Malpractice

With regard to this week’s miserable performance by the New York Times in its gotcha-til-we-squee, front-page, lead-column scoopfest on Deputy Attorney General Rosenstein’s supposed Trumphunting, I think the whole mess requires something a little more detailed than the generalized contempt I’ve already offered on Twitter.

So here we go:

Dear men and women of the Times. From all that has been printed — and all that has not — I believe your “scoop” is decontextualized, half-thought-upon horseshit. It no more suggests a frantic or discombobulated Rosenstein, or an over-the-top, lurching cabal to get Trump, than any other amalgam of manicured, partisan-leaked facts might suggest.

I believe the fundamental and necessary context is absent from what you used to adorn your front page. I believe that context is this:

First, we are a nation that is at the cusp of a profound Constitutional crisis. That reality had already been made obvious and manifest when Mr. Comey was fired and he informed others in DOJ that judicial independence was at issue in his contacts with the new POTUS. In the wake of that firing, any and every discussion that competent DOJ professionals had about the matter would have engaged with the tactics, fears, frustrations, considerations, pitfalls and risks of proceeding to operate ethically and independent of any executive obstruction of judicial procedure. In short, if they WEREN’T sitting in rooms, stressed, trying to chart their way around an ethical minefield and still do their jobs, it reflects incompetence or, worse, abdication.

Having covered federal law enforcement, I know this much: These are men and women who occupy a unique ethical space in our governance, serving as they do at the pleasure of the U.S. president, but maintaining their fundamental oath and loyalty not to the president, but to the Constitution. There is conflict and nuance baked into that reality in the best of circumstances; the U.S. President overtly demanding loyalty and the intervention in DOJ casework by the FBI director, then firing the man is scarcely the best of circumstances.  For DOJ professionals attempting to continue in their positions after such an event, talking it all out and contemplating every option, risk and scenario is elemental to the job.

Second, what we also know here from the Times reporting thus far is that no one made application to wear a wire on POTUS. We also don’t have any information on anyone attempting to influence Cabinet members in any actual contemplation of the 25A. So, wide-ranging discussions in a room by professionals struggling with the Constitutional conflicts inherent in their role — yes. Overt action on the most provocative shards of that conversationcited in isolation by the Times? No. No fucking follow-up on any of the stuff that occupied the lead columns of the NYT.

As an indicative tell of just how selective the Times has been in manicuring the entire context of those discussions for the most provocative claims — or how selective their sources have been in trimming away context, we also have a notable tell:  Witnesses who contradict those who argue Rosenstein’s serious consideration of taping POTUS wasn’t so serious, that it was raised in the context of sarcasm.  The NYT version, notably, raised and then quickly dismissed that scenario ON THE JUMP from A1, whereas other publications gave it more meaningful and I would argue, fair consideration. Obviously, even if we deem an accounting of the discussions at DOJ in the wake of the Comey to be newsworthy — and such can be well argued —  then more reporting and the reconciling of witnesses and their memories should have been the first order of business. But no. That was not an ambition to which the Times aspired here.

Given all this, I fear a good newspaper, and at times a great newspaper, has in this instance performed disastrously. The newspaper encountered a rational and inevitable process by which professionals, while balanced on a very real ethical precipice, are meeting and spitballing their status and options — as say a bunch of reporters or editors might contemplate all manner of option, express all possible concerns, evaluate all possible risk, and likely employ all forms of sarcasm or wit when addressing their ethical role and a complicated task at hand. And then, given some available shards of information about that process by interested parties — as all sources are interested parties — the Times foolishly made itself party to what amounts to a first-news-cycle justification for an authoritarian administration to fire a torpedo into the very idea that we are a nation of laws. Because this kind of journalistic malpractice isn’t happening in a vacuum: These are perilous times. Much is no longer normal in our governance. The stakes are high.

The substance of what happened after Comey is that DOJ has proceeded to operate its independent investigative function leading to a series of indictments and convictions. The ethical necessity of proceeding with this investigation, so furiously opposed by the executive, is evidenced dramatically by the court filings and successful criminal prosecutions that have ensued. Further, there has not been a reported approach by DOJ personnel to Cabinet officials seeking to engage the 25A. Further, the president was not targeted with electronic surveillance. But now, because of the play of this article, because of the prevailing characterization of open-ended and inevitable post-Comey discussions within DOJ as being an erratic performance by the DAG, and because the top of the NYT account leads with the seeming affronts and challenges to Trump, but absurdly minimizes the fundamental fact that DOJ was already under pressure from the executive to cede its independence in matters of political interest to the president — because of all of this, the necessary prerequisite for Trump firing Rosenstein and then collapsing Mueller’s work is at hand. Witness the immediate response of the president in promising to purge DOJ within the very news cycle of the Times report.

Was the material in the story essential and newsworthy enough to continue reporting until a comprehensive and contextualized account of those discussions could be delivered? Maybe. Depends on what actually occurred, what was given real weight and what was quickly discarded by the participants. For myself, I don’t need the NYT to inform me that there was a fuck-ton of talk among the DOJ professionals after Comey was sacked. I’m sure a lot of shit was said and wondered aloud and mused about by Justice Department professionals who had been suddenly been dragged to the edge of a host of legal and ethical dilemmas and conflicts.  If not, they are all either oblivious incompetents or indifferent morons. But what became of that spitballing and bitching — how and why they actually proceeded and how they did not proceed, and what pressure they were actually under from the executive, empirically — this is the very guts, of what needed to be the reportage here. It wasn’t so in the Times. That kind of overview which would have contextualized the information the newspaper possessed was minimized, buried or wholly absent in a piece written as a gotcha scoop for rubes and partisans. That the paper had facts in a row, I have no doubt. That every paragraph scans and is vetted by those facts, I’m sure. But the totality of what the NYT delivered here is in my opinion malpractice. The tail of what DOJ people SAID in their collective ruminations at a time of great stress and real risk to the republic is now wagging the larger dog of what they actually DID in that moment. As a result, the Times created an undercooked, paper-thin narrative that falsely justifies and services the executive’s continuing assault on the DOJ’s independent investigative authority.  Was that the newspaper’s intent? No. I make no claim as to any motive on the part of the Times other than the scoop itself. But ignoring motive, that is the result.

Having said all this, I can tell you that in my years as a reporter, there are several bylines I regret. A couple, deeply. I learned stuff that was accurate and credible. But in printing it, I ended up laying people out for what they did not do, for what didn’t happen, and in one case, for the targeting of suspects who were, in the end, not suspects. I knew stuff. I had sources, documents. I was accurate. But what it actually meant and what it would mean, once printed? I had no fucking clue. I certainly did no better than the Times in understanding the essential need to wrap all possible context around something as speculative a the handful of facts known to me, or worse, manicured and delivered to me by interested parties. Thank god the stakes were not what national reporters are forced to play for presently.

Looking forward, perhaps some new reportage will show that the DAG or someone else of rank in DOJ either seriously sought to electronically surveil the president or to engage the Cabinet to consider the 25A. At that point, something more fundamental and worthy of the New York Times’ lead columns has arrived. But to this moment, nothing in the coverage thus far convinces me that we are anywhere remotely near such a threshold.

And that is why I invoked the ghost of Judith Miller and malpractices past on the Twitter machine.  The Times is essential in this historical moment. It needs to be smarter. And more deliberate. And careful. And its best editors need to reflect on their role with some greater measure of self-awareness. Or — and I don’t think I am being hyperbolic at this point — they may help us lose our republic.

*       *       *

Also, say hi to Maggie Haberman for me. Give her my absolute best.