Big Media Ignoring the Who What When Why of GOP Apology for Trump’s Crimes

Even before and especially in the wake of Trump’s guilty verdict, members of the MAGAt Party has stumbled over themselves to declare fealty to Donald Trump, and in the process to demean rule of law.

Chris Hayes described the process as a mob style pressure campaign.

This enforcement action is happening because the Trump people and the Fox people and most of the people in the upper echelons of the party understand: the only way to bring Trump down, to end his political career,  is if Republicans turn against him.

As long as they stay unified, no matter what he does, no matter how abhorrent, or how dangerous, or how criminal, or how vile, no matter how much of a threat he is to the nation, if they all band together, then in a polarized landscape, they can basically keep him afloat and make it essentially a coin toss.

That is why they dressed up like him during the trial and rushed to debase themselves in cringe-inducing fashion on any live TV camera they can find.

[snip]

There have only been two times in Trump’s political career where that dynamic of Republican unanimity has broken, where Trump was near political death.

One was in the aftermath of January 6, the violent assault on the Capitol that he stirred up, when everyone was criticizing him, when the blood was still on the floor of the Capitol including Lindsey Graham and Kevin McCarthy. Remember that? Trump’s approval rating dropped below 40%, about the lowest level it reached. Mitch McConnell was testing the waters for a vote for an impeachment conviction.

If it had not been for that man, Mitch McConnell’s abject, enduringly pathetic cowardice and McCarthy’s relentless quest to have the third shortest speakership in history — not to mention the legitimate fear Republican senators had for their families about violence — we wouldn’t have this issue now. They could have just voted to convict him and bar him from future office. Done.

Ironically enough, the other time — the other sort of near political death experience — was in the wake of the Access Hollywood tape. And just about every elected Republican tried to distance themselves and criticize him. Republican National Committee Chair Reince Priebus was even considering how to get him off of the ticket.

But Trump managed to hold it together, due in no small part to the fact that right at that moment, he got a guy named Michael Cohen, his lawyer, to pay to keep the porn star from talking. And so the Republicans never heard about that story, nor did the public, which could have been the political death blow.

The lesson he learned is if you enforce this totalitarian unanimity, you can keep chugging along.

Journalists not named Chris Hayes are covering this too.

But they’re covering it differently.

Like this 1,400-word story from WaPo yesterday.

It describes that Republicans are backing Trump’s false claims of victimhood. It quotes at least twelve Republicans undermining the verdict, most in inflammatory terms. It even notes, in lukewarm fashion, that Trump’s claims of victimhood have no basis.

But even though it gives ample platform to Bible-thumper Mike Johnson to screech, it doesn’t use the word “porn,” opting instead for “hush money.” It doesn’t use the word “fraud,” opting instead to describe “falsifying business records.”

If you were Martian dropping onto the Earth to learn what the hubbub was about, you would never know that the Speaker who claims to live by the Ten Commandments was running cover for a guy who paid $400,000 to cover up fucking a porn star while his spouse was home with his youngest kid.

This one, also close to 1,400 words, is worse. It doesn’t even mention what crime Trump was convicted of (it links to a piece describing that Trump was, “falsifying business records to conceal alleged affairs.”

Donald Trump — in the form of his University, his charity, his real estate empire, and finally his biological person — has been adjudged a fraudster over and over. Along the way there’s the lady he assaulted in the Bergdorf Goodman dressing room and the porn star he fucked who, he said, reminded him of his oldest daughter.

And almost nowhere, along the way, are journalists asking Republicans — or simply stating as fact — that the entire party has decided to apologize for fraud and fucking porn stars.

The press is giving Republicans a pass for conducting a wholesale assault on rule of law. Republicans are disavowing almost every thing they claim to stand for — and when you throw in the 140 cops assaulted on January 6, it would include everything — and yet the sordid details of what Trump actually did have disappeared.

Trump paid $400,000 to cover up fucking a porn star; he grossed it up to make sure it he’d kill the story in time.

It’s not just that Republicans are enforcing totalitarian unanimity in supporting Trump for fucking a porn star and covering it up. But that din of slavering Republicans debasing themselves to Donald Trump has silenced coverage about what it is Trump was found to have done.

Trump paid $400,000 to cover up fucking a porn star. Make the Bible-thumpers own that when they rush to defend him.

High Court Decision May Pose New Challenges to Julian Assange Prosecution

The British High Court today issued a ruling provisionally giving Julian Assange permission to appeal his extradition on three grounds. But before he can do that, the US has an opportunity to give assurances on those grounds to address specific concerns.

The court put everything on hold, then, for 55 days to allow that reassurance process to happen.

We adjourn the renewed application for leave to appeal on grounds iv), v) and ix). The adjournment is for a period of 55 days until 20 May 2024, subject to the following directions:

i) The respondents have permission to file any assurances with the court by 16 April 2024.

ii) In the event that no assurances are filed by then, leave to appeal will be granted on grounds iv), v) and ix).

iii) In the event that assurances are filed by 16 April 2024, the parties have permission to file further written submissions on the issue of leave to appeal, in the light of the assurances, such submissions to be filed by the applicant by 30 April 2024, and by the respondent and the Secretary of State by 14 May 2024.

iv) In the event that assurances are filed by 16 April 2024, we will consider the question of leave to appeal at a hearing on 20 May 2024.

One of those three grounds — that he might become eligible for the death penalty — will be easily dispensed with, as the US easily dispenses with similar concerns in terrorism cases.

When I first read the judgment, I assumed the other two issues would be similarly dispensed with easily (and the judges certainly seem inclined to grant extradition if they get appropriate assurances).

The third ground for appeal, after all, pertains to whether Assange will be treated as a defendant like an American would be. And since the Espionage Act doesn’t allow for content-based defenses, Assange would be no worse situated than any other Espionage Act defendant — arguably including Donald Trump (whose 2010 attacks on Assange were one basis for raising concerns about the death penalty).

But the second basis for appeal may be more tricky for the US to issue assurances.

It has to do with whether the First Amendment gives Assange equal protection to what he’d get under Article 10 of the European Convention on Human Rights.

The judges seem inclined to adopt Baraitser’s analysis that, so long as Assange can rely on the First Amendment, it would (and therefore that if the US says he can do so, the extradition can be approved).

However, we agree with the judge that extradition of the applicant would not involve a flagrant denial of his article 10 rights. In summary, that is because:

i) The First Amendment gives strong protection to freedom of expression, which broadly reflects the protection afforded by article 10 of the Convention. On the assumption that the applicant is permitted to rely on the First Amendment, it is not arguable that extradition will give rise to a real risk of a flagrant denial of his article 10 rights.

ii) Counts 1 to 14 and 18 concern conduct which is contrary to the criminal law and which does not directly concern free expression rights. The prosecution of such conduct does not involve a flagrant denial of article 10 of the Convention.

iii) Counts 15, 16 and 17 concern the publication of the names of human intelligence sources. There is a strong public interest in protecting the identities of human intelligence sources, and no countervailing public interest justification for publication has been identified.

iv) There were strong reasons, as the judge found, to conclude that the applicant’s activities did not accord with the “tenets of responsible journalism”.

But as I noted here, that analysis is fine for the extradition question. It’s fine to rule that Assange would get at least the same protections as he would in Europe.

It’s another thing altogether for use in a US courtroom.

That’s because the First Amendment doesn’t include a balancing test of privacy versus public interest present in the ECHR.

Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

This part of the ruling, in particular, would not translate into US law. There is no such privacy balance in the US outside of much weaker defamation laws. And so this part of the ruling does not offer much comfort with regards the existing charges as precedent in the US context.

Whereas in Europe, you have to act like a journalist to get protections as one (which Baraitser said Assange did not, especially not with respect to the three counts of publishing the identities of US and Coalition sources, which had little public interest value to counterweigh the harm he did to those whose names he published), in the US one does not have to adhere to journalistic principles to be protected by the First Amendment.

The US may have real concerns about giving assurances sufficient to meet this particular concern. If they do, Assange would be able to argue that the US was unfairly applying prior restraint to him in a way it doesn’t others — including Cryptome’s John Young, who has repeatedly tried to intervene in Assange’s case in various ways, each time on the basis that he published the State cables without punishment.

All that may be for the best. Faced with such a choice, the US might choose to drop the case entirely (or drop the three most damaging charges, if they are able to do that). I doubt they would drop it entirely, but they could.

They could also pursue the misdemeanor plea the WSJ recently reported, though as reported that seemed like mostly Assange-derived fluff.

Or they could limit the kinds of evidence they use on these charges. One thing that distinguishes Assange from journalists — and from Young — for example, is that prior to publishing all the cables without adequate redaction, he first shared a subset of them with Israel Shamir, who then gave them to (at least) Belarus. At least for the state cables, prosecutors could prove the dissemination charge without relying on publication altogether. Doing so would not only mitigate the damage this precedent would cause, but would get to the real damage that releasing those identities did, willfully giving dictators advance notice to retaliate against US sources before the US could take mitigating measures.

Finally, the might just note that Bartnicki does not apply because Assange allegedly was involved in the theft of the documents in question. Who knows. Depending on what happens with the Project Veritas investigation associated with Ashley Biden’s diary, DOJ might soon have a US citizen being prosecuted in a similar situation.

I imagine the US would have no problem assuring the Brits that Assange would have the same stinky content-based First Amendment rights as other Espionage Act defendants. The question is whether they’d be willing to allow Assange to argue that his prosecution amounted to prior restraint.

Why Reality TV Star Donald Trump Is More Trusted than Most News Outlets

Today, Donald Trump is attending the first day of the fraud trial that he already substantially lost.

Depending on who you believe, he is either attending because he’s using his attendance to delay a deposition in his own lawsuit against Michael Cohen (who will also be a key witness in this fraud trial).

He cited this as his excuse for skipping out on 2 deposition days in his federal case against ex-lawyer Michael Cohen.

If he didn’t show up, he’d be in contempt of court.

Or, he’s using it as a way to affect the outcome — the outcome that was already substantially determined by Judge Engoron’s ruling last week, a ruling addressed in passing, without explaining how he can affect something that has already occurred.

For Mr. Trump, his attendance at trial is far more personal than political, according to a person familiar with his thinking. The former president is enraged by the fraud charges and furious with both the judge and the attorney general. And Mr. Trump, who is a control enthusiast, believes that trials have gone poorly for him when he hasn’t been present, and he hopes to affect the outcome this time, according to the person.

In his courthouse remarks, Mr. Trump lashed out at the judge’s earlier fraud ruling on his property valuations. “I didn’t even put in my best asset, which is the brand,” he said.

I think Trump is attending to spin a judgment that has already been issued as, instead, an outcome he predicted.

Today.

Days after the ruling.

Here’s how it works. On the way into the trial, Reality TV Star Donald Trump made a public statement in which he told his cult followers that the judge that the judge was rogue and the prosecutor was racist. He renewed his claim that Judge Engoron erred by using Palm Beach’s valuation (the one they made in 2011, not in 2021) rather than his boast that Mar-a-Lago is worth a billion dollars.

