Author Archives: William H. Freivogel

Lost in a credibility canyon

Commentary

by William H. Freivogel

 

During the Johnson and Nixon presidencies, the press talked about the credibility gap, first relating to Vietnam and later Watergate.

During the Trump administration there is the credibility canyon.

We begin with a president who has lied more than any other president over such a short time.  Armies of fact trackers work overtime on whoppers like President Obama tapping Trump Tower and the phantom millions of fraudulent voters who denied him a popular vote victory.

Yet even this incredible, uncredible president turns out to be more truthful at times than his lawyers.

Trump lawyer Jay Sekulow was entirely unbelievable in his appearances on last Sunday’s TV talk shows when he claimed Trump wasn’t under investigation for obstruction of justice, while the president himself had tweeted he was under investigation.  Sekulow didn’t help himself when he began talking about the obstruction investigation as something that was occurring.

https://www.washingtonpost.com/news/the-fix/wp/2017/06/19/trumps-lawyers-very-confusing-sunday-annotated/?hpid=hp_hp-more-top-stories_fix-sekulow-915am%3Ahomepage%2Fstory&tid=a_inl&utm_term=.f7cf02508478

Chris Wallace, the nearest thing Fox has to a professional journalist, called Sekulow on the contradiction and extracted from him the admission he had no way of knowing whether the president is under investigation for obstruction.  No one from the special counsel had talked to Sekulow and it is not standard practice to inform a person he is a target at the outset of an investigation.

Sekulow was reprising unfounded comments from a week earlier on ABC’s “This Week” when he grossly misstated the testimony of fired FBI director James B. Comey.  Sekulow claimed then “it was made very clear from the FBI director on multiple occasions that the president had not been and was not under investigation for obstruction of justice.”

In fact, Comey said no such thing. Comey declined to make a conclusion about whether Trump engaged in obstruction of justice, leaving that legal judgment to Special Counsel Robert S. Mueller III.  “I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct,” Comey testified.  “I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards to what the intention was there and whether that’s an offense.”

In the week between Sekulow’s two appearances, not only had Trump tweeted he was under investigation, but the Washington Post had reported that five unnamed officials said Mueller was pursuing an obstruction investigation of the president.  Sekulow, however, was undeterred.

Maybe it’s just that the Trump White House believes the president’s supporters will believe anything it puts out.  Or maybe it’s just the bad habit of lawyers thinking they can make an argument for the most spurious assertions.

Sekulow has been a pretty successful advocate on religious freedom issues before the United States Supreme Court. He made a name for himself arguing his Jews For Jesus organization has a religious right to distribute literature at an airport. Later he claimed Muslims don’t have a religious right to build a community center near Ground Zero.

Sekulow once said appearing before the Supreme Court made him feel like Rocky, the heroic prizefighter. But his answers to Wallace were gibberish.  He claimed Comey had violated his lawyer-client relationship with Trump, which probably didn’t exist because Comey was serving as the nation’s top investigator, not its top lawyer.

Sekulow also said Trump had the constitutional power to fire Comey partly because the president was just acting on the recommendation of the Justice Department.  But Deputy Attorney General Rod Rosenstein, who wrote a memo criticizing Comey’s handling of the Hillary Clinton email investigation, testified the memo was not written to justify Comey’s firing.

It was pointed out to Sekulow that Trump himself admitted to having decided to fire Comey before the Rosenstein memo and had been thinking about the Russia investigation at the time he fired him.  In fact, it’s pretty clear Trump’s firing of Comey combined with Comey’s account of Trump pressuring him on the Russia investigation are the reasons Rosenstein appointed Mueller as special counsel.

Just as Nixon faced the greatest legal peril for obstructing the investigation of a Watergate burglary he may not have known about, Trump faces greater legal jeopardy for possibly obstructing the Russia investigation than for his aides’ contacts with the Russians during the election.

Living in a Fox-Limbaugh-Breitbart fantasy

Opinion

By William H. Freivogel

 

Many Americans are living in a fantasy world constructed by Fox News, Rush Limbaugh, Breitbart News and right-wing bloggers.

In this fantasy world:

  1. President Donald Trump has more credibility than James B. Comey, the man he fired as FBI director.
  2. Comey has perjured himself by first testifying he wasn’t ordered to drop any investigation into Trump associates and then testifying last week that Trump asked him to drop the criminal investigation of former national security adviser Michael Flynn.
  3. It is Comey, not Trump, who committed a crime, leaking his contemporaneous notes of Trump’s request to drop the investigation.
  4. Comey has cleared the president of obstruction of justice.
  5. And then there was the surreal cabinet meeting at which, Trump said he was just about the most successful president in history and his cabinet and staff kowtowed with statements of how blessed they were to work for him.

