Stay Tuned Transcript: Truth In The Trump Age (with David McCraw)

Stay Tuned Transcript: Truth In The Trump Age (with David McCraw)

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Preet Bharara:              Hey folks. CAFE recently launched something to help you keep on top of today’s new cycle, the CAFE brief. It’s a weekly newsletter that recaps news and analysis of politically charged legal matters. Sign up to stay informed at cafe.com/brief. That’s cafe.com/brief.

Preet Bharara:              From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

David McCraw:             He cares very deeply what we say and he wishes we would say other things. The fact that we are critical of him, I think, eats at him. He is, in some ways, still trying to win the war he was waging as a celebrity. He wants the New York Times to say flattering things about him.

Kirsty:                           Hi, this is Kirsty in Beaverton Oregon. My question is about the census that’s coming out and whether out and whether or not it will have that citizenship question. Just in general on the census, are people required to answer all the questions, or can they just answer the ones that they choose to answer? Thanks.

Preet Bharara:              Hey Kirsty from Beaverton Oregon, thanks for your question. Look, this ass been a subject of a lot of debate and discussion, the issue of whether or not the citizenship question should be added to the census. We’ve been talking about how this is pending in front of the Supreme Court, and there’s been a further proceeding in the District Court in the Southern District of New York because a lot of people believe, I think correctly, that the addition of a citizenship question will suppress a lot of people’s participation in the census. And will also, as a result, do harm to people of color, minority communities, and that’s not a good thing. Unclear yet how the Supreme Court will rule. Now, on your general question, which I understand the spirit of, about the requirement of having to answer all the questions, yes, you’re supposed to answer all the questions. The census is very important. It’s actually in the Constitution, article 1 section 2 requires that the US government count every person living in the country, and the census must be conducted every 10 years.

Preet Bharara:              That said, in the ordinary course, because census takers try very hard to get full and complete information because it’s a very difficult and important counting responsibility. If they have an incomplete or partially filled out questionnaire the likelihood is that there will be a follow-up, or a phone call, or another visit. In fact, as I understand it, census takers make up to six attempts on every household that they visit to make sure that they get a response and a complete response. So, I’m not endorsing in any way anything other than filling it out and answering every question on the census. In addition, as I understand it, the government does have the ability to fine people for refusing to answer a census question or intentionally giving a false answer, which would be more likely in terms of a fine. But that hasn’t happened very much in the past at all. Just because it hasn’t happened in the past doesn’t mean it won’t happen in the future, particularly since so many norms are being trampled on. So, generally speaking, everyone’s supposed to answer every question, it’s not a crime not to do so, the likelihood of there being a fine is low, but it remains a possibility.

Larry:                           Hey, Creek this is Larry from Atlanta. When Attorney General Barr’s name was put into nomination it seemed to me that you thought he was a reasonable choice, sort of a best case choice. I now see him as one of the most dangerous people in the country and I wondered if you think the same thing and whether you, looking back, might change your view of him? Thank you for all you do. Bye.

Preet Bharara:              Larry, thanks for your question. I’ve been saying for some time, I think on this podcast and most recently on the CAFE Insider podcast and the accompanying newsletter, that yeah, I had a pretty significant change of heart about Bill Barr. I didn’t embrace him in the way that some others did, but I was cautiously optimistic that he would be, at a minimum, a huge improvement over Matthew Whitaker, who was the acting Attorney General. Because of my experience with him when he was the General Counsel of Verizon, in his prior stint as Attorney General of the United States before, and his reputation for being an institutionalist, that he would at least be an adult voice who would stand for the proposition that no one was above the law and everyone faces equal justice before the law, and he cared more about the institution of the Justice Department than any kind of fealty or loyalty to a particular person, like the president. I no longer have that same optimism anymore, in fact I have a significant amount of pessimism. As I said in the CAFE Insider note this week when asked the question recently, “What did you expect when you have an Attorney General who was handpicked by the president? Isn’t it standard operating procedure for that Attorney General, or some high ranking Cabinet official do everything he or she can to protect the president?”

Preet Bharara:              I thought about that for second, and it occurred to me that we have lots of examples where people have their own particular lines. For example, Bill Barr’s own Senate confirmed predecessor as Attorney General, Jeff sessions, decided based on the advice of career people, ethics folks at the Department of Justice, that he would recuse himself from everything having to do with the Russia investigation. Even though he had a lot of pressure to unrecuse himself, even though he got mocked and humiliated by the President on a regular basis and ultimately was forced out of office because of that recusal. Jeff Sessions didn’t do the President’s bidding because he had some higher principle, at least with respect to that issue.