Few outlets reported that 77-year old Reality TV Star Donald Trump had slurred his words.

No one asked why his spouse hadn’t accompanied him to this trial. (Though this time, one of his co-defendant sons accompanied him to the courthouse.)

Few outlets reported Tish James’ comments about how no one is above the law.

Many outlets were so busy reporting on Reality TV Star Donald Trump’s statements that they didn’t explain that Trump’s Parking Garage Lawyer, Alina Habba, didn’t even try to push for a jury trial, something Judge Engoron confirmed as the trial started.

At least some of the outlets that reported Chris Kise’s arguments about valuation did not explain that those issues were already decided, in a ruling last week.

Most outlets reported that Reality TV Star Donald Trump glared at The Black Woman Prosecutor on his way out for lunch. Some also reported that she laughed that off.

On the way back in the courthouse, Reality TV Star Donald Trump made even more incendiary comments about the judge who already did and will decide his fate. Reality TV Star Donald Trump told his followers that the judge presiding over a trial that might lead him to lose his iconic Trump Tower should be prosecuted and was guilty of election interference.

Many observers clucked that such a stunt would lead the judge — the one who already ruled against Trump — to rule against him.

Trump is going to lose this trial. Know how I know? Judge Engoron already ruled against him!

But most of Trump’s followers don’t know that. Most of Trump’s followers believe that Chris Kise’s comments about valuation were still at issue. Most cult members will see Trump’s comments today — it won’t be hard, because every outlet is carrying them — and remember that before the trial, Trump “predicted” that The Corrupt Judge and The Black Woman Prosecutor would gang up on him.

Reality TV Show Actor Donald Trump used his presence at the trial to create a reality in which he will have correctly predicted a loss that was baked in last week. Because he “predicted” such an outcome, his millions of cult followers will not only treat him as more trustworthy than the journalists playing some role in Trump’s Reality TV Show, cluck-clucking about his attacks on justice without focusing on the fraud and the more fraud and the already adjudged fraud.

Not only will Reality TV Show Actor Donald Trump have “predicted” the outcome, leading his followers to renew their faith in his reliability, but they will implicitly trust his explanation: that he lost the trial not because he is, and has always been, a fraud, but instead because Corrupt Judges and Black Prosecutors continue to gang up on him.

And in the process, Reality TV Show Actor Donald Trump will have continued the big con, the very same fraud of which he has already been adjuged. He will have once again distracted from his own fantasy self-worth and instead led people to report on his golden brand.

When you let Reality TV Show Actor Donald Trump to set the stage, as journalists, you are yet more actors in his Reality TV creation.

It’s not that journalists are bad or biased or corrupt (though some of their editors are). It’s just that Trump already cast them in a role and they’re playing it to a T.

On Judge Aileen M. Cannon

The New York Times is out with a long, interesting, piece on SDFL Judge Aileen M. Cannon by Schmidt and Savage. I won’t call it a hit piece, but it is extremely negatively framed, and in some regards disingenuously so. For a news article, there is no way not to view it as a position piece.

“Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.

Judge Cannon, 42, has been on the bench since November 2020, when Mr. Trump gave her a lifetime appointment shortly after he lost re-election. She had not previously served as any kind of judge, and because about 98 percent of federal criminal cases are resolved with plea deals, she has had only a limited opportunity to learn how to preside over a trial.”

That is the opening salvo. Okay, Cannon is a newish federal judge. So what? You take your federal judges as you get them, not as you want them. Criminal trials are not the only trials federal judges do, they also do civil trials. And complicated criminal hearings, including evidentiary ones, pre-trial that most often lead to pleas. The NYT did not delve into that, to any extent it may exist. The fact Cannon has only four criminal jury trials is not shocking in the least. Importuning that she is incompetent because of that is lame.

In Arizona state courts, I have Rule 10 right to notice a change of judge as a right within 10 days of arraignment or assignment of judicial officer.

There is no such availability in federal court. You get what you get. TV lawyer gadabouts like Norm Eisen are shouting that Cannon MUST recuse, and if not Smith must affirmatively move for her disqualification. Based on a ruling in a short civil matter involving Trump previously. Granted her action in that matter was dubious, to be overly kind. But even the hideous 11th Circuit slapped that down, and she complied with the edict. This is a non-starter, and Smith would be an idiot to attempt it. Attempt that and lose, and you almost certainly would, now you really have a problem.

Would Cannon self recuse? There is no evidence of that to date. My friend Scott Greenfield thinks she should for the sake of her career, while acknowledging there is little to no chance of forcing her off like windbags like Eisen clamor for.

I, which rarely happens, disagree with Scott. It would torpedo her career and be a tacit admission she is a right wing nut job incapable of presiding over any partisan issues. That would not be a good look, does not look like a career enhancer in a jurisdiction like SDFL to me.

Back to the NYT article. It reports:

“But the chances appeared low. Under the Southern District of Florida’s practices, a computer in the clerk’s office assigns new cases randomly among judges who sit in the division where the matter arose or a neighboring one — even if the matter relates to a previous case. Nevertheless, Judge Cannon got it.

That is completely contrary to the facts as I understand them. As I have related in comments previously, anybody who took the job seriously enough to check with the clerk’s office, and current status of the SDFL bench could have seen this coming. Not just as a freak chance, but arguably a likelihood. Smith chose to put his eggs in that basket, and did so.

Another portion of the report literally made me roll out of bed and laugh:

“At the same time, they said, she is demonstrably inexperienced and can bristle when her actions are questioned or unexpected issues arise. The lawyers declined to speak publicly because they did not want to be identified criticizing a judge who has a lifetime appointment and before whom they will likely appear again.”

Seriously?? That describes pretty much EVERY federal judge I have been in front of, irrespective of how long they have been on the bench. This is completely silly land.

Here is another one:

“The Trump case is likely to raise myriad complexities that would be challenging for any judge — let alone one who will be essentially learning on the job.

There are expected to be fights, for example, over how classified information can be used as evidence under the Classified Information Procedures Act, a national security law that Judge Cannon has apparently never dealt with before.”

Seriously? There are a LOT of very experienced federal District judges that have never had to meaningfully deal with CIPA at trial. And most of the ones that have are in DC or EDVA. Again Smith chose this locus, he, and we, will have to live with it. So too should the NYT instead of posting up a somewhat dubious and negative filled report.

The Times report goes on to belittle Cannon’s background and qualification to even serve. But Cannon is nowhere near as bad as many of Trump’s appointments. She is a graduate of Duke and then the University of Michigan Law School. She worked for years at Gibson Dunn and as an AUSA. She is fully qualified, even if you think she should not have been nominated. And the NYT citing “ABA” ratings as still being relevant in any regard seems quaint, at best.

Read the NYT article. I am sure it will inflame your passions. But this is federal court, and the law, where not your passions control things. Am I warm and fuzzy about Judge Aileen M. Cannon? No, not whatsoever, but that is irrelevant. Here is where the issue is, for better or worse. Unless Cannon self recuses, that is where it shall remain.

Employer Rupert Murdoch Turned Out to Be a More Important Tucker Carlson “Spy” Than the NSA

In a piece that I otherwise find unpersuasive, Josh Marshall argued that the reports that Fox News President Suzanne Scott didn’t tell Tucker why he was being fired explain why we’re getting such a conflicting range of explanations for his summary shit-canning.

It’s been reported that Suzanne Scott, CEO of Fox News, didn’t tell Carlson why he was being fired when she gave him the news. If that’s true, that pushes me more to consider this possibility. It also might explain why you have all this miscellany of often contradictory theories and explanations about what “contributed” to the decision. Maybe no one at Fox has any idea and all the sources are basically speculating about possible vulnerabilities they believe must be the answer.

Axios reported that Scott made the decision with Lachlan Murdoch to fire Tucker Carlson Friday night, though other outlets more credibly report that Rupert was also personally involved.

Fox surely anticipated that Tucker would sue, which may be why Scott didn’t give Tucker an explanation for his firing, yet. But that has created a void of uncertainty about the firing.

It is true that Abby Grossberg, the former Tucker producer who has sued Fox in SDNY for the hostile work environment at Fox generally and specifically on Tucker’s show, and sued Fox in Delaware for how they dealt with her testimony in the Dominion case, has an incentive to emphasize her role in the firing (as she has). I agree with Opening Arguments that the DE suit is far more likely to be related (a paragraph from her SDNY suit that has attracted attention, in which Tucker seemingly speaks favorably about statutory rape, is not tied to her own complaints and was already public). But I also think that the DE suit also includes a bunch of stuff designed to leverage Fox’s legal exposure that has nothing to do with the actual complaint. Plus, Tucker has little to do with the main thrust of the complaint; Scott and other corporate people do, so firing Tucker won’t help. Also note, as far as I understand it, the recordings Grossberg referred to in her suit seem to be transcribed interviews not otherwise aired on TV, not private recordings of Tucker.

Of note, the claim that Tucker asked but Grossberg was unable to get a Proud Boy lawyer to claim the insurrection was caused by FBI informants, for example, makes no sense.

Upon information and belief, in early-March 2023, Mr. Carlson attempted to spin and manufacture another false narrative to defray blame from Fox News about the January 6th insurrection, this time, characterizing the Capitol attack as an FBI coup, and not the logical result of Fox News’s reckless 2020 election fraud coverage. Specifically, Mr. Carlson requested that his team investigate the ongoing Proud Boys trial, which he asserted was “taking forever” because the “Biden Administration [wa]s trying to hide the huge number of FBI spies it had placed in the group.” As Head of Booking, Ms. Grossberg was twice directed to reach out to Dan Hull, one of the defense attorneys representing the Proud Boys, who indicated to her that he was available to come on to the TCT show as a guest but emphatically denied Mr. Carlson’s theory. Instead, Mr. Hull insisted that “no one made my client go up the hill. The Proud Boys wanted to,” and the FBI angle Mr. Carlson sought to peddle was “on the conspiracy side.” When Ms. Grossberg relayed Mr. Hull’s message to Tom Fox, a Senior Producer for TCT and her superior, he blithely replied “That doesn’t fit with what Tucker is looking for. You’ll have to find someone else who will say that.” Ms. Grossberg was told to ask Mr. Hull yet again if he would reconsider, to which Mr. Hull replied, “Please just tell [Tucker], if I get on the show, I will walk out if he asks about the FBI setting it up. […] Blaming the FBI for Jan 6th doesn’t cut it.” Mr. Carlson then requested that Ms. Grossberg investigate whether any other defense attorneys, including Steven Metcalf, would tout the conspiracy on air.

Dominic Pezzola lawyer Roger Roots seems to have, as a primary purpose, floating the kinds of conspiracy theories that will attract attention on Tucker’s show or Jim Jordan’s committee. And in his closing arguments, Nick Smith made wild leaps to push the informant angle. So the lawyers willing to make these claims were certainly available (if unwilling to risk a gag order by going on TV). Plus, Tucker’s propaganda about January 6 long predated the Dominion exposure

But Grossberg’s claim might be where this claim, from the LAT, came from (which has, in turn, led to the improbable claim that Epps’ complaints about Tucker’s coverage played a key role).