Now take off those Fox-colored glasses and re-enter the reality.

  1. Comey is a truthteller. Trump has lied more over a short time than any president in history.

Comey – a registered Republican longer than Trump – has lived the life of a straight-arrow lawyer and law enforcement official. As George W. Bush’s deputy attorney general he rushed to John Ashcroft’s hospital bedside to make sure the White House didn’t pressure the ill attorney general to reauthorize a warrantless surveillance program the Justice Department thought was illegal.

In the rare instance where Comey makes a factual mistake in testimony, he quickly corrects the record.

Meanwhile when Trump lies, he refuses to admit it – think Obama wiretap charges.

Most Americans get this. A YouGov poll shows 46 percent of Americans believed Comey was more trustworthy and 26 percent Trump. But in the alternative media universe inhabited by Trump voters, 70 percent thought Trump more trustworthy as compared to 7 percent who believed Comey.

  1. Comey did not lie or perjure himself. That false news story began with right-wing conspiracy theorist, Jack Posobiec, who styles himself a White House correspondent. In the weeks before last fall’s election, it was Posobiec who spread the dangerous nonsense about Hillary Clinton running a child sex ring out of the back rooms of Comet Pizza in Washington, D.C.

This time, Posobiec tweeted that in testimony in early May Comey had “said under oath that Trump did not ask him to halt any investigation.”

Actually, Comey had been asked if “the attorney general or senior officials at the Department of Justice” had ever tried to halt an investigation. He said no. He was not asked if Trump had asked him to halt an investigation. So when he testified last week that the president had asked him to drop the investigation of Flynn, he was not contradicting earlier testimony.

Facts be damned; the Posobiec tweet ricocheted through conservative media. The New York Times traced its path. Breitbart published a story headlined: “Comey Under Oath: ‘Have Not Experienced Any Requests to Stop FBI Investigations.’” GotNews.com, a Trump favorite that has distorted reports on the Russia investigation, upped the ante by suggesting Comey may have perjured himself.

InfoWars, run by conspiracy theorist Alex Jones, picked up the perjury angle. Jones is the “journalist” who says 9/11 was a U.S. black bag job and that no children died at the Sandy Hook elementary school massacre. Then Limbaugh read the GotNews.com article on air and called the Russia investigation a “witch hunt.” And Fox’s Sean Hannity picked up the story, claiming it showed Comey himself had admitted the Trump request to drop the Flynn investigation “never happened.”

  1. Comey did not commit a crime by leaking his notes of the Trump meeting.

Comey acknowledged the leak without hesitation during testimony. This is not an illegal leak, such as revealing classified information. The memo was not classified and did not contain national security secrets. Comey’s leak of the memo is better understood as whistleblowing than leaking.

https://lawfareblog.com/sharing-memos-comey-did-nothing-wrong-former-official-and-everything-right-whistleblower

  1. Comey never said Trump was not under investigation for obstruction of justice.

On last Sunday’s “This Week” program, Trump lawyer Jay Sekulow, who moonlights as a Fox legal analyst, challenged the credibility of Comey and Special Counsel Robert S. Mueller III and baldly asserted “it was made very clear from the FBI director on multiple occasions that the president had not been and was not under investigation for obstruction of justice.”

In fact it wasn’t clear or even implied. Comey declined to make a conclusion about obstruction of justice, properly leaving that legal judgment to Mueller. “I don’t think it’s for me to say whether the conversation I had with the President was an effort to obstruct,” he testified. “I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards to what the intention was there and whether that’s an offense.”

Comey said he had leaked his memo to trigger the appointment of a special counsel. So the gist of Comey’s testimony was the opposite of Sekulow’s claim. Rather than saying the president is not under investigation for obstruction, Comey made it clear he thought the act was so disturbing that there needed to be a special counsel to investigate the president on possible obstruction. In other words, even though the White House ballyhooed the claim that Comey had cleared Trump, Comey’s testimony strongly suggest Mueller is investigating the president for possible obstruction.

As former Watergate prosecutor Philip Allen Lacovara wrote in the Washington Post, “Any experienced prosecutor would see….a prima facie case of obstruction of justice.”

Trump puts Comey’s job in play, demands loyalty, repeatedly asks him to remove the cloud of the Russia investigation, asks him to drop the Flynn criminal investigation, reportedly asks intelligence chiefs to intervene with Comey, fires Comey because of the Russia investigation and tells the Russians the firing relieves the pressure of the investigation.

