Trump’s Retribution Requires a New Way of Covering Bogus Criminal Cases
INSIDE: James Comey ... Letitia James ... John Bolton
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.
The Old Journalism Doesn’t Work in the Current Moment
With the not-at-all-surprising-but-still-dismaying news that newly appointed U.S. Attorney Lindsey Halligan will seek an indictment of former FBI Director James Comey on bogus charges of lying to Congress after her predecessor declined to do so, it’s a good time to do a reset ahead of the anticipated wave of Trump-driven political prosecutions.
Let’s start with a few foundational observations:
(1) Lindsey Halligan was appointed U.S. attorney specifically to prosecute Trump foes Comey and Letitia James. Trump didn’t force out the prior U.S. attorney for the Eastern District of Virginia for failing to exact retribution against his adversaries, only to turn around and appoint someone who would similarly demur.
(2) Any prosecution of Trump foes is presumptively corrupt. In rare instances, that presumption might be overcome by overwhelming evidence of wrongdoing combined with elaborate demonstrations of good faith and proper procedure. But don’t hold your breath.
(3) The traditional journalistic practices for covering criminal investigations and prosecutions are not up to the task of dealing squarely with a president hijacking the Justice Department and using it to, variously, punish his political foes, reward his allies, and cover up his own corruption and that of those around him.
I start from these premises not because they answer every question — they don’t — but because they begin to offer some clarity by framing up the right questions and avoiding the wrong ones.
The key thing to remember is that we’re already well beyond the event horizon in the corruption of the Justice Department. If federal judges, having dispensed with the presumption of regularity in the functioning of the government, no longer give the Justice Department the benefit of the doubt in court, then we shouldn’t either.
The implications of that shift are enormous, but too many editors and producers are not fully grappling with them yet.
Among other things, leaked federal law enforcement details about crimes — which have formed the backbone of news coverage, especially in the pre-charging phase — can’t be taken at anything close to face value anymore (and perhaps never should have been). Social media posts by top officials, including the president himself, are not reliable, and rebroadcasting them as straight news no longer serves a public purpose. That’s not to mention the utterly unreliable real-time social media posts by a groveling FBI director trying to flatter the president and please the White House.
The incremental drip-by-drip news coverage of criminal cases, especially in public corruption cases — a highly competitive news environment that rewards the best access and quickest trigger fingers — now does a public disservice. Continuing to cover bogus prosecutions in the traditional ways gives a veneer of legitimacy to what should be framed instead as illegitimate retribution, abuse of power, and public corruption in its own right.
If for days, weeks, and months in advance of charges being brought, news outlets allow themselves to be used to parcel out each investigative development and procedural step in a politicized prosecution, then they’re letting themselves be co-opted by the bad faith actors in service of smearing the putative target. If the average news consumer is seeing the same old headlines they’ve always seen in the run-up to an indictment, how are they to process it as anything other than a normal prosecution?
When prosecutions are driven by naked political considerations, as they are in the Trump DOJ, then every morsel of information is at risk of being part of the underlying propaganda effort to frame the target as a villain, to tar them as criminal, and to exact maximum extra-judicial punishment in the court of public opinion. Editors and producers had a chance to learn these lessons from, among other examples, the Trump I prosecutions of Michael Sussmann and Igor Danchenko, who were ultimately acquitted, and the corrupt pardons of those legitimately convicted in the Russia investigation. Distressingly, the lessons didn’t stick.
If the old way of covering criminal cases clearly no longer works, the new way is concededly less clear.
Take the presumptively bogus prosecution of former Trump I national security adviser John Bolton. He’s been a Trump target and foe for years. Trump threatened to retaliate against him and now has. But what if the Justice Department has a colorable case against Bolton? Two still-independent magistrate judges signed off on the search warrants of his D.C.-area home and office. If the case against Bolton was initiated with a corrupt predicate — Trump’s desire for retribution — but Bolton did in fact retain documents and information in violation of law (which he denies, I should note), how should that be covered?
The answer can’t be to ignore court proceedings entirely. Those proceedings, more than anything else, may reveal the corrupt nature of the prosecution. And yet, the advantage (as it always has) still runs toward the government in these scenarios. Court filings unsealed this week showed the inventory of things that the FBI recovered from Bolton’s home and office. Among them, allegedly, were documents with classification markings.
You can cover the Bolton case like you might have the Sandy Berger case, another national security adviser involved in unauthorized retention of national security documents. But you would, of course, be mostly missing the point. Or you could cover the Bolton prosecution as corrupt, as it certainly is. Or you could attempt to cover it as both, not an easy choice given the inherent tensions in the framing, the confusion it could create in readers, and the fact that actual wrongdoing by the target doesn’t justify a corrupt predicate to the investigation.
I hate to urge something as anodyne as greater awareness of the inadequacies of the old way of covering criminal cases, but for now it’s a start. And perhaps it’s less about amorphous awareness and more about basic humility. We’re up against a terrifyingly corrupt president abetted by a deeply compromised Supreme Court. It’s going to take new tools and different applications of the old tools to confront the threat we face. No shame in that.
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Nicely done
Well said sir.
Thank you.