Murdoch also was said to be concerned about Carlson’s coverage of the Jan. 6, 2021, insurrection at the U.S. Capitol. The host has promoted the conspiracy theory that it was provoked by government agents, and Carlson has called Ray Epps — an Arizona man who participated in the storming of the Capitol but did not enter the building — an FBI plant, without presenting any evidence.

Tucker’s conspiracy theories about January 6 have been far more unhinged than anything Fox has been sued for by a voting machine company, and that’s saying something. But, again, they’re not a recent development — back in June 2021, Tucker defamed Thomas Caldwell’s spouse Sharon based off an unsubstantiated conspiracy theory.

All of which leads me to suspect that this, also from Axios, may best explain what brought Fox to firing Tucker.

A slew of material was uncovered during pre-trial discovery that implicated Carlson. More information could be out there that could be legally damaging for Fox as it stares down more defamation cases.

None of the rest of Axios’ explanations make sense (as Grossberg’s DE suit does, Axios lists stuff that would not implicate Tucker personally). Many of the other public explanations make no sense.

But what does seem plausible is that between Dominion, Smartmatic, and Grossberg’s twin suits, Fox lawyers have spent a lot of time reading through digital records of Tucker’s statements. And — again, it seems plausible — one or many of the things they’ve seen there made it clear Fox could no longer sustain the legal exposure Tucker (and his Executive Producer Justin Wells, who was also shit-canned) represented, possibly even for reasons unrelated to any of the lawsuits.

There’s an irony here.

Back when Tucker first revealed that he had been picked up in NSA intercepts of texts and emails he exchanged with Russian go-betweens, he claimed the NSA was trying to take him off the air. That was in 2021, and his FOIA to the NSA suggested the contacts had gone back to January 2019. In his more recent March complaint that his efforts to cozy up to Putin got “spied on” by the NSA, he revealed the NSA had read his Signal texts, as well as the emails he sent purportedly setting up an interview with Putin.

For all his wailing that the NSA’s access to such comms was an attempt to get him fired, it didn’t happen.

But once Rupert’s lawyers reviewed Tucker’s communications, it did.

I’m not arguing that Tucker’s coziness with Putin got him fired (though Glenn Greenwald keeps complaining, in two languages, that Tucker was fired for falsely claiming that members of the African People’s Socialist Party were arrested because of their opposition to the Ukraine war, rather than because they were on the FSB payroll).

I’m stating a truism. In virtually all cases, “surveillance” of your communications by your employer can have a far more immediate and lasting impact than surveillance of your communications by the NSA.

Update: Daily Beast says the final straw was the number of times he called Sidney Powell the c-word.

Update: In comments, wasD4v1d referenced this Aaron Blake piece making a similar point.

Update: Murdoch property WSJ reports that one of the big factors was the disparaging comments Tucker made about others.

On Monday, Mr. Carlson’s famously combative stance toward members of Fox News management and other colleagues caught up with him, as the network abruptly announced it was parting ways with him, just minutes after informing Mr. Carlson of the change.

The private messages in which Mr. Carlson showed disregard for management and colleagues were a major factor in that decision, according to other people familiar with the matter. Although many portions of the Dominion court documents are redacted, there is concern among Fox Corp. executives that if the redacted material were to become public, it would lead to further embarrassment for the network and parent company.

[snip]

The Dominion court filings are filled with examples of him disparaging colleagues, from calling for the firing of Fox News reporter Jacqui Heinrich for fact-checking Mr. Trump’s false claims about the 2020 election to complaining about the network’s news coverage, including the decision to call Arizona for Mr. Biden on election night.

Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

I really hope that after this and one more post on CJR’s series performing “Russiagate,” I’ll be done for good. CJR is not going to correct, much less retract, a piece that makes clear errors and relies on an undisclosed Russian intelligence product. So all that’s left is to describe what CJR might have done — as editor Kyle Pope has said was his goal — to say something new about the journalism on the Russian investigation, which I’ll do in a follow-up.

But Jeff Gerth said something in last week’s Zoom conference that revealed a(nother) serious cognitive problem with his project. [Since CJR did not record the event, Dan Froomkin downloaded the closed captions to provide an approximation, which I’ve posted here.] When invited to address any question that the moderator, Berkeley School of Journalism Dean, Geeta Anand, had not asked, Gerth addressed why he (claimed to) focus so closely on the NYT.

[Jeff Gerth] 14:03:21
Well, I wanted to address a question that I’ve been asked quite a bit that didn’t come up here, which is why I focused so much on the New York Times.

[Jeff Gerth] 14:03:34
And so my answer to that question is threefold.

[Jeff Gerth] 14:03:39
One. It’s the most influential. No widely read news outlet.

[Jeff Gerth] 14:03:46
Certainly in America, perhaps in the World number 2. It’s the only news organization whose coverage of the Trump Russia matter was repeatedly criticized by the FBI in internal documents that later became public.

[Jeff Gerth] 14:04:11
And obviously, if other news organizations have been criticized by the FBI in documents, I would have reported on that as well.

[Jeff Gerth] 14:04:20
But the New York Times stood out. That regard. So that’s a second reason.

[Jeff Gerth] 14:04:26
And the third reason is, that the times provided a valuable window into their editorial and repertory decision making by allowing a filmmaker into the newsroom for a year and a half, and then you know the fruits of it became a 4 part series that aired in 2

[Jeff Gerth] 14:04:50
1,018, and so that offered invaluable.

[Jeff Gerth] 14:04:57
Raw material for any journalist. Looking at at this story, and a lot of the documentarians work feature.

[Jeff Gerth] 14:05:09
The stories that I was interested in, as well as the stories that the FBI was internally being quite critical of, as well.

[Jeff Gerth] 14:05:19
So those those are the the main reasons why there’s so much in the piece about the New York Times. [my emphasis]

Now, as I have shown, Gerth actually didn’t focus on the NYT. His main villains — those who chased the Steele dossier — published elsewhere. And he ignored almost all of NYT’s Pulitzer winning coverage of Russia. He ignored a September 2016 story revealing how often Julian Assange’s Wikileaks releases served Russia’s political interests. He ignored a December 2016 epic that described the Russian hack-and-leak from the DNC perspective, one that completely debunks Gerth’s claims that the hack-and-leak had limited impact on Hillary’s campaign. He ignored other 2016 Pulitzer-winning stories — on Russia hunting down its enemies in other countriesRussia’s use of disinformationthe elite hackers Russia was recruiting, and Russia’s cultivation of the far right — that show the framework with which NYT’s editors came to their 2017 coverage. He ignored a 2017 report on the Russian contacts that Jared Kushner omitted from his application for clearance. He ignored a 2017 report that Trump knew Mike Flynn had been an unregistered agent for Turkey before Trump appointed him to be National Security Adviser. He may or may not have ignored a 2017 story on how Trump bragged to Sergey Lavrov that he fired Jim Comey to end the Russian investigation, but if he mentioned it, he ignored the Comey part, which undermined Gerth’s own wildly generous interpretation of Trump’s related comments to Lester Holt. Gerth included two (one, two) of three stories on the June 9 meeting, but not the one revealing that Trump had drafted Don Jr’s false statement about the meeting. That’s particularly problematic given that Gerth’s treatment of an interview NYT did with Trump (the only story linked in this paragraph that wasn’t part of NYT’s two Pulitzer winning packages) focused on the dossier and not the discussion Trump had with Putin about the topic he used for his cover story about the June 9 meeting.

This would have been a very different series had Gerth really focused on the NYT, as he claims to think he did.

But something Gerth said really surprised me. A key to his purported reason to (claim to) focus on the NYT is that, he describes, the FBI “criticized” NYT’s coverage. NYT was, “the only news organization whose coverage of the Trump Russia matter was repeatedly criticized by the FBI in internal documents that later became public,” Gerth said. The documentary The Fourth Estate focused on, “the stories that the FBI was internally being quite critical of,” Gerth claimed.

He even asserted that the NYT was the only outlet on whose coverage the FBI was closely focused. “If other news organizations have been criticized by the FBI in documents, I would have reported on that as well.” That claim would be quite a shock to Andy McCabe, whose focus on the WSJ coverage of the Clinton Foundation showed up in two DOJ IG Reports and provided the bogus excuse for his firing. And if Gerth had covered the Mike Flynn case with any level of attention, he would also know that the FBI launched an investigation into some of Sara Carter’s inaccurate reporting, which had been fed to her by Senate Judiciary Committee staffer Barbara Ledeen. Bizarrely, in his coverage of the dossier, Gerth made no mention of the sustained FBI discussions of the September 2016 Michael Isikoff story based on Christopher Steele’s reporting, even though they appear in the DOJ IG Report on the Carter Page FISAs; he discussed the Isikoff story at length, but not the FBI effort to confirm whether Steele or Glenn Simpson was Isikoff’s source.

Gerth doesn’t even account for all the discussions of news coverage in Peter Strzok’s texts, though one such text appears to be one of the two instances of “criticism” of the NYT he speaks of.

My own coverage of Strzok’s sustained attention to such stories — as well as Mueller’s attempts to track how investigative subjects worked the press, including Konstantin Kilimnik — is what made Gerth’s claims so confusing to me.

It led me to suspect Gerth totally misunderstood the purpose of Strzok’s annotation, and thereby saw it as something different than the attempts to stave off clear errors in Devlin Barrett or Sara Carter’s reporting, the woefully belated effort to attribute the Yahoo reporting, to say nothing of efforts to learn how Roger Stone and Kilimnik were planting false stories as part of their attempts to cover their tracks.

The FBI has no business in doing press criticism (though it does attempt to correct dangerously incorrect reporting). It does, however, have reason to track classified or investigative leaks and public claims made by subjects of their investigation. Which is what the reams full of records on Strzok’s work show him doing.

In my own coverage of the Strzok annotation on which Gerth hangs most of his claim of FBI criticism of the NYT, I surmised that it arose out of his focus on leaks. Some of it clearly seems to reflect concern that the NSA might be not be turning over everything it had found. And Strzok’s observation that the NYT falsely believed an investigation into Stone had already been opened may have come in handy nine months later, when they learned from Ann Donaldson that Richard Burr had provided Don McGahn that same false information just weeks later. Indeed, the identification of a common false belief shared by the NYT and SSCI’s Chair might explain why DOJ refused to share the most sensitive details of the Russian investigation with the committee.

I asked Strzok why he had done the annotation. He explained: “Critique played no role — nobody’s got time for that. My purpose was to figure out who’s talking and whether they had info they weren’t sharing with us and/or whether they were leaking to shape the public political narrative.”

