BY PETER SCHEER—I share misgivings about the decision by multiple news organizations to go public with reports on rumors—all “unsubstantiated,” as they hastened to disclaim—about collusion between the Trump camp and Russian intelligence services; about compromising x-rated videos of Trump in the company of prostitutes during a 2013 trip to Moscow; about alleged financial inducements from Putin’s government to Trump; etc.
But, on the whole, the news media handled this story responsibly in the face of difficult choices.
For months the New York Times, Washington Post, Wall Street Journal, CNN and others sat on these explosive allegations, contained in a 35-page dossier of opposition research apparently solicited by Trump’s political adversaries. According to several news outlets, the memos are the work of a United Kingdom-based consultant with a background in British intelligence. Although the media outlets had copies of the dossier, they said they didn’t report on it because they had not been able to confirm the sensational contents.
That so many journalists refrained for months from writing about the dossier is itself remarkable, given competitive pressures. Did the self-censoring reporters have reason to believe the allegations were fabricated (which is different from not knowing whether they were true or not)? Was there, perhaps, something about the circumstances surrounding their receipt of the dossier—an aspect of this saga that has not been revealed—that caused them to doubt its authenticity or otherwise deterred them from publishing?
In any case, the silence was broken by CNN, which reported that the FBI had briefed Trump and Obama on the existence of the dossier, providing them a two–page summary of the document (as an appendix to a report about Russian interference in the election). Although the CNN report did not discuss the specific allegations, it said, in studied understatement, that “Russian operatives claim to have compromising personal and financial information about Mr. Trump.” Within hours the entire dossier became available on the internet, courtesy of BuzzFeed. BuzzFeed’s editors explained they were taking this step “so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the US government.”
There followed, in the runup to Trump’s press conference last week, a flood of articles describing, analyzing, dissecting and satirizing the dossier’s claims about clandestine meetings between representatives of Trump and officials of Russian intelligence agencies, threats of blackmail and, ahem, “showers” in Moscow.
Were these reports “fake news,” as Trump, using a label he knew would rile all serious journalists, claimed? I don’t think so. Of course, journalists ordinarily should confine their reporting to facts that they know to be true. That is a truism. But journalists sometimes find themselves in situations where they can’t verify a factual claim—and yet they must report it anyway.
The law recognizes these exceptions under the “fair reporting privilege” and other doctrinal dispensations for journalists. Examples:
–A journalist covering a newsworthy civil trial or criminal case may report on the parties’ allegations and defenses, regardless of how inflammatory, even though the journalist doesn’t know where the truth lies, and may even have reason to doubt the credibility of the prosecutor or plaintiff.
–Even-handed reporting on charges and countercharges made in a legislative or administrative proceeding. Such reporting is “privileged” regardless of whether the truth is known (or knowable) to the reporter.
–Some courts have extended a similar protection to media accounts of a press conference or other public event at which a public figure or official irresponsibly traffics in false accusations against adversaries. This is known as the privilege for “neutral reportage,” but might better be dubbed the “Trump privilege.”
These legal privileges, while helpful to CNN, BuzzFeed et al, are not an exact fit. Reports on the Trump/Russia dossier involve, not disputed allegations in official proceedings, but leaked allegations from unnamed sources concerning a public figure or official. The privileges discussed above may not apply. That, however, is not the end of the matter.
This is an area where, frankly, the law has failed to keep pace with journalistic ethics. Legal doctrine and good journalism principles are not always in sync. The latter sometimes require what the former fails to address (or, by implication, even forbid). And neither journalists nor their readers can afford to wait for the law to catch up.
Consider Watergate, the font of all modern investigative reporting. Woodward and Bernstein’s early articles in the Washington Post were not about instances of wrongdoing that the journalists had established or confirmed in their own reporting. They were articles about allegations of wrongdoing, or evidence of alleged wrongdoing, that they had confirmed were being investigated by the FBI, or federal prosecutors, or grand juries. The reporters, despite their suspicions about the Nixon administration, did not know–and, at that stage, probably could not have known—whether the allegations were true or false.
By these standards, CNN certainly made the right call in publishing its story. That the US intelligence community viewed the dossier’s allegations as sufficiently credible, not only to warrant investigation, but to brief the outgoing and incoming POTI (plural for POTUS), is ample justification for publishing. This is so even if it turns out that the dossier is 100% disinformation planted by Russian intel services.
And what about BuzzFeed’s decision to post a verbatim copy of the dossier, which, in turn, opened the door to hundreds of credulous news accounts focussing on the salacious details? Although a closer call, BuzzFeed’s decision was also defensible, in my view.
Given the gravity of the allegations against Trump as President-elect (amounting, conceivably, to charges of treason); the fact that the FBI (and presumably the Justice Department too) took the allegations seriously; and Trump’s attacks, via Twitter, against US intel agencies—BuzzFeed was justified in releasing the raw data of the dossier to the public. True or not, allegations that might derail a new administration should not be hidden from voters.
Peter Scheer, former executive director of FAC, is now a member of FAC’s Board of Directors. This column does not necessarily reflect the views of his fellow directors.