A hallmark of the 116th Congress will be investigations, investigations, and more investigations. Just 41 days in, we are seeing various Democratic committee chairs in the House setting a course, flexing their muscles, but also feeling their way – there are 689 days to go.
Just last week, Rep. Adam Schiff, Chairman of the House Intelligence Committee, announced an expansive five-point investigation that includes inquiries into Trump’s financial dealings. Rep. Jerry Nadler, Chairman of the House Judiciary Committee who has vowed to look into various issues like obstruction of justice and Trump’s family separation policy, got into a subpoena fight with Acting Attorney General Matt Whitaker, setting expectations that testimony would be compelled from unwilling and unforthcoming witnesses. And on Friday, Rep. Maxine Waters, Chairwoman of the Financial Services Committee, made a clear promise to the president: “We’re going to get your tax returns.”
The president has responded to the investigations with a complaint of “presidential harassment,” his new(ish) catch phrase–courtesy of Senate Majority Leader Mitch McConnell. You can now add that to the well-worn phrases like “witch hunt” and “fake news” that have worked to energize Trump’s base and become embedded in ordinary language and the national psyche. For a measure of just how entrenched these terms have become in our culture, take a look at the photo someone tweeted of a “fake news” t-shirt on display at Bloomingdales, the popular department store in NYC.
As Trump has done with Special Counsel Mueller (“conflicted prosecutor gone rogue”) and “his gang of Angry Democrats,” the president predictably resorted to ad hominem broadsides against his newly empowered, gavel-wielding inquisitors. Rep. Schiff? — a “political hack who’s trying to build a name for himself.” Rep. Waters? — “An extraordinarily low IQ person.”
Trump’s nature is to go over the top or below the belt any time he feels threatened by his adversaries, as we’ve seen with Special Counsel Mueller. His kicks and punches land harder, however, when the accusations of partisanship are against politicians. Unlike Mueller and independent-minded U.S. attorneys, House Democratic committee chairs are by definition partisan (the noun, and most often, the adjective). They are Democrats, who make no secret of, and even rejoice in, their disdain for the president and his policies.
The committees with subpoena power ought to be mindful that though their roles as investigators are different from those of independent Justice Department appointees, they should aspire to their professionalism as much as possible. The most effective investigators keep an open mind, act without bias, pursue targets without fear or favor, and ignore politics and public opinion. These ideals don’t necessarily deliver electoral victories or political theater, but they do serve to uncover truth.
As the investigations unfold over the next two years, it is our job to ask ourselves the following questions to help assess whether, and ensure that, the search for facts is on the right track.
1. Was a material basis provided for each inquiry?
2. Were concessions made when appropriate?
3. Were the findings overstated?
4. Were there leaks?
5. Did the Committee Chairmen remain even-keeled?
And I’ll add one more: did the members of congress resist the urge to respond to the president’s barbs in kind?
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TABLOIDS AND THE FIRST AMENDMENT
What will Jeff Bezos do? It’s a question many are asking in light of the Amazon founder’s remarkable post in Medium last week accusing the National Enquirer publisher AMI and its chairman David Pecker of “blackmail and extortion.”
As the world learned, AMI threatened to publish more intimate texts and photos of Bezos unless he ended his investigation into the leak that revealed his affair and publicly disavowed his allegations that the Enquirer’s story was politically motivated. The matter is reportedly under investigation by SDNY prosecutors who must determine whether AMI committed a crime and thereby breached a non-prosecution agreement the office has with the media company in an unrelated case involving Michael Cohen and hush-money payments to Trump’s alleged mistresses. It remains to be seen whether Bezos will pursue a civil lawsuit against AMI that could potentially put the company out of business.
The Bezos-AMI fiasco has drawn comparisons to the time Hulk Hogan sued Gawker over a sex tape, and the businessman Peter Thiel financed a lawsuit that ultimately won the wrestler a multimillion dollar verdict while bankrupting the digital tabloid.
The Gawker case raised a multitude of questions. What is newsworthy and what matters are of purely private concern? When, if ever, is it permissible to punish the publication of truthful information without violating the First Amendment? Should websites be treated the same as traditional news outlets like newspapers, radio, and TV?