Alan Dershowitz, the Harvard law professor who is Fox’s favorite commentator of late, claims the president can shut down any investigation he wants and can fire anybody he wants because he is totally in charge of the executive branch. This may have been the case before Watergate, but the Supreme Court rejected that view in 1988 in saying it was not “so central to the functioning of the executive Branch” for the president to be able to torpedo investigations of himself and aides. https://lawfareblog.com/view-supreme-court-alan-dershowitz-wrong-about-powers-president

  1. A cabinet meeting like no other.

The most surreal moment of the week, however, was not the made up charges of the right-wing media, but rather the actual video of Trump’s first full cabinet meeting.

The president who has yet to get a major bill through the GOP Congress, bragged “Never has there been a president, with few exceptions…who has passed more legislation….” As cabinet and staff heaped praise on Trump, Chief of Staff Reince Priebus’s comment stood out as he thanked Trump for “the blessing that you’ve given us to serve your agenda.”

In the real world, one of those blessings was Trump’s reported ultimatum that Priebus had until July 4 to clean up the White House’s dysfunctional staff. http://www.politico.com/story/2017/06/11/donald-trump-reince-priebus-deadline-239411

 

Trump, twitter, transparency and trouble

Commentary

by William H. Freivogel

During the presidential election, critics of the media maintained the press paid too much attention to Donald Trump’s tweets. Focusing on the tweets let Trump set the day’s news agenda and gave him oodles of free coverage, the critics said.

Five months into Trump’s presidency it is the president’s lawyers, spokespeople, diplomats and other White House aides who wish the president would pipe down.

But Trump won’t be silenced. Even though it is his aides telling him to limit his tweets, Trump blames his usual foil for trying to shut him up – the dishonest mainstream media. “The FAKE MSM is working so hard to get me not to use Social Media,” he tweeted this week. “They hate that I can get the honest and unfiltered message out.” Trump also points out he wouldn’t have won the election without his tweets reaching tens of millions of people.

But winning the election is one thing. Running the world’s leading democracy and most powerful country is another.

Some of the biggest controversies and setbacks of the Trump presidency trace back to Trump tweets – the false claim that President Obama tapped Trump Tower, his warning to fired FBI director James Comey there might be tapes of their conversations and his insistence that his executive order is a travel ban even though his lawyers have labored assiduously to say it isn’t.

Kellyanne Conway blamed the media this week for “this obsession with covering everything he says on Twitter and very little of what he does as president.”

Conway had reason to be in a bad mood. Her husband George, a well-know conservative lawyer, criticized the president’s tweet on the travel ban in a tweet of his own. Conway said Trump’s tweet won’t help “get 5 votes in SCOTUS, which is what actually matters. Sad.”

Many legal observers thought the conservative majority on the Supreme Court would be more inclined than lower courts to buy the administration argument that judges should consider only the four corners of the executive order rather than looking at Trump’s statements as a presidential candidate. But it’s hard not to look at the words Trump is writing today about the intention to impose a travel ban on predominantly Muslim countries.

The White House had conflicting guidance on whether the tweets are official policy. Sebastian Gorka, a senior White House national security official, told CNN that “It’s not policy. It’s social media.” But press spokesman Sean Spicer said the tweets were official statements.

Trump’s tweet war was a world war by mid-week as he repeatedly misquoted and insulted the mayor of London after terrorists attacked his city. And Trump took credit for Saudi Arabia’s move to close the border to Qatar, even though his secretary of state had said he wanted to mediate the dispute.

Trump even may live tweet his criticism of Comey’s testimony on Thursday, a prospect that must give his lawyers indigestion. Trump might have had a decent argument to block Comey’s testimony based on executive privilege, but for his tweets and public statements about his discussions with Comey. Those comments waived any privilege that might have existed.

One could argue that the public and the media should be happy. No other president has been so open about what he is thinking in real time. Isn’t transparency what we’re always demanding? And don’t we want the president to speak directly to the American people?

Also, it seems Trump occasionally commits truth in his tweets – or what he thinks is true, often an entirely different matter. If Trump’s tweets were vetted by his lawyers and his diplomats, we never would have seen the tweets about Comey or the Russia investigation or the mayor of London.

And there’s the entertainment value. The tweets amuse loyal supporters, serve up delicious outrage to opponents and provide wonderful late night comedy.

Still, this is no way to form policy and run a government. It is chaotic and makes the United States a laughing stock. All the world can see that the one thing that animates the most powerful man in the world is to always be the center of attention. Trump would be more effective if he got a little more sleep and stayed off the 8 a.m. twitter cycle.

Tweets, leaks and the truth about Trump

Commentary

by William H. Freivogel

President Donald J. Trump is playing his supporters for patsies. The First Amendment protects Trump’s lies to his Twitter followers, but it also protects the leaked stories that reveal them.

