. Craig Williams: Stephen, is there a right to have a freedom of information act request to find out what’s in that dossier and for that matter, can we find out what’s in Charles’ dossier?

 

Stephen Gillers: Well, of course, you could have the request and I imagine that the White House would find one of the non-exemptions the freedom of information act requests to be applicable in which case it will refuse to give it to you and in the year 2024, you might get some of it. So, it’s not going to be very helpful. Look, what’s going on here is part of a larger pattern. This even in his perverse way a brilliant pattern. What Trump understands is that information is power and if he can control it, if he can deny for example, congress, information which he does. He does not share information with congress, he does not allow executive branch people to testify except on occasion. If he can undermine the credibility of another source of information namely the press, he is stronger or he sees himself as being stronger, but he is. If he can create public distrust and critical arguments about him, that’s his objective. He has a private company, it doesn’t have to report any of his internal business operations publicly because there are no shareholders. He understands that containing information including his tax returns is power and what we’re seeing here is an effort to threaten and cower reporters, it won’t work, but that’s what we’re seeing in order to keep these stories from appearing.

 

1. Craig Williams: Before we move on to our next segment, we’re going to take a quick break and hear a message from our sponsors. We’ll be right back.

 

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1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Professor Stephen Gillers, professor of law at NYU School of Law and the author of the book, Journalism Under Fire: Protecting the Future of Investigative Reporting. And Attorney Charles Glasser, an expert in international media law and author and editor of the, “International Libel and Privacy Handbook.” And right before the break, we were talking about Trump’s, really it’s true how this conversation probably needs to morph into Trump’s control of information. Charles, I know you wanted to make a point.

 

Charles J. Glasser, Jr.: Professor Giller is absolutely correct in so far as if this –look, let’s not mince words. The man is a bully for lack of a better word. Trump is a bully and that has been his style in business and whatever for a long time and it’s a certain archetype of CEO in New York. All that being said, I kind of doubt the efficacy and I’m not by any means suggesting that Professor Giller is overreacting, I’m not. I think that Fahrenthold and Marty Baron and all reporters and their lawyers should be on guard against attempts at intimidation. That said, I think a lot of it is is just his meaningless bluster, it’s like his Twitter account, it’s just gibberish really in a lot of cases, it’s just gibberish.

 

1. Craig Williams: Stephen, what has this done to the American public’s trust of information coming from the federal government and from reporters?

 

Stephen Gillers: Well, one would hope that it would undermine the credibility of the White House, but I’m not so sure that that’s true, it may be. Regrettably, it may be that the fake news, challenges and the denial of information has to some extent work to the White House’s benefit. We should also look at the legal angle here because this is about lawyers. If these threats are coming from a government official which Dear is, there is a very likely claim that could be filed in federal court, the civil rights claim that the ability of American’s journalists to exercise their first amendment rights is being compromised by the threats. The government can’t do that. The government can’t threaten you unless you turn over your property. Well, you are right to report and your reputation as a reporter is property and so there’s a possible civil rights claim here and there’s a possible extortion claim as well. If I say to you unless you stop doing something you’re legally allowed to do, I will report your extramarital affair or I will –

 

1. Craig Williams: That’s extortion.

 

Stephen Gillers: That’s extortion that is clearly extortion and if they’re saying to Fahrenthold and others, unless you stop digging, we are going to embarrass you, we’re going to embarrass your family, we’re going to embarrass your colleagues at the Post. That’s extortion also and so I think they’re on risky territory in making those threats.

 

1. Craig Williams: Charles, have you seen this before, have you seen this in other presidential campaigns and in other presidential terms?

 

Charles J. Glasser, Jr.: I think in 1983 angle is interesting, civil rights act, but just for the record, U.S. v. Paul makes it clear a reputation is not a fungible right as far as civil rights act goes, that’s been tried before. So, that’s one thing, but the extortion thing on the other hand probably has more legs. That being said, I wish there were more legalese that I can import into it but this is where history becomes more important now. I want to make it abundantly clear and I’m sure you accept my sincerity here. I don’t condone this at all, but let’s not kid ourselves. Politicians at all levels have their communication’s experts try and wheedle, threaten, bribe and/or manipulate reporters into shaping a story or ignoring a story and I have to say something very important here and that is that your question, Craig about trust and credibility of the press, the media consistently forgets that a lot of these wounds, too many of these wounds are self-inflicted. I mean, the whole James Bennet fiasco where the editorial page editor was fired for not reading an editorial. I want that kind of job and it turns out that as you probably know the second circuit has remanded Sarah Palin’s case about a New York Times editorial and Erik Wemple of the Washington Post wrote a very clear fair and concise article about frankly how the times genuinely screwed up.