As the Bezos saga plays out in the coming weeks, it’s a good time to revisit Jeffrey Toobin’s 2016 article in the New Yorker that digs into the Gawker lawsuit and the constitutional principles raised by tabloid journalism. Toobin writes:
[T]he lawsuit seems destined to have an enduring afterlife, and not just because of the revelation that it had been secretly financed by a tech billionaire with a vendetta against Gawker. The verdict heralds a new era, in which judges and jurors see the ribald world of the Internet, rather than the staid realm of newspapers, as the dominant form of journalism. Since the nineteen-sixties, a series of Supreme Court precedents, most of them involving newspapers, have made libel cases very difficult to win, in part because plaintiffs bear the burden of proving that the stories about them are false. In these cases, the Court came close to saying, but never quite said, that publication of the truth was always protected by the First Amendment. But, in an age when Internet publishers can, with a few clicks, distribute revenge porn, medical records, and sex tapes—all of it truthful and accurate—courts are having second thoughts about guaranteeing First Amendment protection. Hulk Hogan conceded that Gawker’s story about him was true, yet he still won a vast judgment and, not incidentally, drove the Web site out of business. The prospect of liability, perhaps existential in nature, for true stories presents a chilling risk for those who rely on the First Amendment.
What are your thoughts on the questions raised by tabloid journalism? Let us know by writing to firstname.lastname@example.org
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BEZOS, AMI, AND TMI
** Programming note: CAFE Insider podcast will be off next Monday for President’s Day and back on Tuesday, February 19.
Takeaways from the latest episode of CAFE Insider:
• Did AMI commit the crime of extortion? If so, what happens to AMI’s non-prosecution agreement with SDNY? AMI threatened to publish Bezos’ intimate photos unless Bezos issued a public statement refuting earlier claims that the National Enquirer’s reporting was politically motivated. One applicable federal statute is 18 USC 875(d) which, in relevant parts states that whoever, with intent to extort from any person any thing of value, transmits any communication containing any threat to injure the reputation of the addressee, is guilty of extortion. While this isn’t an open-and-shut case, there is probably enough evidence to present to a grand jury. The statement of vindication AMI sought from Bezos is a “thing of value,” as evidenced by the fact that AMI chose to forgo the profits it would derive from publishing the photos and instead, pursued a risky and perhaps fatal strategy of coercing a billionaire.
If SDNY determines that AMI committed a crime, it allows prosecutors to rip up the cooperation agreement the office has with AMI in an unrelated case involving Michael Cohen and hush money payments to Trump’s alleged mistresses. The cooperation agreement speeds up the investigative process on the Bezos extortion inquiry because it obligates AMI to provide any emails, texts, and other documents which would otherwise be sought through subpoenas. It wouldn’t be surprising if SDNY demanded documents related to all potential claims of extortion against AMI, having been awakened to the company’s potential pattern of coercive behavior.
• What did you make of Acting Attorney General Matthew Whitaker’s hearing before the House Judiciary Committee? The five-minute-per-question rule is ineffective for eliciting information from a witness. The viral moment from the hearing when Whitaker (jokingly?) told Chairman Jerry Nadler that his five minutes were up speaks to this criticism. The rule makes it easy for witnesses to filibuster and avoid providing substantive answers. One option is to adopt a chain system where, if an answer to a question is incomplete, successive lawmakers follow up until the question is answered. This strategy presents its own challenges, like coordination.
When asking witnesses questions, it’s important not to use language that is subject to multiple interpretations. For example, Whitaker was asked if Trump, as had been reported, “lashed out” at him over SDNY’s Michael Cohen case. People may differ on what they regard as “lashing out.” The better and more elemental question to build on would have been, “Did you have any conversations with Trump about Michael Cohen?”
If you haven’t already, listen to “Bezos, AMI, and TMI”
THIS WEEK ON STAY TUNED
Adam McKay, the Oscar-nominated director of Vice, is this week’s guest on Stay Tuned. In a wide-ranging conversation, McKay talks about Dick Cheney, the Reagan Revolution, the craft of filmmaking, and more.
In this sneak peek at the interview, Preet asks McKay about the Cheney paradox. He subordinated himself to President Bush while simultaneously positioning himself to become the most powerful Vice President in American history:
I think that describes the essence of Cheney. He’s kind of the ultimate co-dependent. Through being subordinate, through being of ultimate service, he is actually able to bring out in the person the things that give him his own power. And it’s a very complicated process he’s going through because it’s not a guy who’s bullying or pushing or yelling. I have a feeling it would feel really good to have Dick Cheney on your right side, whispering into your ear. He probably is very calming. He’s very knowledgeable. I could see how he would be seductive… That contradiction we found really fascinating. [Condensed and edited for clarity]
Don’t forget to listen to this week’s episode of Stay Tuned. It drops this Thursday, 2/14.
SOMEONE TO FOLLOW
Yashar Ali is a freelance journalist who contributes to New York magazine and HuffPost. His Twitter feed is a great resource for breaking news and analysis, but also sure to resonate with elephant lovers and picky eaters.