Trump calls the burgeoning investigation of Russia’s interference in the presidential election “fake news” and a “witch hunt,” even as the investigation threatens his presidency.

He calls the Washington Post and New York Times “fake news” organizations, when they are among the nation’s best journalists and have provided the most accurate picture of what is happening in his White House.

Trump calls his trip to the Middle East and Russia a “homerun,” even though he alienated the most important elected leader on the European continent.

A spokeswoman speaks adoringly of a president who has “a magnetic personality….brilliant with a great sense of humor,” while press accounts describe an angry president lashing out at his aides,

Trump brags about draining the swamp while he appoints record numbers of billionaires and Wall Street insiders.

Trump promises health care for everyone but pushes a bill that takes it away from 23 million Americans and gives millionaires $600 billion in tax breaks.

Trump claims he would have won the popular vote if millions of illegal aliens hadn’t voted for Clinton, yet still has nothing to prove it.

Fox News, often Trump’s propaganda arm, discloses the Seth Rich conspiracy theory that the Democratic National Committee staffer was murdered because he – rather than the Russians – leaked the DNC emails to WikiLeaks. Fox eventually retracted the story, but its leading pundit, Sean Hannity, is retracting nothing.

While the Times is disclosing Trump relayed “code word” intelligence to the Russian ambassador in the Oval Office, Breitbart headlines the bogus Seth Rich conspiracy, criticizing “Silence from Establishment Media over Seth Rich WikiLeaks Report.”

Trump says the big story is the leaks to the press, which his Homeland Security chief John Kelly calls “darn close to treason.” But without the leaks Americans wouldn’t know of Trump’s leak to the Russians, or Flynn’s conversations with the Russian ambassador, or Jared Kushner’s attempt to set up a back channel to Putin on Russian diplomatic facilities or Trump’s request of former FBI Director James Comey to ease off the investigation of Flynn.

British Prime Minister Theresa May had every reason last week to be upset that information about the Manchester terrorism attack was leaked to American media, including the New York Times. She is right that British intelligence has to be able to count on American intelligence to protect secrets. Trump’s call for an investigation of the leaks was appropriate.

But America is not Britain. We have the First Amendment and Britain has the Official Secrets Act.

In Britain, the government can stop the media from publishing top secret information. In the United States the government almost never can stop publication.

That is the lesson of the 1971 Pentagon Papers case when President Nixon tried to stop the New York Times’ publication of stories based on the 40-volume secret history of the Vietnam War showing presidents had lied to the American people. Our government can only stop publication where there is “direct, immediate, and irreparable damage to our Nation or its people.”

Presidents have made audacious claims of harm from leaks. Nixon claimed thousands more Americans would be killed in Vietnam. President George W. Bush told Times’ editors in the White House that the blood would be on their hands if they disclosed that the National Security Agency was tapping Americans’ conversations without a warrant. President Barack Obama’s administration claimed NSA meta-data collection revealed by Edward Snowden was instrumental in combating 50-plus terrorism attacks.

None of those things happened. Nixon’s solicitor general, Erwin Griswold, admitted later that the Pentagon Papers harmed no one. No terrorist attacks are linked to the revelation of the Bush era wiretaps. And close analysis showed the NSA programs revealed by Snowden had not thwarted terrorist attacks.

Rather than causing harm, these disclosures helped the nation come to grips with the mistakes of the Vietnam War and the excesses of government surveillance.

This isn’t to say that journalists should disclose every secret. Reputable news organizations like the Times and Post contact top government officials before publication and withhold details that could pose harm. But the final decision on publication must remain with the editors, not the officials. That’s what the First Amendment commands.

What the First Amendment cannot command is that our public officials or our media always tell the truth.

Breitbart and Hannity can claim without proof that Seth Rich was murdered for supposedly providing the hacked DNC emails to WikiLeaks. It’s up to the much-maligned mainstream media (MSM) and the people to hold up those claims to the facts and the unanimous judgment of Western intelligence that it was the Russians who provided the hacked information. There is no more evidence of a Democrat assassin than there is of those fraudulent voters in the last election or of President Obama ordering Trump Tower tapped or of Hillary Clinton’s mythical child sex ring at Comet Pizza.   http://www.billofrights225.com/the-presss-identity-crisis/

Trump can claim the Times, Post and other reputable media are purveyors of Fake News. It’s his First Amendment right. But when asked for proof, the White House produces only a couple of quickly corrected reportorial errors on the Martin Luther King bust and Trump’s earpiece for listening to a translation. The substantive disclosures reported by the Times, Post and others have not been rebutted.

