The press has been breathless in its coverage of the three “scandals” that plague the first months of President Obama’s second term. It has been especially hyperbolic in covering the issue on which it has a direct interest: subpoenas of reporters.
Americans are told that the scandals are another Watergate, that Obama is Nixonian, that Obama will be forced to appoint a special counsel, that the president’s entire second term could be destroyed by the IRS, Benghazi and press subpoenas episodes.
It is hardly noticed that there is no evidence of criminality or presidential involvement in any of the alleged misdeeds.
Meanwhile, the really important issues related to the “scandals” get short shrift. The 501(c)4 tax status sought by the Tea Party groups has been abused to hide the identity of big corporate donors giving unlimited contributions in the wake of the Citizens United decision. And Congress continues to fail to appropriate enough money to protect embassies and consulates such as the one in Benghazi.
Here are some examples of overstatement:
- The New York Times reported this week White House Counsel Kathryn Ruemmler was told about the IRS targeting Tea Party groups “weeks before the matter became public.” As it turns out, she was told April 24. That is weeks before the disclosure – two weeks. Not exactly a cover-up.
- Bob Woodward of Watergate fame compared Obama to Nixon when discussing the edits of the talking points on Benghazi. Woodward thought this was like Nixon editing out portions of the transcript of White House conversations of criminality. Nixon White House Counsel John Dean, who disclosed that criminality to the world, said the comparison was “absurd.”
“Anyone who takes time to look at the redactions in the Benghazi emails,” he wrote,” and compares them with the deletions and distortions Nixon made with his taped conversations, will discover Woodward’s contention is baseless, not even close. First, the only redactions from the Benghazi emails are the names of CIA personnel and email addresses – not the content of the exchanges. And with 100 pages of emails released, there is no evidence any are missing. Second, there is no evidence whatsoever that Obama was personally involved in the release or redacting process.”
The most hyperbolic of the stories have concerned the Justice Department subpoena of emails of AP reporters involved in a story that outed a double agent tracking the location of al-Qaida’s bomb maker.
There is a valid concern that these subpoenas reached more broadly than any in recent memory. The Justice Department obtained the phone records of 100 employees in three AP bureaus over a two-month period without the AP’s knowledge.
This is particularly disturbing in light of the Obama administration’s zealous prosecution of leakers of government secrets. It has prosecuted twice as many national security whistleblowers as all of the previous administrations combined.
Still, the coverage of the issue has appeared one-sided.
More than 50 news organizations joined the AP’s letter to Attorney General Eric Holder arguing that the subpoenas chilled press freedom. There is nothing wrong with news organizations taking an institutional stand on an issue affecting them. They do it every day editorially. But when a professional news organization professing objectivity takes a stand, it has a special obligation to report the story fairly.
That hasn’t happened. Here are some facts that have gotten short shrift in the coverage:
- The Justice Department unquestionably has the authority to subpoena the phone records as part of a criminal investigation of leaks of classified information. There is no First Amendment protection here.
- The press is in a favored position in comparison with everyone else when it comes to these subpoenas. In a run-of-the-mill criminal investigation, prosecutors would obtain business and phone records early in the investigation. But Attorney General Elliott Richardson’s 1973 guidelines to protect the media require prosecutors to try to get the information in other ways and to use the subpoena as a last resort.
- Prosecutors in the AP case interviewed 550 witnesses and looked through tens of thousands of documents before subpoenaing the reporters’ records.
- The double agent outed by the AP story was viewed as having a real chance of locating the talented al-Qaida bomb maker who has caused death and destruction.
This week, the subpoena story took on additional steam with the Washington Post’s disclosure that Fox correspondent James Rosen was himself being investigated for criminality for colluding in an intelligence leak involving North Korea.
As GJR contributor George Salamon reports in a companion column, Eli Lake of the liberal Daily Beast tweeted that this a “war on journalism,” and Ryan Lizza of the New Yorker tweeted that the “case against Fox’s Rosen, in which (the Obama administration) is criminalizing reporting, makes all of the other ‘scandals’ look like giant nothing burgers.”
Obama himself said Thursday that reporters shouldn’t face prosecution for doing their jobs, and he instructed the attorney general to talk to the media about revising the Richardson guidelines.
The Rosen story was a shock because no news reporter has ever been charged for violating the Espionage Act in reporting national security secrets (although it is a little-remembered fact that Supreme Court Justices said that New York Times could have been prosecuted for disclosing the Pentagon Papers.)
But the media haven’t pointed out that Rosen’s reporting tactics are on the edge of the law. The general rule is that a reporter cannot be prosecuted for writing a story disclosing national security secrets as long as the reporter does not conspire with the leaker to pinpoint the documents to be purloined. Rosen, in his coded emails to his source, wrote, “I’d love to see some internal State Department analyses,” some “memos,” “evidence.”
Don’t get this criticism wrong. The IRS was wrong to target Tea Party and Patriot organizations. The security for the Benghazi compound was irresponsibly weak, and the talking points misidentified the attackers. Prosecutorial zealousness in pursuit of national security whistleblowers and reporters can chill reporting that is vital to formulation of foreign policy and to uncovering U.S. missteps.
But ever since Nixon, people have been saying that the latest scandal is another Watergate, or maybe even bigger than Watergate. People claimed it about Whitewater, Troopergate and the Lewinsky scandal. In that historical context, the three mini-scandals bedeviling the Obama administration rate barely a footnote to history.