In other words, it was perfectly consistent with all the other known efforts by the FBI to track public reports on ongoing investigations. It was an effort to understand what partners and subjects of the investigation were sharing with reliable journalists. And while the annotation shows two clearly incorrect beliefs on the part of the NYT — that an investigation into Stone had already been opened and that the FBI specifically already had call record returns on Trump’s associates — many of the other observations could have multiple explanations, including that the NYT learned of ties, later confirmed, between Trump’s people and Russian spooks before the FBI did. If that’s the explanation, NYT should be lauded, not criticized.

Those stories in which NYT was so far ahead of the FBI are absolutely ripe for review. I don’t fault Gerth’s focus on them; I fault his silence and at times misrepresentation about the rest of NYT’s coverage. But if you’re going to look at those four stories (one, two. threefour) alleging many ties between Trump and Russia — if you’re going to imagine you’re anchoring an entire 23,000 word piece on the NYT based on the FBI attention to several of those stories — you need, first, to understand what you’re looking at.

Gerth imagined he was looking at the FBI doing media criticism. In a sense, he may have been right. What distinguishes Strzok’s apparent effort to understand an outlier NYT story from Gerth’s attempt to understand the Russia coverage is that Strzok had a better handle on the known facts and he tried to understand why reports deviated from those known facts.

Gerth, over and over, simply imposed his own conclusions onto the things that he saw.

LINKS

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

On Tuesday, Columbia Journalism Review quietly staged the Zoom conference intended to address the many problems with Jeff Gerth’s series on “Russiagate” [sic], which I wrote about in a long series. After they rescheduled the original date because of an illness, they did not alert those who had previously signed up, meaning a number of people missed it. Nor did they record the event. It had the feel of a formality designed to claim they had listened, without actually doing so.

Nothing demonstrates the inadequacy of the event so well as the fact that no one — not moderator and Berkeley School of Journalism Dean Geeta Anand, not Columbia Journalism School Dean Jelani Cobb, and not CJR Editor Kyle Pope — addressed the fact that Jeff Gerth had cited an unreliable Russian intelligence product as part of his attack on Hillary Clinton without informing readers he had done so.

I described that he had done so in this post, but I’m going to try to simplify this still further in hopes Columbia will understand how inexcusable this is — how badly this violates every tenet of ethical journalism.

As part of his description of Hillary’s response to being victimized in a hack-and-leak campaign, Gerth described that Clinton approved a plan to vilify Trump by making Russian interference itself a scandal.

The disclosures, while not helpful to Clinton, energized the promotion of the Russia narrative to the media by her aides and Fusion investigators. On July 24, Robby Mook, Hillary’s campaign manager, told CNN and ABC that Trump himself had “changed the platform” to become “more pro-Russian” and that the hack and dump “was done by the Russians for the purpose of helping Donald Trump,” according to unnamed “experts.”

Still, the campaign’s effort “did not succeed,” campaign spokeswoman Jennifer Palmieri would write in the Washington Post the next year. So, on July 26, the campaign allegedly upped the ante. Behind the scenes, Clinton was said to have approved a “proposal from one of her foreign-policy advisers to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” according to notes, declassified in 2020, of a briefing CIA director John Brennan gave President Obama a few days later. [my emphasis]

The claim is a central part of Gerth’s narrative, which adopts many of the theories John Durham floated in his two failed prosecutions, suggesting that the press’ concerns about Trump and Russia stemmed exclusively from efforts — the dossier and the Alfa Bank anomaly — generated by Hillary, and not by Carter Page’s weird behavior in Moscow, Paul Manafort’s ties to oligarchs with ties to Russia, or all the lies Trump’s people told in 2017 about their own ties to Russia.

The claim is a central part of Jeff Gerth’s narrative, and it is based on a Russian intelligence product of uncertain reliability.

These are the notes of Brennan’s briefing to Obama. Here, though not in an earlier part of this section, Gerth quotes directly from the notes (though Gerth cuts the words “alleged approval”).

This is the letter John Ratcliffe wrote to Lindsey Graham about the briefing before he declassified the notes themselves. The letter quotes the notes and unlike Gerth, he does not cut the words, “alleged approval,” so there can be no doubt that that’s what Ratcliffe was addressing. Ratcliffe’s letter explicitly says that the Intelligence Community “does not know the accuracy of the allegation” or whether it was “exaggeration or fabrication.”

  • In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S. Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee. The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.
  • According to his handwritten notes, former Central Intelligence Agency Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

It’s bad enough that Gerth takes out the use of “alleged” included in the notes itself and in Ratcliffe’s description of the report.

But it is inexcusable that Gerth does not tell readers this claim comes from a Russian intelligence report, one that even John Ratcliffe warned might not be reliable, might even be a fabrication! Gerth describes that “Clinton was said” to have formulated this plan, without telling readers that Russian spooks were the ones who said it. He simply adopts the accusation made by Russian spies without notice he had done so.

Before writing this up, I asked Kyle Pope about this twice, first in my general list of questions, then in a specific follow-up.

Finally, you did not answer this question.

Do you believe your treatment of the John Brennan briefing should have revealed the briefing was based on a Russian intelligence document? Do you believe you should have noted the John Ratcliffe warning that, “The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication”? Is there a reason you’re certain the date was July 26 when it’s not clear whether it says 26 or 28?

Is it your view that CJR owes its readers neither notice that it is relying on a Russian intelligence report for its interpretations about Hillary Clinton’s motives nor reveal that the IC would not vouch for the accuracy of that report?

I got no answer. Since Tuesday’s event, I’ve since asked for comment from Dean Cobb, who provided no response, as well as Dean Anand (whose assistant said she may get back to me later).

Jeff Gerth, and through him, CJR, and through CJR, the Columbia Journalism School apparently believe it is sound journalism, in a piece that demands greater transparency from others commenting on sloppy reporting about Russia’s campaign to interfere in the 2016 election, to quote from a description of a Russian intelligence report that may have been part of that campaign to interfere in the 2016 election, without disclosing that he was doing so.

There are unretracted clear errors throughout Gerth’s piece that also went unremarked in Tuesday’s event; rather than explaining why those errors remain uncorrected in a piece complaining about the errors of others, Gerth twice claimed his was a, “very factual chronological story” with no pushback. When I asked about them before doing my piece, Pope dismissed those errors as merely a matter of opinion.

But about this undisclosed use of a Russian intelligence product that could be a fabrication, there is no dispute. It’s right there in the warning Ratcliffe gave before he released the notes. “The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.” But that didn’t stop Gerth from using it. He used it anyway, with no disclosure about who made this allegation or the IC warning about its uncertain reliability.

And Columbia University’s journalism establishment stubbornly stands by that non-disclosure.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth began his series on the press’ Russia investigation failures by noting that trust in the traditional media collapsed after the 2016 election (a claim based on a statistical error), with a sharp rise in concern about “fake news” and, according to Rasmussen, half of those surveyed thinking the press was the enemy of the people.

Before the 2016 election, most Americans trusted the traditional media and the trend was positive, according to the Edelman Trust Barometer. The phrase “fake news” was limited to a few reporters and a newly organized social media watchdog. The idea that the media were “enemies of the American people” was voiced only once, just before the election on an obscure podcast, and not by Trump, according to a Nexis search.

Today, the US media has the lowest credibility—26 percent—among forty-six nations, according to a 2022 study by the Reuters Institute for the Study of Journalism. In 2021, 83 percent of Americans saw “fake news” as a “problem,” and 56 percent—mostly Republicans and independents—agreed that the media were “truly the enemy of the American people,” according to Rasmussen Reports.

Gerth believes part of the problem stems from an erosion of journalistic norms, which he listed at length in an afterward, starting with the press’ unwillingness to report facts that run counter to the prevailing narrative.

My main conclusion is that journalism’s primary missions, informing the public and holding powerful interests accountable, have been undermined by the erosion of journalistic norms and the media’s own lack of transparency about its work. This combination adds to people’s distrust about the media and exacerbates frayed political and social differences.

One traditional journalistic standard that wasn’t always followed in the Trump-Russia coverage is the need to report facts that run counter to the prevailing narrative.

And in spite of his citation of WaPo’s tracking of the vast number of lies Donald Trump told during his term early in the series, Gerth put great stock in what Donald Trump told him in two interviews, adopting Trump’s attribution of the coverage of Russia for the reality TV star’s decision to start labeling the media, “fake news.”

He made clear that in the early weeks of 2017, after initially hoping to “get along” with the press, he found himself inundated by a wave of Russia-related stories. He then realized that surviving, if not combating, the media was an integral part of his job.

“I realized early on I had two jobs,” he said. “The first was to run the country, and the second was survival. I had to survive: the stories were unbelievably fake.”

This is a critical point: Gerth appears to believe Trump that called the media “fake news” not as part of an effort to manipulate the media or to damage one of the institutions of accountability that might check his power, but instead as part of a good faith response to coverage of him.

From that premise, CJR decided the way to understand the collapse in trust of the media was to focus largely on NYT and WaPo’s performance in their coverage of Russia. 

CJR editor Kyle Pope told me,

What we wanted to do with this piece was focus entirely on the media coverage, without the usual notes about Trump’s failings. Specifically, we wanted to focus largely on the New York Times and the Washington Post, as important leaders of the coverage. This was not intended as a 360-degree roundup of everything written about Trump and Russia.

There are obviously enormous problems with the conception of this project, particularly with media polarization in the US that looks like this (a source Gerth relied on to assess the problem).

Others engaged in the “Russiagate” project correctly recognize the import of cable news in the equation (though most, like Glenn Greenwald, ignore the power of the self-contained bubble around Fox, which doesn’t even attempt to hold itself to standards of truth). In 23,000 words, for example, Gerth never considers whether Fox’s scandalous Seth Rich coverage fostered distrust of the media.

In his series, Gerth spent a great deal of time questioning claims about the impact of Russia’s social media operation in 2016 (which, like many “Russiagate” analysts, he treats as the only possible means by which Russia influenced the election). But he didn’t consider the impact of social media, generally, on this decline in trust, not even in the vast reaches of America where there is no more local news, where news consumers increasingly rely on information fed by algorithms that reward the most inflammatory information, from whatever source.

So even on its own terms, it’s a project designed to fail, because it ignores centrally important parts of the equation.

Worse still, Gerth didn’t even carry out what he claimed to set out to do.

That’s actually one of the reasons I’ve spent so much time dissecting his effort: because the ways in which he claimed to limit his scope, and his deviation from that scope, is itself very telling.

Gerth shows how little WaPo and NYT chased the dossier

Start with his focus on the Steele dossier. The dossier is mentioned or discussed in paragraphs making up over 5,000 words out of Gerth’s 23,000-word series. That’s consistent with the “Russiagate” project, which often treats the dossier as stand-in for the entire Russian investigation (or, here, the coverage of it).

Even regarding the Steele dossier, Gerth’s own summary of their coverage  makes it clear that the NYT and WaPo aren’t the villains of the dossier story. The villains in his account are Michael Isikoff, David Corn, CNN, BuzzFeed, McClatchy, and Jane Mayer.

Gerth struggled to implicate NYT and WaPo in his dossier complaint. He noted that NYT mentioned it, including FBI’s efforts to reach out to its sources, in a February 14, 2017 article he spends  almost 1,000 words attacking.

