Two Addendums To Ben Wittes’ “How to Read an Investigation”

It’s September 4, 2017. I’m going to say something nice about Ben Wittes.

His post, How to Read a News Story About an Investigation: Eight Tips on Who Is Saying What, is a useful primer for how to read all these stories about the investigations into the Russian hacks. As someone who covered the last major Presidential investigation (the CIA Leak Investigation) far more closely than Ben, in large point because the sourcing on those stories was so badly abused, I’ve been thinking about a similar post on how to cover such cases (which would include the advice “don’t do tick tick tick boom tweets because they turn our legal system into a game”). I’d include much of what he wrote here. I have slightly to significantly less faith in the sourcing rigor of journalists than Ben does — a skepticism that served me well even before the time we learned Pulitzer prize winner Judy Miller agreed to refer to the Vice President’s Chief of Staff as a “former Congressional staffer” to hide that leaked classified information (possibly including Plame’s identity) came from the vicinity of PapaDick. But in general this is a useful start.

I’d two more general rules, though. First, while Ben implicitly suggests you need to consider the beat of the journalists in question in this passage, I’d make it an explicit rule. Consider the beat of the journalist writing the story.

The story is attributed “to interviews with a dozen administration officials and others briefed on the matter.” This is a show of strength upfront on the part of reporters Michael Schmidt and Maggie Haberman (who, as an antecedent matter, both have a great deal of credibility with me). They are signaling that their sourcing is broad and that at least some of it comes from within the executive branch (“administration officials”). Applying Rule No. 5, note that this wording is consistent both with sources attached to the investigation and with sources in the White House or in the Justice Department. Note also that Haberman is a White House reporter famously well-sourced with the group of people immediately around President Trump.

The sources for the triumvirate behind a long string of big WaPo Russian stories — Greg Miller, Ellen Nakashima, and Adam Entous — are going be different than the sources for the more recent triumvirate leading the pack on Russia stories — Carol Leonnig, Tom Hamburger and Rosalind Helderman, and it makes a difference on the impartiality of the sources.

In addition, while Ben describes how much lawyers who aren’t prosecutors like to leak (prosecution teams do leak, but very very very carefully), he doesn’t say something else. Leaking to the press is a very good way for co-conspirators to communicate with each other, without risking obstruction charges for doing so. So when you’re trying to understand why a likely legal source is leaking something, it’s worth considering what information that passes on to co-conspirators. For example, such leaks are a good way to compare notes on a false story. Or, in the case of dumb Don Jr who released the emails behind the June 9 meeting, it’s a way to ensure that your co-conspirators know what evidence that might previously have been hidden law enforcement may be looking at. So it’s not just a good idea to remember that lawyers leak a lot (and if those lawyers’ clients just appeared before the grand jury, their information about questions raised would only be second-hand). It’s a good idea to consider what information is not actually intended for you, the dear reader, but rather is intended for co-conspirators, up to and including the pardoner-in-chief.

17 replies
  1. SpaceLifeForm says:

    OT (at this point in time): Wargames

    “a strange game” in which “the only winning move is not to play.” WOPR relinquishes control of NORAD and the missiles and offers to play “a nice game of chess.”

    His fears were prompted by a statement from Vladimir Putin that “artificial intelligence is the future, not only for Russia, but for all humankind … It comes with colossal opportunities, but also threats that are difficult to predict. Whoever becomes the leader in this sphere will become the ruler of the world.”

    Hashing out his thoughts in public, Musk clarified that he was not just concerned about the prospect of a world leader starting the war, but also of an overcautious AI deciding “that a [pre-emptive] strike is [the] most probable path to victory”.

  2. Peterr says:

    I have to say that Ben’s opening sentence does not fill me with confidence about his journalistic chops:

    Over the past few months, I’ve been consistently surprised at the assumptions people make about who is leaking—or lawfully and properly disclosing—material to newspapers that have been breaking stories on L’Affaire Russe.

    If he’s been consistently surprised, he either hasn’t been paying attention or he’s pretty clueless.

    Ben also has a major undefined term in his piece, that undermines what he’s trying to lay out. That term is “reputable journalists” as he uses it in his list of caveats:

    Second—and this is really important—the rules I’m describing here are rules that reputable journalists follow. Matters get far less predictable and interpretable with stories reported by unscrupulous people and organizations—much less the legion of “citizen journalists” who make all kinds of claims online. The less elite and established the publication behind a given story, the less the rules I’m describing here may apply. For some voices, there clearly are no rules at all.

    By his sloppy terms in this paragraph, I’m guessing Marcy falls into the “citizen journalists who make all kinds of claims online,” that ranks right below unscrupulous people and organizations. All in all, this reads like the ultimate “out” when something doesn’t fit his model. Again, this does not fill me with confidence about the yet-to-be-disclosed rules.

    Reading on . . .