Ironically, Trump is almost as likely commit truth in his Twitter outbursts as to lie. He acknowledged thinking about the Russia investigation at the time he fired Comey – an act that could be part of a case of obstruction of justice. No longer does there have to be evidence of Trump collusion with the Russians in the election espionage. It’s enough to prove Trump tried to quash the Russia investigation. No one proved Nixon knew of the Watergate burglary, just that he covered up.

Congress, the professional press and Special Counsel Robert Mueller have many months of important work ahead to find the facts and determine if crimes or impeachable offenses were committed. The final verdict, however, will rest with the people whom the president is playing for patsies.

Legacy newspapers still dominate democracy on digital frontier

By William H. Freivogel

The title of the conference in Mountain View, Calif., was Legal Frontiers in Digital Media, convened appropriately at the Computer History Museum in the heart of Silicon Valley. But every few hours during its sessions last week, the crown jewels of legacy media, The New York Times and the Washington Post, published bulletins with new disclosures about President Trump.

  • Trump told Russians that firing ‘nut job’ Comey eased pressure from investigation — Times
  • FBI investigates close Trump White House adviser as person of interest as the Russia investigation ramps up — Post
  • Comey practiced how to keep Trump at bay during meetings, worried president wouldn’t respect legal and ethical boundaries — Post
  • Comey to testify publicly — Times and Post

Sure, these bulletins came into the conference on phone apps. No one waited for the next day’s newspaper. But it was impossible to miss the anachronism of legacy newspapers driving the nation’s biggest story the way the Times drove the Pentagon Papers and the Post drove Watergate almost half a century ago.

However, this time everything was in hyperdrive, with bulletins arriving on cell phone screens a few minutes or hours apart. Instead of the day-long news cycle, there was a new deadline every second. Sometimes the Times would have a bulletin and an hour later the Post would match it or top it. Or the Post would have the disclosure and the Times would match it.

This doesn’t mean media are going back to the old days. But it is a reminder of how important it is for legacy news organizations to find ways to sustain the big, professional news staffs that have connections with top government officials and can bring in scoops. For the time being, the jump in digital subscribers at the Times and the infusion of Jeff Bezos’ money at the Post have reinforced the power of those newsrooms.

Still, today’s media bear only a passing resemblance to the media of the Watergate days. Presenters at the Legal Frontiers conference weren’t lawyers for the Times or the Post, but from Google, Twitter and Facebook.

And the legal and moral questions they addressed were uniquely 21st century issues.

  • If a person has a gun to his head on Facebook Live or Periscope, what should the internet companies do? Cut the feed to protect viewers from the trauma or keep the feed going in hopes users can talk him down? “We leave livestreams up as long as we thing there is a chance of engagement,” says Facebook’s Monika Bickert.
  • When should hateful posts be taken down because they are calls for terrorist acts and when are they merely extreme commentary on the state of the world worthy of continued publication and debate?
  • Should a website called ModelMayhem — “where professional models meet model photographers” — be responsible for sex predators using the site to pose as photographers to lure young children to Florida for sexual exploitation?
  • When is Backpage responsible for sex trafficking resulting from its classified ads?
  • What should Twitter and Facebook do about the silos of truly fake news centered around InfoWars and Breitbart? Brittan Heller of the Anti-Defamation League said its year-long study from 2015 to 2016 found the universe of online accounts spreading fake news and attacking journalists was relatively small and self-described as supporting white nationalism, America and Trump.
  • Should a U.S. contractor shot by ISIS in Jordan be able to collect damages from Twitter, which had to know that ISIS fighters were instigating violence against Americans with their tweets?
  • Must U.S. law enforcement officials go through difficult international channels to get information for a terrorism investigation when that information is probably in a computer in Mountain View?
  • Are European countries conducting a war on U.S. technology companies such as Google and Facebook by trying to enforce European values on U.S. firms — values like the “right to be forgotten” and laws against hate speech. How should the U.S. platforms react when European rulings or laws collide with First Amendment values?

The clash between the dominant European view of privacy and America’s First Amendment values is one between different views of democracy, said Jonathan Kanter, a Washington antitrust D.C. lawyer.

“From the perspective of Europeans it is a desire to protect democracy not damage it…. There is a disconnect between us and Europe on privacy and speech. Privacy is the essence of freedom in Europe. Europe is concerned about private companies (such as Google) making decisions, but we feel competition is essential to democracy.”

Robert Post, the retiring dean of the Yale Law School, agrees that democracy is at stake. “If each person could control information about them in the public sphere, we could not have a democracy,” he said.