In the article’s discussion of the dossier, it described Steele as having “a credible track record” and noted the FBI had recently contacted “some” of Steele’s “sources.” Actually, the FBI had recently interviewed Steele’s “primary” source, a Russian working at a Washington think tank, who told them Steele’s reporting was “misstated or exaggerated” and the Russian’s own information was based on “rumor and speculation,” according to notes of the interview released later. The day the Times piece appeared in print, Strzok emailed colleagues and reported that Steele “may not be in a position to judge the reliability” of his network of sources, according to Justice Department documents released in 2020.

But as I note below, the dossier is in no way Gerth’s primary complaint with this article and others in a series of similar reports from NYT.

Gerth also included the dossier in a critique of NYT’s reporting on the Nunes Memo.

At the Times, the coverage of the GOP memo was skeptical while a dueling memo, a few weeks later from the ranking Democrat on the committee, was portrayed more favorably.

The Times, at the start of the piece about the Republican memo, called it “politically charged”; noted, in the next sentence, how it “outraged Democrats”; and did not quote the memo’s allegation of the dossier’s “essential” role in the surveillance. The same day, in a separate piece, the Times again called the GOP memo “politically charged” and quoted the “scathing” criticism by Democrats.

Later that month, the Democrats released their own memo. It said the surveillance warrant “made only narrow use of information from Steele’s sources.” The Times story called it a “forceful rebuttal” to Trump’s complaints about the FBI’s inquiry. In the end, the allegations of abuse by Nunes were confirmed in 2019 when the Inspector General released a report that was a “scathing critique” of the FBI, as the Times told readers at the time.

In a statement to CJR, the Times said: “We stand behind the publication of this story,” referring to its reporting on the Nunes memo.

In doing so, he overstates the extent to which the DOJ IG Report on Carter Page, “confirmed” Nunes’ claims. As I noted in a claim-by-claim assessment after the release of the report, both memos got things wrong and both got things right, and Democrats were right that the dossier was not part of the predication of the Russian investigation. Mostly, though, they were just talking past each other, a problem exacerbated by the secrecy behind which both sides could hide their arguments.

Gerth found a little more to work with in the WaPo.

He made much of the fact that one journalist on a long (and accurate) piece about Trump’s ties to Russia was friends with Glenn Simpson, one of the founders of Fusion GPS, via which the Democrats paid for the Steele dossier.

The lead author of the story, Tom Hamburger, was a former Wall Street Journal reporter who had worked with Simpson; the two were friends, according to Simpson’s book. By 2022, emails between the two from the summer of 2016 surfaced in court records, showing their frequent interactions on Trump-related matters. Hamburger, who recently retired from the Post, declined to comment. The Post also declined to comment on Hamburger’s ties to Fusion.

Here was a tie, Gerth insinuated, that proved journalism collapsed in the face of Hillary’s attempts to push oppo research.

But 1,500 words later in Gerth’s series, he showed that Hamburger pushed back on Fusion tips like the Carter Page one when he couldn’t substantiate them.

[S]ome reporters, aware of the dossier’s Page allegations, had pursued them, but no one had published the details. Hamburger, of the Washington Post, told Simpson the Page allegations were found to be “bullshit” and “impossible” by the paper’s Moscow correspondent, according to court records.

That’s important background to Gerth’s coverage of WaPo’s 2017 story on Sergei Millian

The Post landed a long story about Sergei Millian, a Belarusian-American businessman, on March 29. The top of the piece identified Millian as the source behind the dossier’s most serious allegation, a “well-developed conspiracy” between the Trump campaign and the Kremlin, the same ground covered by the Wall Street Journal and ABC in January. The claim that Millian was a key informant whose information was “central to the dossier” was stated without any attribution or sourcing. In 2021 the Post retracted the parts of the story describing Millian as a dossier source after John Durham, a special counsel looking into the origins of the Trump-Russia investigations, indicted Steele’s main source for lying to the FBI. Durham alleged the fact of Millian being a source had been “fabricated.” The Post editor’s note explained that Durham’s indictment “contradicted” information in the March story, and additional reporting in 2021 further “undermined” the account. The Post also deleted parts of a few other stories that repeated the allegation that Millian was a dossier source.

WaPo retracted much of the story after the Danchenko indictment, with this editor’s note:

The original version of this article published on March 29, 2017, said that Sergei Millian was a source for parts of a dossier of unverified allegations against Donald Trump. That account has been contradicted by allegations contained in a federal indictment filed in November 2021 and undermined by further reporting by The Washington Post. As a result, portions of the story and an accompanying video have been removed and the headline has been changed.

The original account was based on two people who spoke on the condition of anonymity to provide sensitive information. One of those people now says the new information “puts in grave doubt that Millian” was a source for parts of the dossier. The other declined to comment.

WaPo’s retraction (like the CNN “reckoning” which Gerth cites approvingly) were themselves problematic, because (as I noted about the CNN piece) they took John Durham’s false statements indictment against Steele’s primary subsource, Igor Danchenko, insinuating — but falling far short of charging — a conspiracy as a source of fact. Worse still, the indictment was obviously problematic. In it, Durham relied on Millian’s claims, made on social media but not to a grand jury, for a key part of his case. After Millian refused to testify at trial, Durham admitted he had little but hearsay to prove his case. 

And as Danchenko attorney Stuart Sears noted at trial, several of Millian’s communications, in which Millian boasted about his ties to Trump, were consistent with Danchenko’s claims about the call he attributed to Millian.

It’s entirely possible it wasn’t Sergei Millian, but even if it was, the caller only said there was coordination between the campaign and Russia and that there was nothing bad about it. Agent Helson told you that. That’s not anti-Trump, and we do know from the government’s own evidence that Millian was at least telling people he was going to meet with Trump campaign people the week before the phone call, the anonymous phone call. 

Gerth cheered retractions based off an indictment alone over three months after a jury acquitted Danchenko of lying about this call, which he told the FBI he believed, but was not certain, came from Millian. 

And Gerth, who complains about transparency, buried that fact: while Gerth emphasized the WaPo and CNN retractions in Part Two of his series, he didn’t get around to informing readers that Igor Danchenko had been acquitted until Part Four, over 9,000 words and two clicks later.

Gerth elsewhere noted that Mueller’s indictments against Yevgeniy Prigozhin and the GRU hackers haven’t been tried, yet when it served his narrative, he applauded these retractions based on an indictment alone.

Meanwhile, Gerth credited WaPo with breaking the news that the Democrats had funded the dossier, which is ample proof that the WaPo wasn’t shielding the project.

Amazingly, Gerth complained that the NYT didn’t retract anything in the wake of the Danchenko indictment, even though he found so little to complain about in the NYT coverage of the dossier and even though, as he describes, WaPo’s Erik Wemple (who might consider whether his own campaign for dossier accountability went too far, in light of the Danchenko acquittal) called out NYT’s Adam Goldman as one of those who approached the dossier responsibly. Gerth even noted that the NYT acknowledged the flimsiness of the dossier’s allegations in real time.

The Times has offered no such retraction, though the paper and other news organizations were quick to highlight the lack of firsthand evidence for many of the dossier’s substantive allegations;

It’s genuinely not clear what Gerth thinks the NYT should retract, a question I posed to Pope that he declined to answer.

And Gerth makes this complaint even though his series was published four days after NYT’s bombshell report of how corrupt the Durham investigation was. Somehow CJR didn’t find time to remove or amend Gerth’s complaints about NYT’s critical reporting on the Durham investigation, including his complaint that Goldman suggested a junket Barr and Durham took to Italy might be chasing a “conspiracy theory,” when the recent NYT report has revealed it was far worse. 

There are other grave problems with Gerth’s treatment of the dossier, all consistent with the ”Russiagate” project more generally. The DOJ IG Report Gerth relies on so heavily laid out abundant reason to suspect that Russia larded the dossier with disinformation, probably with the participation of Manafort associate Oleg Deripaska.

That’s important given the fragments of truth that appear in the dossier. As Durham briefly acknowledged at trial and as I noted in an interview hosted by CJR, the reason Danchenko’s ties to Clinton ally Chuck Dolan were so significant, and led Durham to charge Danchenko for making a “literally true” statement about Dolan to the FBI, was that Dolan established ties between Olga Galkina — the source of the most problematic claims in the dossier, alleging Michael Cohen spoke directly with the Kremlin about election interference — and Dmitri Peskov. The link raises the possibility that someone who knew about Michael Cohen’s January 2016 call to the Kremlin, to Peskov’s office, a call both Cohen and Trump lied to conceal, was behind the dossier allegation that falsely claimed Cohen had other contacts with the Kremlin. Peskov knew that Cohen and Trump were lying to hide that earlier contact, which made the later false allegation more powerful.

Other records show that Russia likely used Steele for a functional role in their operation. In spring 2016, Deripaska is believed to have been the client who hired Steele for intelligence collection targeting Paul Manafort. Then Deripaska used Steele as part of a brutal double game with Manafort. Essentially, Deripaska used the former British spy’s association with the FBI to increase Manafort’s legal vulnerability while he had Kilimnik exploit Manafort’s financial vulnerability, all of which made it easier to obtain inside information on the Trump campaign at the August 2 meeting. 

And, in a story about the dossier that Gerth doesn’t mention, Manafort came back from what we now know to be a meeting with a Deripaska associate and told Reince Priebus to focus on the dossier’s inaccuracies as pushback on the Russian investigation. That is, the focus on the dossier as a substitute for Trump’s real Russian ties seems to have become part of Russia’s plan, if it wasn’t from the start. If the dossier was deliberate disinformation — and the Republican members of Congress who investigated that document insist it was — then it must be considered part of Russia’s attack on US democracy –  in which Gerth and other “Russiagate” participants are enthusiastic participants.

Polarization and trust in the media lie at the center of Gerth’s project. Yet he failed to consider how the dossier, not the coverage of it, might be a key driving factor in polarization. That makes his project part of the problem.

Gerth’s selective coverage of NYT and WaPo’s Pulitzer-winning journalism

Even while Gerth failed to significantly implicate NYT and WaPo in what he portrays as the gravest journalistic crime in Russian coverage, hyping the Steele dossier, he also ignored key parts of their coverage.

For example, he didn’t acknowledge that WaPo reported on Carter Page’s inflammatory comments in Moscow weeks before Steele did. Much of the focus on Page subsequent to WaPo’s report was based on this public source, not the dossier. It’s one of many events that the press covered for its real news value that Gerth, in his own narrative, suggests could only have happened with Hillary’s intervention.

Gerth also ignored large swaths of NYT and WaPo’s award-winning journalism on Russia, although he covered Trump’s attack on that reporting in the third installment of his series. 

NYT won a Pulitzer in 2017 for ten Russia-related articles and NYT and WaPo shared a prize for a combined 20 stories on the Russian investigation in 2018. Trump has sued the Pulitzer Board for defamation relating to the 2018 award. In his coverage, Gerth suggests that Trump’s lawsuit against the Pulitzer Board  for those awards has merit.