Preet Bharara:              Don McGahn, the former White House counsel, who I don’t think is any kind of heroic legal, at least based on his prior life before coming to the White House. But he too, as detailed at length in the Mueller Report, had a line that he wouldn’t cross. The question of whether he would make phone calls and make inquiries that would result in the removal of Bob Mueller as special counsel, he didn’t do that. He had a line too. Chris Wray, who I think is one of the more underappreciated top officials at the Justice Department under President Trump, does not traffic in some of this provocative language like spying and collusion that Bill Barr seems to adopt and has no problem with. Chris Wray quietly defends his institution, he generally stays above the fray, and he is not looked upon like some kind of lackey to the president.

Preet Bharara:              So, there are a lot of examples of people who can go about their business, who you might not agree with on every issue, you might disagree with on a lot of issues, and you might have reason to criticize, but there are certain lines that they will not cross. And there’s a certain separation, an arm’s-length status that they will insist upon between themselves and their actions and the president as evidenced by the examples of Chris Wray, Jeff Sessions, and Don McGahn. I hoped that expected that Bill Barr would be a little bit more in that category. Which, by the way, is not a very high bar but sadly he’s not.

Judy:                            Preet, this is Judy from West Chester Ohio. I love your show, I love your book, program is wonderful with Benjamin Dreyer. I just wanted to tell you I diagram sentences back in the 1950s when I was in elementary school. My question is, would it be possible to make presidential candidate apply for security clearance? I don’t think that we would have a President Trump if he had had to get a security clearance before running for president. Thanks, and keep up the good show. Bye.

Preet Bharara:              Hey Judy, thanks for your question, and it’s good to hear from a soulmate sentence diagramer. So, on the question whether to make presidential candidates apply for security clearance, I’m not sure how that would work. I understand the sentiment. I a suppose you can have a process, which we don’t have now, by which you would require presidential candidates to apply for security clearance. Which, by the way, would take a lot of time, and energy, and effort when you’ve got 7000 people running for the Democratic nomination, or you can wait till someone becomes a nominee. For the purpose of it being known that the person qualifies for security clearance or not. In other words, notwithstanding what Donald Trump has done with security clearances and his many problems, I don’t think we can actually have a situation where a president who gets duly elected does not have the necessary security clearance to do the job of commander-in-chief.

Preet Bharara:              Whatever you think of Donald Trump, or the next president, or the president after that, and however compromised you think someone is, so long as it’s the case that the president is the most important powerful leader in the country and is charged with keeping us safe, that president has to have access to classified information, has to have access to briefings to make sure that he and his staff and the Defense Department and everyone else are taking the proper actions to defend the country. That’s just the way it is. There may be other people who should be fired from positions if they can’t maintain a security clearance, working in the White House, or in the CIA, or in the FBI, or for that matte, in the US Attorney’s office. I understand the perversity of having someone who is not otherwise worthy if they had been a line level FBI agent, not being able to get a security clearance having one as elected president, but I think it’s a necessary thing for the country to be safe.

Preet Bharara:              This question comes from twitter user NCalvin who asks @PreetBharara, what do you mean by hinked up, in reference to a criminal target fleeing? I saw this on page 17 of your book and assume is the legal term of art but wanted to be sure, #askpreet. So, it’s not a legal term, but it’s a term we used to use in the US Attorney’s office and no copy editor, including Benjamin Dreyer, said I should change it. Maybe I should’ve explained a little more. Hinked up is a term that we would use to refer to somebody who was worried that he was under investigation, that the heat was on, as you might say. The cops are closing in, the FBI maybe surveilling him, that there’s a chance of being charged, that’s a person who’s hinked up. Just be sure that I have not been misusing the term for a couple of decades we looked it up in Urban Dictionary, always an interesting resource. In Urban Dictionary hinked up is defined as, “when an alleged criminal believes that the cops are after them, or when they have figured you that the cops know their whereabouts.”

Preet Bharara:              As in, when a cop says, “He was hinked up and ran out the back door before we could grab him.” Obviously in the book on a number of occasions, including on page 17, I describe situations where agents and officers had to proceed cautiously when they didn’t have enough to arrest somebody and had to make a split-second decision. In this case with respect to a suspected bank fraudster named Hassan Nemazee, who was about to get on the plane to fly to Italy. W didn’t know if he was flying to Italy because he was hinked up, or if it was a regular trip previously planned.