Representatives of Twitter and Facebook described elaborate outreach efforts they have made to counteract hate speech with positive speech. These included organizing 80 civil society groups in Germany to promote positive speech. In the U.S., Facebook is working with university faculties to train students on how to use Facebook to counter extremism in their communities.

Post said Google should be treated like a newspaper, not as some private entity outside the public sphere. He quoted the famous French philosopher Alexis De Tocqueville, who wrote in “Democracy in America,” that “nothing but a newspaper can drop the same thought into a thousand minds at the same moment.”

Last week, that 19th century wisdom never seemed truer as the two great U.S. newspapers of the 20th century delivered breaking stories every few hours over their 21st century platforms. Each disclosure dropped into the minds of millions of Americans and each will have an impact on the way voters and their elected representatives view the days ahead in this troubled democracy.

Confidential source stories check presidential abuse of power

Commentary

by William H. Freivogel

Confidential sources are the lifeblood of reporting about abuses of power by high government officials. Source reporting provides a vital check on presidential power.

If the Washington Post hadn’t relied on confidential sources to report about Michael Flynn’s discussions with the Russian ambassador, Flynn might still be the National Security Adviser. President Trump had known about the discussions for two weeks but fired Flynn only after the public disclosure in a source story.

If the Washington Post hadn’t relied on Deep Throat – Mark Felt, the associate director of the FBI – President Nixon’s Watergate abuses of power might never have been fully disclosed.

So this week, the Post acted properly in reporting the information from unnamed “current and former U.S. officials” that Trump had jeopardized an important intelligence source providing information about ISIS. In a boast, Trump reportedly disclosed to the Russian foreign minister and ambassador the city in the Islamic State from which an allied intelligence agency was getting this “code word” intelligence.

And The New York Times acted properly this week in relying on an unnamed source who read them a memo written by fired FBI Director James Comey describing how Trump asked him to shut down the FBI investigation of Flynn.

It is in the public interest for the American people to know how carelessly the president is handling top secret information. It is in the public interest for people to know that Trump may have taken steps to obstruct justice.

The stories are two of many disclosures from confidential sources that have painted a vivid picture of a president out of control. The unnamed sources took extraordinary risks in providing the information to the Post because they may be committing a crime.

This doesn’t mean that all confidential leaks are good. The Bush administration leak that Valerie Plame was a spy did not blow the whistle on wrongdoing by the powerful – it was the powerful trying to punish the whistleblower – in this instance, Plame’s husband, Joseph Wilson who debunked President Bush’s false State of the Union claim about Saddam Hussein getting yellow cake uranium from Niger.

Nor were Judith Miller’s stories about Saddam’s weapons of mass destruction – sourced to unnamed government officials – in the public interest. They primed the pump for war.

And more recently, the publication by WikiLeaks of secrets apparently hacked by Russian intelligence from the Democratic National Committee helped our major adversary destabilize our presidential election. Russian agents stealing secrets online is worse than former CIA agents burglarizing the Democratic National Committee at the Watergate.

Journalism ethics properly urge news organizations to try to get information on the record. But when writing about secrets or the powerful, that’s difficult. Prominent whistle blowers whose identities became known – Daniel Ellsberg, Chelsea Manning and Edward Snowden – were charged with espionage for their leaks – even though the Pentagon Papers and NSA data-mining leaks were in the national interest.

Publishing national security secrets is one of the ways in which the press checks the power of the modern presidency. Justice Potter Stewart said as much in the Pentagon Papers decision opening the way for publication of the top-secret history of the Vietnam War. Stewart wrote: “In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people.”

The notion that an alert, aware and free press helps create an enlightened citizenry may seem old-fashioned these days when partisans and the president label news they don’t like fake news. But the professional press’ role in informing the people has seldom been more important.

 

From Deep Throat to WikiLeaks

 

Publishing national security secrets

Trump’s explanation of Comey firing provides ultimate test of press’ fairness and truthfulness

by William H. Freivogel

President Trump’s entire presidency, his entire political career in fact, has provided the severest test to the mainstream media’s mission of presenting the news fairly and in context.  No previous president, not even Nixon, has lied so frequently and campaigned so vigorously to delegitimize mainstream journalism.

But Trump’s firing of FBI Director James B. Comey provided the toughest challenge yet for journalists trying to be objective while still reporting the truth.  The reason: The White House’s official explanation of Comey’s firing is almost certainly not the real explanation.