 

(00:20:23)

 

And in my classes, I teach a section called fake news versus wrong news and there is a big difference. So, Trump says it’s fake, I say it’s wrong. Okay. There’s a difference and as we all know; the first amendment is the right to be wrong for the right reason.

 

Stephen Gillers: Can I just respond to the reputation issue? This is not simply a case of harming Fahrenthold’s reputation. This is a case involving a threat so he foregoes his first amendment rights. So, the property at issue is not purely a reputation, the property at issue is the right to speak without being threatened for speaking.

 

1. Craig Williams: It’s certainly chilling.

 

Stephen Gillers: Yeah and maybe there is a prior restraint angle to it. I mean, in a way. I mean, making somebody shut up, right?

 

1. Craig Williams: And it seems to be the purpose of the quote but I wanted to go back to Stephen for a moment and ask a question because what you raised, Charles really kind of puts the issues here. You talk Stephen about apples and kumquats. Supposedly, journalists have this kind of ethics code that they’re supposed to follow. So, that exists, the canon exists, but the president’s equivalent doesn’t exist. Is that really an apples and kumquat situation, does the president have an ethical responsibility to tell the truth?

 

Stephen Gillers: Well, there are government ethics and government acts, but the major constraint on a president is law. The problem is that the law has been unable to contain Trump’s excesses either because no one has the standing to challenge some of his activity or because the challenges take months and months and years. So, repeated appeals to the supreme court where matter can sit for quite some time effectively mute the ability of the court to contain him. What we’re learning with Trump is that the idea of checks and balances doesn’t work when you simply refuse to obey norms or even laws because of the toothlessness of the legal remedy given the length it takes cases to be decided.

 

1. Craig Williams: Well, gentlemen, it looks like we’ve just about reached the end of the program. There’s been a wonderful discussion. I’d like to take the opportunity now to invite you both to share your final thoughts as well as whatever contact information you’d like to provide. Charles will turn to you first.

 

Charles J. Glasser, Jr.: Well, thank you again. And thank you, Stephen as always. We should disclose to our listeners that I was a student who is at NYU and I still carry a lot of that knowledge with me. I’m still of the mind that yes it’s outrageous and no an honorable president would not and should not behave like this, talk like this, but presidents have had pretty bad relationships with the press, we forget that Harry Truman wrote a letter threatening to punch a reporter and he meant it and the reporter’s sin was giving his daughter, giving Truman’s daughter a bad review. She was apparently a singer of some sort and there’s a letter on White House stationery, “if I ever see you, you’re going need a jock strap, when I’m done with you.” So, be that as it may. Trump is certainly no, Harry Truman we’ll all agree there. I think the press is partly to blame, I think that the press needs to stop chasing the laser pointer and overreacting with the hyperbole. Fahrenthold is right and Professor Gillers is right and it is an attempt to shut him up. It is a shame that that’s not a codified ethical restraint on the executive branch.

 

Stephen Gillers: Unless it’s called extortion or a violation of civil rights. Well, this is not a surprise and it’s not the most egregious thing that the Trump administration has done to undermine the credibility of the press, but also I think we have to recognize that powerful news organizations and the Post is and the Times is and the journal is, they go into that sandbox and they have to be prepared to be counterpunched. It just comes with the territory and one hopes that and expects and I’m confident that none of this will deter the work that they are doing the important work, that they’re doing even more important now that we have a president who lies multiple times a day. Another way of challenging the accuracy of information is simply by claiming it’s not true when it is. So, we’re going to have to live with this for another several months or another four years and hopefully the country will survive and return to its former self. [email protected].

 

1. Craig Williams: Great. Well, thank you very much gentlemen. We’d certainly appreciate it. As we wrap up, I’d like to thank our guests, Steven Gillers and Charles Glasser for joining us today. It was a pleasure having you both on the show. For listeners, if you’ve liked what you heard today, please rate us on Apple Podcast to your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. You can join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

 

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