Best as I’ve been able to reconstruct, this page lists the newspaper coverage mentioned in Gerth’s series (in numerous ways, CJR’s decision not to link the media Gerth claimed to discuss made it very difficult to assess his claims, and I made one error in my questions to CJR as a result). The page also lists, at the end, some key stories that Gerth did not address. Those with asterisks — both in the stuff he covered and the stuff he did not — were part of the Pulitzer packages for which NYT and WaPo won prizes.

Gerth included just one of the stories for which NYT won a Pulitzer in 2017, the Manafort secret ledger story (the same story,  as Fusion GPS revealed after Barry Meier attacked them in a book, for which Fusion provided research).

But he ignored the rest. 

That had the effect of hiding the general background on Russia’s international assault on its opponents that NYT, as an institution, would have brought into its coverage of Trump’s suspected ties to the Kremlin in 2017: stories about Russia hunting down its enemies in other countries, Russia’s use of disinformation, the elite hackers Russia was recruiting, and Russia’s cultivation of the far right.

Gerth also ignored two stories that were specifically on point to his project: A September 2016 story revealing how often Julian Assange’s Wikileaks releases served Russia’s political  interests (I raised some concerns about the piece here), and a December 2016 epic that described the Russian hack-and-leak from the DNC perspective (I pointed out the DNC’s changing story about being warned by the FBI here). The DNC story should be particularly important to Gerth’s project because it explicitly made the comparison with the Watergate burglary in 1972 that Gerth complains about in his series. It also provided a great deal of information, much publicly available, backing the hack-and-leak attribution to Russia – an attribution that Gerth claims remains “far from definitive.”

I asked Pope why the Assange and the DNC hack stories weren’t included in the series. He pointed to coverage of other NYT stories as proof CJR wasn’t ignoring the (2017, not 2018) Pulitzer stories.

Do you think it fair to ignore all the stories for which WaPo and NYT did get Pulitzers, including the 2017 ones on WikiLeaks and the DNC hack?

We didn’t ignore them. From the piece: “For the Times, Trump’s mess was a pot of gold: two of the Times stories about the meeting and the emails were part of its winning Pulitzer Prize package.

And … “But before that omission, the Times exposed another piece of the FBI’s Russia puzzle. The paper landed a major story at the end of the year, in time to be included in its Pulitzer package that ultimately shared the prize for national reporting.”

But there were a bunch of Pulitzer winners Gerth left out whose omission is still more problematic, particularly given his suggestion that the entirety of the press’ early 2017 focus on Russia in Trump’s administration stemmed from the publication of the dossier.

For example, Gerth barely mentions the coverage of Mike Flynn’s lies and resignation and its central role, starting even before the publication of the dossier, in press coverage in early 2017. He slips discussion of a key David Ignatius column, the first to report on Mike Flynn’s calls with Russian ambassador to the US, Sergei Kislyak, in between his references to the dossier.

The WSJ and the Times stories were not well received by Fusion. At first, they feared for Steele’s safety. Then they felt the Times’ behavior was “improper,” because it had “unilaterally” published material “it had learned off the record,” the founders wrote in their book.

Hours after the Times story ran, the Post upped the temperature on Russia even more. Columnist David Ignatius disclosed that incoming national security adviser Michael Flynn had phoned Russia’s US ambassador “several times” at the end of the year, according to “a senior US government official.” Ignatius noted the talks had come on the day the Obama administration had expelled Russian diplomats in retaliation for the country’s hacking activities, so he questioned whether Flynn had “violated” the spirit of an “unenforced” law barring US citizens from trying to resolve “disputes.”

Ignatius went on to write that it might be a “good thing” if Trump’s team was trying to de-escalate the situation. But Ignatius didn’t know the substance of the conversations. Hours before his story went online, Ignatius appeared on MSNBC and, while not disclosing his upcoming Flynn exclusive, said “it was hard to argue” against the need to “improve relations with Russia.”

The existence of Flynn’s talks with the ambassador was known by Adam Entous, a reporter then at the Post, but he held off writing anything because the mere fact of a contact wasn’t enough to justify a story. “It could have been something innocent,” Entous, now with the Times, said in an interview, “something he would be praised for.”

On the heels of the Ignatius column, the FBI’s “investigative tempo increased,” according to FBI records, and the Senate intelligence panel announced an inquiry into Russia’s election activities. (The House Intelligence Committee announced a similar effort later that month.)

Two days after the Senate announcement, Bob Woodward, appearing on Fox News, called the dossier a “garbage document” that “never should have” been part of an intelligence briefing.

But he doesn’t reveal why the FBI’s investigative tempo increased in the wake of Ignatius’ column. 

Stories that the WaPo published that he ignored did. A Pulitzer-winning WaPo report published the same day revealed that Flynn was denying he had discussed sanctions with the Russian Ambassador, the first of many compromising lies Trump’s associates told in the early days of his Administration. Flynn’s lies (as Mueller confirmed in his congressional testimony) created the risk that he could be blackmailed, which led the FBI and DOJ to respond more aggressively than they otherwise might have. Another Pulitzer-winning WaPo story explained all that on the day Flynn resigned. 

Later in the spring, a Pulitzer-winning NYT report revealed that Trump knew Flynn was under investigation for his secret relationship with Türkiye even before the president appointed him to be National Security Adviser. Gerth’s silence about all these stories is particularly damning, given that he later gets a key detail about Flynn’s prosecution wrong, which I’ll return to.

Other award-winning stories revealed still more Russian ties that Trump and his associates were trying to hide. A March story from WaPo — yet another Pulitzer winner — revealed that Jeff Sessions had failed to disclose some interactions with Sergey Kislyak, the same ambassador  with whom Flynn was undermining Obama foreign policy during the transition. An April Pulitzer-winning story from the NYT revealed that Jared Kushner had omitted transition period meetings with Russians — not just Kislyak, but also the head of a sanctioned bank — in his security clearance paperwork.

While Gerth may have mentioned a May article for which NYT won a Pulitzer, if he did, he did so only as part of his complaint that the NYT repeatedly referred to the line from Trump’s interview with Lester Holt in which he referred to “the Russian thing” in his explanation for firing Comey.

A tweet from the show on May 11 set the narrative for the Holt interview: “Trump on firing Comey: ‘I said, you know, this Russia thing with Trump and Russia is a made-up story.’” Those few words, by suggesting Comey’s firing was aimed at getting the FBI inquiry off his back, provided fresh ammunition to anti-Trumpers.

The full interview, which was available online, presented a more nuanced story, and appeared to reflect what his advisers told him: firing Comey could prolong, not end, the investigation. Trump told Holt, soon after the controversial words, that the firing “might even lengthen out the investigation” and he expected the FBI “to continue the investigation,” to do it “properly,” and “to get to the bottom.”

The media focused on the “Russia thing” quote; the New York Times did five stories over the next week citing the “Russia thing” remarks but leaving out the fuller context.

But Gerth’s account elided the entire reason Trump’s NBC quote was used in that particular NYT article: because Trump told Kislyak and Sergey Lavrov roughly the same thing, privately, on the same day.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

Gerth doesn’t address the real concerns presented by Trump privately bragging about firing the FBI director – in charge of counterintelligence – to his Russian visitors.

Indeed, given Gerth’s focus on Trump’s use of “fake news,” he might have at least mentioned the last lines of the NYT story:

At one point, Mr. Trump jokingly asked whether there were reporters in the room.

“No,” Mr. Lavrov said. “No fake media.”

Whether you think that Trump’s adoption of the term “fake news” was merited or not, the answer to Trump’s question, “Russia, if you’re listening,” was yes, they were.

Gerth also appears to have paid no attention to a Pulitzer-winner from WaPo written in the same time frame, revealing that Trump shared highly classified Israeli intelligence with his Russian visitors in the same meeting, another cause for concern that Gerth simply makes disappear. 

Those aren’t the only damning stories Gerth ignored. As Pope emphasized to me, Gerth credited NYT for two of three Pulitzer-winning stories on the June 9 meeting that Don Jr took with a Russian lawyer in hopes of acquiring dirt on Hillary– the July 10 one revealing that Don Jr took a meeting with Russians offering dirt, and the July 11 one revealing Don Jr’s enthusiastic response. But I don’t believe he credited the WaPo for their July 31 Pulitzer-winning story revealing that Trump drafted Don Jr’s misleading statement, claiming a meeting about dirt on Hillary and sanctions relief was about adoption.

The omission is really telling given Gerth’s take on a July 19 story from the NYT (which did not win a prize). In an interview with three NYT reporters, Trump successfully got the NYT to participate in his efforts to obstruct the investigation by airing his threats to fire Jeff Sessions (he had asked Corey Lewandowski to fire Jeff Sessions on the same day). In the interview, Trump also confirmed that he and Putin spoke about the topic of his misleading statement before drafting it, meaning adoptions. But Gerth deemed that interview important primarily because Mike Schmidt asked Trump about the dossier.

A week after the Trump Tower story, the president conducted a serendipitous interview with three Times reporters, including Schmidt, who asked if Comey’s sharing of the dossier with Trump before his inauguration was “leverage.” Trump replied, “Yeah, I think so, in retrospect.”

After the Oval Office sit-down, an aide, worried about the possibility of repercussions from an impromptu interview, sought Trump’s reaction.

“I loved that,” the aide, who requested anonymity, recalled him saying. “It was better than therapy. I’ve never done therapy, but this was better.”

This is a fairly astounding view on the relative newsworthiness of the interview — I’ve pointed out the importance, to Trump’s obstructive purpose, of NYT’s decision to bury the Putin tie rather than dedicate an entire story to it. It’s also a prime example of how the unrelenting focus on the dossier by “Russiagate” adherents diverts attention from far more damning events, both creating in that unrelenting focus the narrative they claim to combat, and in the process burying the real events that “Russiagate” adherents claim could only come as part of a manufactured narrative.

I asked CJR, “Why do you believe a comment on the dossier was more important than a scoop substantiating Trump’s problematic ties to Putin?” but it was another of the questions the magazine’s editor declined to answer.

There are more Pulitzer winners that Gerth left out, including a WaPo story describing both Trump’s refusal to take steps to protect American democracy from Russian interference…

Nearly a year into his presidency, Trump continues to reject the evidence that Russia waged an assault on a pillar of American democracy and supported his run for the White House.

The result is without obvious parallel in U.S. history, a situation in which the personal insecurities of the president — and his refusal to accept what even many in his administration regard as objective reality — have impaired the government’s response to a national security threat. The repercussions radiate across the government.

Rather than search for ways to deter Kremlin attacks or safeguard U.S. elections, Trump has waged his own campaign to discredit the case that Russia poses any threat and he has resisted or attempted to roll back efforts to hold Moscow to account.

… As well as Russia’s assessment of the “staggering return”  achieved by their interference operation.