The official explanation by Deputy Attorney General Rod J. Rosenstein might have made sense if issued last July.  Rosenstein based his recommendation on Comey’s announcement that the FBI didn’t have enough evidence to prosecute Hillary Clinton for her email indiscretions.  Rosenstein is right in saying this generally is not the FBI’s job.  The FBI investigates and submits its findings to lawyers in the Justice Department who make the decision on prosecution. Comey, who himself was once deputy attorney general, took on the role of making the decision because Attorney General Loretta Lynch said she would accept his judgment and that of career prosecutors after Bill Clinton’s foolish visit to her on an airplane during the campaign.  It is debatable whether Comey should have made the final decision or whether he should have submitted the evidence to the highest ranking Justice Department official not conflicted.  Probably he should have done the latter.

But when the decision to fire Comey comes 10 months later, in the middle of the FBI’s investigation of Russian influence in the 2016 election, the press could hardly report Rosenstein’s explanation and leave it at that.  Every journalistic instinct tells reporters and editors – and probably most Americans – that Trump fired Comey because the FBI director was ramping up the Russia investigation, which Trump claims is fake news propagated by fake news outlets like The New York Times.  (There are echoes of “third rate burglary” in those Trump tweets.)

Charles Krauthammer, the conservative analyst on Fox, remarked on the implausibility of Trump’s explanation.  “Here is what is so odd about it. This is about, according to the letter by the Deputy Attorney General,… something that occurred on July 5. So we start out with something that is highly implausible. If that was so offensive to the Trump administration, What you would have done, in the transition, you would have spoken with Comey and said we are going to let you go. That’s when a president could very easily make a decision to have a change. That’s not unprecedented. But to fire him summarily with no warning in the middle of May because of something that happened in July is almost inexplicable. Second, the reason ostensibly is, as you read in the letter, for doing something that you are not supposed to do, to usurp the Attorney General. Second, to release all the information which was damaging to Hillary Clinton, Donald Trump’s opponent. Do we really believe that Donald Trump come after all these months, decided suddenly he had to fire this guy because he damaged Hillary back in July? Another implausible conjecture….”

Eric Posner, a law professor at the University of Chicago, put it this way: “In an ingenious bit of Machiavellian jujitsu, Trump fired Comey for incompetence, simultaneously: (1) eliminating an independent official who might act as a check on illegal behavior, (2) paving the way for the appointment of a stooge, and (3) enhancing Trump’s tough-guy image.”

Is this a replay of the Saturday Night Massacre? There are ways to distinguish Trump’s action from Nixon’s.  But there is a fundamental similarity: In each case the president moved to fire the law enforcement official who posed the greatest danger to his presidency.

Michael A. Wolff – Freedom Fighter

by William H. Freivogel

Mike Wolff has helped save men on death row, preserve the St. Louis school desegregation program, end capital punishment for juveniles, protect the vote of poor people, establish jury trials in discrimination cases, preserve jury verdicts in personal injury suits and foster efforts to rid St. Louis’ municipal courts of longstanding injustices.

Few St. Louisans have made such important contributions to the public good over the past 30 years. As a legal services lawyer, civil liberties lawyer, special counsel to Gov. Mel Carnahan, Missouri Supreme Court judge and chief justice and retiring dean of the Saint Louis University Law school, Wolff has always been on the side of equality, freedom and good government.

This is why the Gateway Journalism Review is awarding Wolff the Freedom Fighter award at its First Amendment celebration on March 23.

Not only has Wolff accomplished more than just about any community leader, he always seems to be having more fun than anyone in the room. A big man, Wolff has a ready smile and a repertoire of wry, funny stories on the tip of the tongue. He’s not averse to chuckling at his own stories.

While on the Supreme Court, Wolff was that rare judge who was willing to explain a court decision to a reporter. Even rarer, he wrote like a journalist in a simple, common sense way that people could understand.

When Wolff was chief justice, AT&T Mobility tried to avoid having to pay tens of millions in taxes due on telephones. The company claimed cell phones were actually two-way radios instead of phones.

Wolff interrupted the technical arguments by holding up a cell phone in front of the lawyers and asking rhetorically if anyone doubted it was a phone.

In a 2011 adoption case, Wolff criticized the majority of the court for delaying the reunion of a boy and his immigrant mother whose parental rights had been unfairly terminated by a lower court. Wolff wrote that the mother and boy should be reunited “not in 90 more days or 900 more days, but now.”

Referring to the biblical story of Solomon, Wolff added, “At least Solomon had the option to decree that the child be cut in half. All we lesser judges have is the law, and it is our duty to make sure that the law is obeyed.”

In 2009, when the state Supreme Court rejected a challenge to Missouri’s school funding formula, Wolff lamented that $6,342 went to educate each Festus student, but $16,647 each Clayton student.

“What makes the children of one school district deserving of only about one-third of the education money available for the schools of the children in the highest-spending district?”

he asked.