Preet Bharara:              My guest this week is David McCraw, he’s the Deputy General Counsel for the New York Times and author of the recent book Truth In Our Times: inside the fight for press freedom in the age of alternative facts. Here’s a real fact for you, I not only read his book twice, but I also reviewed it for the New York Times. If you read my review you know what I think, David didn’t read it so I had to tell him. McCraw and I discussed press freedom and press bias, and we talked about why the Times seldom uses the L word when describing one of Trump’s falsehoods. That’s coming up, stay tuned.

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Preet Bharara:              David McCraw, thanks for being on the show.

David McCraw:             Thank you for having me.

Preet Bharara:              I’ve been wanting to have you on for a while. Full disclosure, I love your book, I was the one who reviewed of the New York Times. I reviewed a very favorable because I thought it was a great read, it covers some essentially important topics. It wasn’t enough for me to read it once, but twice, and also write the book review, but also share some of your experiences and knowledge with our listeners.

David McCraw:             Thank you, I’m glad to do it. By the way, I haven’t read the review, I’m that think skinned.

Preet Bharara:              Come on, it’s good. It’s pretty good, it’s pretty good.

David McCraw:             I was willing to accept that on people’s word.

Preet Bharara:              Well good, in that case you won’t know some the questions I’m going to ask you.

David McCraw:             Okay.

Preet Bharara:              And of course, that great book is called Truth In Our Times: Inside the fight for press Freedom in the age of alternative facts. First question, do you have a favorite amendment to the Constitution?

David McCraw:             I think I’d go with the first.

Preet Bharara:              Is that because it’s the first one and you never got past it?

David McCraw:             I’ve always wanted to do the quartering of soldiers, but there’s not a lot of litigation around the-

Preet Bharara:              The ninth amendment not your thing?

David McCraw:             No, no, I’m pretty loyal to the first.

Preet Bharara:              Should we be worried about how the country treats the First Amendment?

David McCraw:             I think we should be worried about how the country treats press freedom. I’m not sure it’s really connected to anything legal, I think it’s much more about culture.

Preet Bharara:              You make this point very eloquently, where you talk about what seems to be going on in the United States these days, how there’s a fight taking place in the country for the hearts and minds of the public. You say, in the book ,as you just said now, none of this is about the law exactly. In most ways the law protecting press freedom had never been stronger, you write, and then you say someone that really had me because in a different context in my own book I make a similar point about the limits of the law. People think the law can solve everything, and can’t, even in this area. You say, “The law can do only so much. It can give the press the freedom to matter, but it can’t make the press matter.”

Preet Bharara:              And then even, I think, more convincingly you say, “It doesn’t really matter how much freedom the press has in the society if the press is not believed. A distrusted press is little different from a shackled press.” I found that profound and troubling, can you make us feel better?

David McCraw:             While I was writing the book I saw a poll done by the polling group Ipsos, which found that 26% of the respondents thought that the president should be allowed to close news organizations that misbehave. That is so far from the framers vision, and I’m not talking about criticizing the press, I think that’s vital to any institution. But the idea that we simply are going to close them at the president’s will is chilling.

Preet Bharara:              I think there’s some percentage of people, even more troublingly, who would say if the president wanted the third term, he should get one, notwithstanding the Constitution also. There’s a group of people who think things that are very worrisome, but do you think it’s gotten dramatically worse, somewhat worse, or is it just more being talked about now because you have a president who from time to time, with some frequency, issues barbs against particular journalists by name, and your outlet, the quote/unquote failing New York Times, more specifically?

David McCraw:             I think what’s gotten worse is the silence of the Republicans. I think that there are many, many Republicans who have long held that an important part of conservative philosophy is the importance of private checks on government, most important of those perhaps the press, and they stand silent. That just is contrary to the way the system’s supposed to work. They know better and they should say something. I didn’t learn about free press in the streets of Manhattan, I learned about it in the streets of Monticello Illinois. Parents were conservative veterans, and when you’re growing up in Illinois in 1960s the one thing you know is the Governor goes to jail. Dan walker had to jail, Otto Kerner went to jail, and we were happy that there was a free press that maybe would be able to expose that. That was part of being a conservative, was believing in that.

Preet Bharara:              Do you think these days when the press is under attack from some quarters, outlets like the New York Times, Washington Post, others, maybe all of them, can less afford to make a mistake of fact than ever before?

David McCraw:             That’s right. I talk in the book about the one particular day where Sean Spicer decided to have a private press conference for his fave media outlets. That section opens with us doing a correction that has nothing to do with Trump, had to do with story about drug use on Long Island. We understood we put ourselves in the cross hairs, every time we make a mistake it’s going to be treated as a pattern, as a symbol of something, as a sign of something much, much worse.