    The rules themselves, as you note, seem pretty good. Again, Ben throws around lots of undefined modifiers, distinguishing in his head “lazy” reporters from “better” reporters from “good” reporters (see Rule 6) but declining to be clear about how to tell the difference between these groups — other than whether a given reporter follows Ben’s rule, that is. This, my friends, is called circular reasoning.

    One missing item from both Ben’s piece and your post, Marcy, is that in a given story, a person can both be quoted by name on the record and also be an unnamed source. “I’ll tell you X on the record, but when I tell you Y you can quote me but can’t use my name.”

    Finally, two final suggestions for other rules, or at least significant observations about these rules.

    (1) Leakers generally want to make themselves look good. In the first story Ben applies his rules to, the description of Don McGahn is a picture of a good attorney trying to rein in an unruly client. Who would have an interest in getting that impression of the WH counsel out in public? Don McGahn, for one.

    (2) Leakers also like to make their opponents look bad (or at least look worse than the leaker). Again, to use this excerpt about McGahn, it also puts McGahn on the side of the angels and Stephen Miller on the side of the devils. When you have such bitter bureaucratic battles going on in the WH with as ineffective a chief of staff as Reince Priebus, leaks become a vital tool in tearing down your in-house opponents and protecting yourself and your turf.




    • emptywheel says:

      I agree about Wittes’ arrogance about journalists. Which is part of why I reminded that the kinds of journalists he loves are among the most egregious.

      I think he meant to include the “quoted people are often the anon source” in “Rule No. 8: Note Who Is Not in a Story Declining to Comment—and Who Is,” but I agree it should be far more explicit.

      And I probably would have included a piece on pre-emption, which seems to be one of Trumpsters’ favored efforts (as with the Michael Cohen leak).

      • Peterr says:

        I think you’re reading too much in to Rule 8. Ben is making the distinction between saying someone declined to comment vs declined to be quoted: “The newspaper reporting that a person did not, in fact, comment is very different from its reporting that he declined to be quoted. And both are different from it reporting that a person didn’t return calls or could not be reached.”

        What I’m saying is that there are times when a source agrees to be on the record about X but not about Y, and the story gets written in such a way that the reader might be led to think that these are two different people speaking when in reality they are one source, not two. I know I saw this with the Libby story but I can’t recall the details now.

        • emptywheel says:

          Yeah, I know what you’re saying. ANd I agree that’s a key rule — I actually contemplated raising it here myself, because it’s a really important one (one place it showed up was in Novak’s original column, which hid a later Libby comment).  I guess I was being overly generous to Ben over and over.

  3. bmaz says:

    I’d just like to add that the thought that non-prosecutors necessarily “leak” more than prosecutors chafes me a little. I am not so sure about that.

    In fact, what I have long seen is that defense attys don’t “leak” so much as just run their mouthes in full frontal view. Which they can certainly do, even if it is self serving and usually detrimental to the client.

    It is more delicate for prosecutors due to many factors. But I do not think they are, overall, that much less pernicious in this “leaking” than the defense side. Not at all. Plus they have all kinds of relationships and modalities (you think leaks from LEO’s are never sanctioned by prosecutors??) that individual defense attys don’t necessarily enjoy.

    I suppose this is kind of tangential in a way from the weight of the post and Peter’s comment, but needed to be said.

    • Peterr says:

      I was wondering what you’d think of that discussion. I agree completely with the “run their mouthes” [sic] comment, as it fits much of what I’ve seen from outside the bar community.

      you think leaks from LEO’s are never sanctioned by prosecutors?

      This. 100x this.

      “You know I can’t comment on that,” says the prosecutor to the reporter. “But on a completely different subject, have you met Lt. So-and-so? I think you two might have a lot of things to talk about. Let me give you his number.”

      See “McCulloch, Robert, Non-prosecution of Darren Wilson”

    • emptywheel says:

      Yeah, in addition to being too credulous about the integrity of journalists Ben is WAY too credulous about the leaky sieve that is the FBI.

    • emptywheel says:

      Prosecutors get to make aggressive claims in public, and they usually get to set the terms of scope, meaning they can bring in unrelated stuff even if the judge hasn’t deemed it relevant.

      So they have other methods that don’t even require leaking.

  4. orionATL says:


    the comment i will make below belongs with this emptywheel post:

    but comment there is closed, so i’m going to put it here because it deserves notice and discussion as the the most important economic policy move the national democratic party could make.

    this new approach to the economy and to economic policy was apparently given a boost by the response to the firing, by the liberal think tank New America, of the scholar barry lynn, an event ew picked up and posted about earlier than the big media dinosaurs.

    sometimes it’s a big advantage to be one of those furry little mammals hiding under leaves and in trees in the land the dinosaurs roam :)

    • bmaz says:

      Welcome back! It has been a very long time, and your voice sadly missed.

      But is a spelling/grammar notation the right entry? Are there not substantive things afoot?

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