It’s not surprising that Wolff writes like a reporter. After graduating from Dartmouth, he worked his way through the University of Minnesota law school as a reporter and copy editor on the Minneapolis Star Tribune.

Eddie Roth, a lawyer turned journalist turned public official, puts it this way: “Mike’s record of judicial leadership has his old reporter’s fingerprints all over it. He plied small ‘p’ politics from the bench the way journalists work from newsrooms; not by throwing his weight around, but by throwing well-reported, incisively expressed ideas around. He used fourth estate methods to advance third branch ideals.

“And by forging consensus through carefully constructed, durable foundations of law and fact, Mike Wolff has created platforms on which many have been empowered and inspired to participate in fights to win and preserve freedom.”

After a stint in legal services in St. Paul, Denver and as director in Rapid City, S.D., Wolff joined the Saint Louis University Law School faculty in 1975. He also served as general counsel to the American Civil Liberties Union of Eastern Missouri.

Wolff was the lone Democrat to challenge Republican Attorney General William Webster in 1988.  Terry Ganey, the retired Post-Dispatch reporter who disclosed Webster’s Second Injury Fund scandal, recalls the race: “Webster, an incumbent, was considered unbeatable. Wolff at that time raised the issue of the Second Injury Fund being a problem. He was way ahead in making that an issue.”

Wolff lost in 1988 and lost the Democratic primary four years later to Jay Nixon. But the abuses of the Second Injury Fund helped bring down the Webster in the 1992 race for governor against Mel Carnahan. Wolff became Carnahan’s counsel.

One of Wolff’s leading accomplishments was to help craft legislation, supported by the governor, business leaders and a bi-partisan group of legislators, that made possible a negotiated settlement of the St. Louis desegregation case. The legislation extended the life of the novel program, which continues to exist, and directed state money to school districts with large percentages of poor children. The legislation finessed resistance from Nixon, who had waged an all-out legal campaign to end the transfer program.

As counsel Wolff reviewed the pleas of death row inmates. After Carnahan named Wolff to the state Supreme Court, Wolff was a leader of the court’s close scrutiny of capital cases.

Wolff joined the opinion of his friend, the late Richard Teitelman, in freeing Joseph Amrine from death row after the three key witnesses recanted their testimony. Wolff also took of heat of writing the decision giving Kenneth Baumruk a new trial in 2002. Baumruk had been convicted in the same courthouse where he had killed his wife and shot four others.

The most important death penalty decision led to the U.S. Supreme Court to end the execution of juveniles.

It’s not often that a state supreme court leads the U.S. Supreme Court into a new interpretation of the Constitution. But that’s what happened after the state Supreme Court ruled 4-3 that Christopher Simmons could not be executed for murdering Shirley Crook because he was under 18 when he committed the crime. The U.S Supreme agreed that evolving standards of decency no longer permitted executing teens because their brains are not fully developed.

In another notable decision, Wolff was part of the majority that ruled photo ID requirements violated the promise of equality in the Missouri Constitution. That decision has blocked stringent photo ID laws for the past decade.

In other important decisions, Wolff established the right to a jury trial in employment discrimination cases, rejected caps on damage awards as deprivations of the right to trial by jury and upheld the right to collective bargaining for public employees. While on the court he also chaired the Sentencing Advisory Commission and was active in national efforts aimed at more rational, less arbitrary criminal sentencing.

After the court, Wolff became dean of Saint Louis University Law School, righting the ship after a tumultuous period during which the Rev. Lawrence Biondi forced out one dean and appointed an interim dean who did nothing to quiet things down.

The law school became a hotbed of reform of the municipal courts after the death of Michael Brown in Ferguson in 2014. This was a tricky situation because notable alums were on different sides of the municipal court issue. Thomas Harvey, head of ArchCity defenders, led the reform effort, while other graduates were in prominent municipal court judgeships.

Faculty also got heavily involved in the reform, including Professors John Ammann and Brendan Roediger. Wolff saw it as his job as dean to make sure Ammann and Roediger could fully represent their clients, whose lives had been damaged in the muni court shuffle of being locked up for failing to pay traffic fines.

Nor was Wolff afraid to criticize his old colleagues for moving too slowly to bring an end to the unjust practices in the municipal courts. Last summer, Wolff expressed his impatience with the slow response from the presiding judge of the St. Louis County Circuit Court and from the state Supreme Court. That was before the Supreme Court acted at the end of the year to required important changes.

Wolff’s wife, Dr. Patricia Wolff, has long run the Meds & Food for Kids foundation that feeds a miracle peanut butter supplement to malnourished children in Haiti, saving hundreds of thousands of children.

It’s hard to think of another St. Louis couple that has contributed so much to the public good.