U.S. officials said that a stream of intelligence from sources inside the Russian government indicates that Putin and his lieutenants regard the 2016 “active measures” campaign — as the Russians describe such covert propaganda operations — as a resounding, if incomplete, success.

Moscow has not achieved some its most narrow and immediate goals. The annexation of Crimea from Ukraine has not been recognized. Sanctions imposed for Russian intervention in Ukraine remain in place. Additional penalties have been mandated by Congress. And a wave of diplomatic retaliation has cost Russia access to additional diplomatic facilities, including its San Francisco consulate.

But overall, U.S. officials said, the Kremlin believes it got a staggering return on an operation that by some estimates cost less than $500,000 to execute and was organized around two main objectives — destabilizing U.S. democracy and preventing Hillary Clinton, who is despised by Putin, from reaching the White House.

The bottom line for Putin, said one U.S. official briefed on the stream of post-election intelligence, is that the operation was “more than worth the effort.”

But the stories from the first half of 2017 that Gerth left out are key. They not only reveal the real reason that the FBI investigation picked up in early 2017, they also show that a great deal of important journalism provided abundant reason to be concerned about all the secrets about Russia that Trump and his aides were keeping, independent of the dossier.

The contacts with Russian spies that were later confirmed

That focus – the ties with Russia that Trump, his National Security Adviser, his Attorney General, and his son-in-law failed to disclose – makes Gerth’s chief complaint about the NYT coverage look very different.

He appears especially peeved over a series of NYT stories in this same time period that described the sheer number of contacts that investigators were discovering with various Russians described by the paper as intelligence officers.

Gerth’s critique relies heavily on a Peter Strzok annotation of the February 14 story that Strzok shared with top FBI officials (parts of which, detailing how few call records the investigation had yet obtained, explain why early reports Gerth points to to make claims about the investigation, including one from James Clapper, are meaningless). It is absolutely true that Strzok found no basis for the NYT to claim that the Russians with whom Trump and his aides were in contact were Russian spies. 

Gerth also reviews how Comey disavowed such reports in his public testimony to Congress, with support from Devin Nunes.

That section of the series, covering all four stories, is over 2,500 words long.

As Gerth described it, when NYT has been challenged on these stories, they’ve stood by them. I share Gerth’s curiosity regarding NYT’s sources for the stories, but like Gerth himself, the NYT is not about to share their sources. 

It’s worth noting, though, that Gerth seems to believe that the US-based three letter agencies (or the Congressional personnel who’ve been briefed by those agencies) referenced in Strzok’s memo are the only possible sources for these stories. We know that at least five other intelligence services — the UK, the Dutch (from whom the US got a great deal of intelligence on the operation), the Spanish, the Ukrainians, and the Israelis — would have had their own views about which foreign interlocutors with Trump aides were spies. We know of a number of witnesses, not in government at all, who told Mueller they believed one or another interlocutor was a spy. We also know of a number of overt spies (such as Emirati ones) who had a role in the international effort to influence Trump. And we know of contacts – like that between Stone and Guccifer 2.0 – that were legitimately viewed as a spy contact when they started to become known around this time.

The clearest error in the NYT series pertains to the claim that an investigation into Stone had already been opened, but that’s an error SSCI seems to have shared, because on March 16,  Senator Richard Burr told Don McGahn the FBI was investigating Paul Manafort, Roger Stone, Carter Page, and “Greek Guy.”

In the years since, however, the US government has come to believe more of the people known to have been interacting directly with Trump’s aides were Russian spies.

Konstantin Kilimnik — who along with at least two other Deripaska allies have been described as Russian agents in official US documents — is a particularly important one, given Gerth’s complaints that the NYT didn’t call Kilimnik for comment when the record shows they did (including in the March 3 one).

Gerth’s claims about the evidence that Kilimnik was a spy were nothing short of fanciful, including a perennial “Russiagate” favorite — which he credits to John Solomon’s scoop, from a period when Solomon was part of Rudy Giuliani’s outreach to people like Dmitry Firtash – that Kilimnik had been a source for the State Department.

As for Kilimnik possibly being a Russian spy, the only known official inquiry, by Ukraine in 2016, didn’t result in charges. More recent claims that he worked for the Russians, by the Senate intelligence panel in 2020 and the Treasury Department in 2021, offered no evidence. Conversely, there are FBI and State Department documents showing Kilimnik was a “sensitive source” for the latter. (The documents were disclosed a few years ago by John Solomon, founder of the Just the News website. Kilimnik, in an email to me, confirmed his ties with State.)

One primary objective of most spies, of course, is to infiltrate the agencies of other governments.

I asked CJR why Gerth claimed SSCI had no evidence against Kilimnik when their section substantiating their assessment about Kilimnik includes 16 bullet points, over half redacted, and they also included a separate 5-page, largely redacted section showing more fragmentary evidence that Kilimnik had a role in the hack-and-leak. I also asked why Gerth thought the FBI, under Trump, would have issued a $250,000 reward for Kilimnik’s arrest.

Those questions also went unanswered.

So the NYT may well have been ahead of the FBI’s assessment in spring 2017 (and their report that Stone was already part of the investigation has been shown to be wrong). But those reports really aren’t ahead of what the US intelligence community says they have since corroborated. Moreover, many of the Pulitzer stories that Gerth doesn’t mention show that Trump and his associates were aggressively lying to hide their ties to Russians or their interlocutors, and criminally so, in the case of Flynn and George Papadopoulos (and, ultimately, Michael Cohen and Roger Stone, too). That background — the lies that Flynn and Sessions and Kushner were telling about their Russian ties — is important background to these stories Gerth hates, yet he makes no mention of them.

Gerth’s main remaining gripe about the WaPo is even more remarkable. He spent six paragraphs on the WaPo’s scoop reporting the FISA order targeting Carter Page.

In early April, the Post story on Page landed, calling the surveillance “the clearest evidence so far that the FBI had reason to believe during the 2016 presidential campaign that a Trump campaign adviser was in touch with Russian agents. Such contacts are now at the center of an investigation into whether the campaign coordinated with the Russian government to swing the election in Trump’s favor.” It noted Page’s “effusive praise” for Putin and mentioned Schiff’s congressional recitation of the Page allegations in the dossier. Relying on anonymous sources, it gave a vague update on the dossier’s credibility: “some of the information in the dossier had been verified by US intelligence agencies, and some of it hasn’t.”

At the Times, the newsroom was irked about getting beaten by the Post. “Times is angry with us about the WP scoop,” Strzok texted to an FBI colleague, a few days later.

But the Post scoop was incomplete. Its anonymous sources mirrored the FBI’s suspicions but left out the bureau’s missteps and exculpatory evidence, as subsequent investigations revealed. It turns out that the secret surveillance of Page was an effort to bring in heavier artillery to an FBI inquiry that, in the fall of 2016, wasn’t finding any nefarious links, as the Times reported back then. Agents were able to review “emails between Page and members of the Donald J. Trump for President Campaign concerning campaign related matters,” according to an inquiry in 2019 by the Justice Department Inspector General. FBI documents show the surveillance of Page targeted four facilities, two email, one cell, and one Skype.

Still, even with the added surveillance capability, the investigation had not turned up evidence for any possible charges by the date of the Post piece, which came four days after the secret surveillance, called FISA, for the Foreign Intelligence Surveillance Act, was renewed for the second time. (Page was never charged.)

The IG review also found that the FISA warrant process was deeply flawed. It relied heavily on the dossier, including the fabricated Millian allegation of a conspiracy, the IG found. Furthermore, the report said the warrants contained seventeen “significant errors and omissions,” such as leaving out exculpatory information about Page, including his previous work for the CIA and comments he made to an undercover FBI informant. And by the time of the Post piece, the dossier’s credibility was collapsing; the FBI knew the CIA called it “internet rumor,” and on its own the FBI “did not find corroboration for Steele’s election reporting,” according to the IG report.

The Post spokesperson, who would only speak on background, said the article on Page was “fair and accurate” and meant to reflect “how deeply the FBI’s suspicions were about Page.” They acknowledged the story was incomplete, noting that “at that time there was a lot that was not publicly known.” [my emphasis]

This passage commits several errors. The FBI targeted Page not because they were looking for heavier artillery. They did so because Page was about to travel internationally and they wanted coverage of that trip. (The FBI consistently described the FISA targeting of Page as “productive” or “fruitful.”) And Bill Barr’s DOJ didn’t withdraw the probable cause claim for Page’s first two FISA orders. The applications against him, which were based in part on his voluntary sharing of non-public information with known Russian intelligence officers, alleged he knowingly aided and abetted foreign spies.

Over time, there would be more than those four facilities, and in fact one main reason FBI submitted the especially problematic June 2017 application was because the FBI wanted to access financial information and two encrypted messaging apps, the latter out of suspicion that Page had destroyed a phone once he discovered he was under investigation.

The FBI also had concerns about Page’s initial denial in a March 16, 2017 interview that he had sought out some Russian official to identify himself as the Male-1 in court filings for one of the Russians trying to recruit him some years earlier.

There was evidence for possible charges; there was evidence when the FBI first opened an investigation into him in April 2016. Just not enough to charge him.

Errors aside, though, Gerth here adopts a fairly remarkable stance. He complains that the WaPo story confirming the FISA targeting did not include all the problems with the FISA applications that wouldn’t be discovered until much later. I spoke with a Congressional Republican who was privy to the applications targeting Page in summer 2018, for example, and even at that point, the person believed there was abundant other evidence against Page, even without any information from Steele. Crazier still, in April 2017 when the WaPo published that scoop, the worst abuse of all identified in the Page applications – the alteration of an email – hadn’t happened yet.

The WaPo would have needed a time machine to meet Gerth’s strictures.

Gerth’s claims that the NYT and WaPo’s reporting was particularly problematic are, with a few exceptions, extraordinarily weak, and that’s before you consider all the Pulitzer articles he simply ignored. But he also ignores some of the more problematic NYT stories, like the NYT decision to bury Trump’s discussion of adoptions with Putin immediately before he wrote a misleading note claiming the June 9 meeting addressed adoptions. Similarly, Gerth had no problem that the NYT not only parroted Bill Barr’s misleading March 24, 2019 letter about the Mueller Report, but ran entire blocks of his letter on the front page. I asked CJR if they had any problem with this article, which misrepresented court filings in the Manafort case to suggest that his sharing of polling data with Konstantin Kilimnik happened in the spring, not during the general election, and involved only Ukrainian oligarchs, not Deripaska; to this day, the article feeds misunderstanding about that allegation. 

That was another question to which I got no answer.

Gerth has plenty of complaints about the NYT — just not about the stories where they erred on the side of downplaying the discoveries of the Russian investigation.

But as I’ll show in my next post, Gerth’s poor framing of his complaints about the NYT coverage doesn’t end there.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

If the Former President Gets Top Billing in a Sedition Trial But You Didn’t Bother to Notice …

There’s a weird passage in a column that Charlie Pierce published today, announcing that,

[M]y patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted.

… Because Garland has …

let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.

It’s this passage: Charlie claims that the “announcement” of a subpoena, which he attributes to Jack Smith, got lost amid the news of the investigation into the classified documents found in President Biden’s possession.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

There was no announcement.

What Charlie treats as an “announcement” is a WaPo story, on which Mar-a-Lago Court Reporter Josh Dawsey is the first byline and Devlin Barrett is the second, describing a subpoena sent out on December 9, just three weeks and a Thanksgiving holiday after Jack Smith was appointed and over a month before the story itself. Charlie considers the subpoena “a blast of canister fire,” and hails the “genuine momentum,” but complains that “the announcement was lost in the hurly-burly of the Biden documents.”

Charlie doesn’t consider that this paragraph is itself an admission on his part that stuff can go on — stuff that he considers really impressive — and he might not find out about it for over a month. He says that about a story that describes that, “the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level,” but doesn’t describe who those witnesses are (and whose testimony, with the exception of about seven people — Rudy Giuliani, Stephen Miller, Dan Scavino, William Russell, Beau Harrison, and the two Pats, Philbin and Cipollone, has not otherwise been reported). He says that of a story that linked an earlier WaPo story, dated September 16 and so describing developments that preceded Jack Smith’s arrival by two months, that described dozens of subpoenas requesting communications with more than 100 people.

Dozens of subpoenas issued last week show that the Justice Department is seeking vast amounts of information, and communications with more than 100 people, as part of its sprawling inquiry into the origins, fundraising and motives of the effort to block Joe Biden from being certified as president in early 2021.

That’s the investigation, still under Garland, that Charlie calls “dilatory.”

And Charlie says that the same week that a third January 6 sedition trial kicked off by showing Donald Trump’s call on the men standing trial for sedition to “Stand Back and Stand By.”

As Charlie’s statement admits, his is partly a complaint about the press, which was focused on Biden’s legal discomforts rather than more important things, like Trump’s attempted coup.

Of course, Charlie is part of the press.

And Charlie, part of the press, made no mention of Trump’s prominence in DOJ’s Proud Boys opening argument. Charlie wants a compelling trial the likes of the Nuremberg Trials, yet the most important January 6 trial to date tied Trump’s actions directly to the overt acts in this alleged sedition conspiracy, and Charlie made no mention of the fact that Trump’s comments were presented as evidence in a sedition trial.

A huge part of Charlie’s complaint is about the evidence that he can see.

[Nuremburg Prosecutor Robert Jackson] wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there’s damn little evidence of it, and this week, everything seemed to be running in the opposite direction.

It’s not actually clear whether Charlie even knows that Trump’s incitement of the Proud Boys played a central role in the opening argument of a sedition trial, though dozens of reporters covered it, a number in real time. Many of those reporters are exhausted, though exhausted not so much about their perceptions of Garland, but because they’ve given up evenings and weekends for two years to make sure these events get covered.

If the former President gets top billing in a sedition trial but you didn’t bother to notice, does it count as evidence about DOJ investigations?

My January 6 anniversary post last year was about how unknowable January 6 is, particularly for anyone not working full time to know it.

To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

In recent weeks, those of us doing that full time have learned still more about how vast it all is — and how many tools the January 6 Committee withheld from prosecutors six months after the prosecutors had urgent need of them.

In those same recent weeks, two years into this thing, I’ve come to new realizations about how complex this is: it’s not just an investigation into a former President protected by Executive Privilege and at least six people protected by the Speech and Debate clause, but it’s also an investigation in which at least 26 key witnesses or subjects are lawyers protected by Attorney-Client Privilege. I’ve developed new theories about how DOJ — the same AUSAs who’ve been working 24/7 on this case for two years, before and after Jack Smith got involved — aspires to chisel away at those unprecedented protections. I’ve also increasingly seen gaps, both in PACER dockets and subpoenas, where investigative subjects used to be, gaps which sometimes suggest progress that DOJ needs to protect, progress that even those of us following full time might only confirm four months after the fact and only if we happen to be listening in real time when a lawyer blurts something out he shouldn’t have.

Charlie says this was a distressing week.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away.

It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again, watching the same insurrectionists encourage a coup attempt in Brazil, losing sleep over whether American democracy can be saved.

But it was distressing for another reason: because so many really smart people I respect — and I include Charlie among them — have responded to the unknowability of January 6 not by attempting to grab ahold of something to ensure their own meanderings remain grounded in evidence, but instead by making authoritative assertions about evidence that are, instead, confessions that great swaths of this investigation are proceeding without them noticing.

One major reason we’re all so distressed is because truth is under assault — because Jim Jordan intends to spend the next two years turning Trump’s crimes into victimhood, just as he spent the entirety of Trump’s presidency doing.

But making authoritative claims about evidence without knowledge of the evidence only makes his job easier, in part because it stoops to his level, in part because it magnifies the anxiety.

You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.

Charlie Pierce wants trials the likes of the Nuremberg Trials, which were so powerful because the architects of an authoritarian conspiracy were tied to the events that took place at the crime scenes. And DOJ took a key step in doing that week — a key step in an effort that has been obviously in the works for 18 months, an effort that started on January 4, 2021, when Enrique Tarrio’s phone was seized (his phone, which ties the Proud Boys to other organizers, took over a year to exploit), and took another step on January 7, 2021, when the first Proud Boy who would plead guilty to obstruction was arrested.

And yet Charlie Pierce has seen no evidence of that.

Update: I’ve fixed the January 7 detail: that was a reference to Nicholas Ochs, who was arrested when he arrived back in Hawaii. He and Nicholas DeCarlo were charged with conspiring with each other to obstruct January 6, and they did plan together. But both pled to obstruction, not conspiracy. They were both sentenced to 4 years in prison.

SDNY Calls DOJ’s Definition of the Espionage Act an “Academic Interest”

DOJ has now responded to my intervention in the Joshua Schulte case. Presumably because my motion, written by Kel McClanahan, focused on how flimsy the government’s claim to keep transcripts of a CIPA conference hidden, the government’s response pitches this as exclusively a CIPA battle. It’s totally a reasonable legal stance.

But along the way, in apparent effort to distract from the topic at issue — in part, the application of the Espionage Act to journalism — SDNY suggests it is just an academic interest whether DOJ would charge someone for sharing classified information already published by the NYT.

The mere fact that someone would like to know information is not a part of the right-of-access analysis, however, and the Government’s motion should be granted.

[snip]

Intervenor’s desire to speculate as to the potential application of the Government’s articulation of the elements of an offense to other circumstances has no bearing on the ability of the public to monitor or assess the actual rulings of the Court in the CIPA § 6 hearings to which Intervenor demands access.

[snip]

[T]he question is not whether redacted transcripts are coherent as a matter of language or whether they might be relevant to Intervenor’s academic interest.

I’m the intervenor here, not McClanahan (who is a professor on national security law at GW Law). I need to know this stuff not just to cover WikiLeaks (I’m more of an expert than the expert SDNY relied on in the first trial, Paul Rosenzweig), but also to understand my own exposure as a journalist.

Not once in the filing does the government use the words “Espionage Act.” Not once does DOJ mention “journalist.” Not once does it mention the NY Times, the hypothetical that DOJ is attempting to hide, which (as Judge Jesse Furman described in a court hearing) is this:

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

The government is no doubt exploiting the emphasis in my filing, but the notion that whether I can be charged for doing journalism is not an academic interest! It’s not just that there is an acute interest, amid the Julian Assange extradition proceedings, to know the government’s thinking about the Espionage Act, it goes to the chilling effect of not knowing what I can safely publish in the course of doing my job. I don’t have the luxury of “speculating” about the application of the Espionage Act, because if I guess wrong, I could be imprisoned for a decade.

The government wants this to be about CIPA. But the problem is that the government is attempting to hide something that is not classified — the elements of offense for a serious crime that can chill the ability to do journalism — via claims about CIPA.

Third, Intervenor asserts a First Amendment right of access premised on the assertion that “the Government present[ed] legal arguments about elements of the crime itself,” which Intervenor claims both have traditionally been open to the public and are of value to the monitoring of the judicial process. (D.E. 988 at 2). Intervenor’s contention that legal arguments the Government may have advanced at the Section 6 hearings are “something that interested persons in the field should know” (id. at 3) simply “cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding.” United States v. Cohen, 366 F. Supp. 3d 612, 631 (S.D.N.Y. 2019). Contrary to Intervenor’s suggestion that discussion of the elements of an offense “stray[s] far from a simple discussion of evidentiary issues” (D.E. 988 at 3), such discussion is integral to virtually any assessment of the relevance and admissibility of evidence, including that occurring in CIPA § 6 hearings, in which courts “look to what elements must be proven under the statute,” United States v. McCorkle, 688 F.3d 518, 521 (8th Cir. 2012); see also United States v. Bailey, 444 U.S. 394, 416 (1980) (describing need to “limit[] evidence in a trial to that directed at the elements of the crime”).

Tellingly, SDNY’s citation of a 2019 District opinion relating to the unsealing of Michael Cohen’s search warrants — which were released with redactions, the desired goal here! — is inapt to the question of whether the government should be able to hide its discussions of how it understands the Espionage Act by claiming that that needs to be protected as classified information.

Considerations of logic also counsel against recognizing a First Amendment right to access search warrant materials. Of course, public access to search warrant materials may promote the integrity of the criminal justice system or judicial proceedings in a generalized sense. United States v. Huntley943 F.Supp.2d 383, 385 (E.D.N.Y. 2013) (remarking that “the light of the press shining into the innards of government is necessary to inhibit violation of the public trust”). But such an argument cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding. Cf. Times Mirror Co.873 F.2d at 1213 (rejecting as overbroad the argument that the First Amendment mandates access to any proceeding or document that implicates “self-governance or the integrity of the criminal fact-finding process”); In re Bos. Herald, Inc.321 F.3d at 187 (“In isolation, the [rationale that the public must have a full understanding to serve as an effective check] proves too much—under it, even grand jury proceedings would be public.”). As the Ninth Circuit aptly observed, “[e]very judicial proceeding, indeed every governmental process, arguably benefits from public scrutiny to some degree, in that openness leads to a better-informed citizenry and tends to deter government officials from abusing the powers of government.” Times Mirror Co.873 F.2d at 1213.

Understanding the law is a matter that precedes the media’s scrutiny of whether the government abused the Espionage Act in this case (or in Julian Assange’s). And while the elements of the offense of the Espionage Act does dictate whether evidence would be helpful or not to the defense — the consideration of a CIPA hearing — ultimately this debate was about (and significantly appeared in) jury instructions, the law as applied.

Again, SDNY’s stance seems tactical, a response to our filing’s greater focus on matters of classification than the status of the press. But the outcome — SDNY’s claim that I have the luxury of merely “speculating” about the application of the Espionage Act — is alarmingly arrogant.


I was only able to make this challenge because McClanahan was able and willing to help — and he can only do so through the support of his non-profit. If you believe fights like this are important and have the ability to include it in your year-end donations, please consider supporting  the effort with a donation via this link or PayPal. Thanks!

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