Preet Bharara:              Do you find yourself, in your job as the Deputy General Counsel, not on the reporting staff, the one to wag your finger and say, “Don’t make mistakes?” As the mistake issue about the law, as well as about credibility, and do you have a role in both?

David McCraw:             I do feel some obligation to think about our reputational interest. We don’t get sued very often, two libel suits year by people you’ve never heard. When we’re doing a story like Trump’s taxes, a lot of what I’m doing is being a sounding board, thinking about, have we done this fairly? Have we hit all the right points? Have we put it in context? Complicated stories, we want to get them right. Much of that is not because we fear, or I fear, we’re going to get sued, most of that is about, we don’t want to make ourselves a target.

Preet Bharara:              Let’s take a step back and explain the folks what the hell it is you do. You have a legal background and a journalism and background, you are in the General Counsel’s office at the New York Times. Are you someone that reporters don’t like to hear from, or do you like to hear from, do they think that you protect them? What’s your relationship with the reporters, and how you define what your job is?

David McCraw:             My relationship with reporters is really, really good. It’s taken years of doing what I do, and standing up for stories, and standing up for our right to publish difficult stories, to make everybody convinced that that’s my role. People come from other newspapers where, as they say, the legal department is where stories go to die. That’s never been our ethos. I think that my role, as I think about it, is… it has several aspects to it, but one is that I review stories in advance when I’m asked to do so. That’s simply looking to see if there’s any legal vulnerability. I help our reporters get access to information, we bring FOIA suits, we work on getting documents from agencies, state, federal, local. When our reporters have questions about news gathering, which is often, we’re involved in that as well.

Preet Bharara:              Did you like being a journalist?

David McCraw:             I did, but I wasn’t very good at it. No one cried the day I left.

Preet Bharara:              You’re very self-aware. Why weren’t you good at it? I’m sure that’s not true because you write a very good book.

David McCraw:             The writing is never a problem, I was a fairly shy kid when I came out of college and shyness doesn’t really reward itself in journalism.

Preet Bharara:              You said that you only get sued twice year, that’s kind of surprising, I think, to a lot of people. Is that because you do such a great job making sure that there’s no problematic things written? Is it because people are afraid of the deep-pocketed New York Times? Is it because the libel laws are so strong people don’t want to waste their time and effort?

David McCraw:             Combination of all those things, probably the least of them being my skills. I’m fortunate I work in an organization that does deep reporting that still has a lot of editors looking at copy and making decisions. But the law in the United States is not intended to rebalance, it’s in the imbalance. It’s an attempt to free the press, that’s what Justice Brennan decided when he wrote Times versus Sullivan, and eight other justices agreed with him. It was really an invitation to be brave. We have had, since the 1920s, a policy as a company of not paying defendants to settle libel suits. So, if people are looking for a quick buck, they need to look elsewhere, and I think that’s helped as well.

Preet Bharara:              Do you think other papers are sued as seldom as you are?

David McCraw:             I think most big-city newspapers don’t have that big a portfolio. I think plaintiffs know better than to get involved in these. Most lawyers who look at a libel case understand there’s a lot easier ways to make money.

Preet Bharara:              Right. So, you may not be ultimately be sued that often, but there’s a greater number of occasions where somebody, sometimes a person is named Trump, threatens to sue. Explain how this works. You have somebody who’s very mad at something that has been written, or something that’s about to be written and you give a number of examples with respect to Trump, so we can go through… I think there are two or three of those. We’d first speak generally about this, somebody says that’s nonsense, that’s crap, we’re gonna sue you. Do you laugh that off? Do you man the hatches? What’s the response when someone, particularly someone who has a big megaphone, starts saying the New York Times has written something awful, terrible, and libelous?

David McCraw:             If I hear from most lawyers, they are representing clients who I think in a good faith way believe we’ve got something wrong. They are often wrong themselves, but we need to have a conversation, if we’ve got something wrong we owe to our readers to get it right. So, there is, with most attorneys who deal with me, a productive, sometimes frustrating for them, but an open conversation. Tell me what we got wrong, show me the facts. When it’s the Donald Trump’s of the world, the Harvey Weinstein’s of the world, the National Football Leagues of the world, it many times is more political theater than actual legal complaint. They release their letters to us on the Internet and we need respond in kind.

Preet Bharara:              Let’s talk about Donald Trump for a moment.

David McCraw:             Okay.

Preet Bharara:              And first with respect to legal skirmishes that were threatened and didn’t happen, or otherwise occupied your time. There are a couple of interesting stories, one relates to reporting done by the New York Times in connection with a portion of Donald Trump’s tax returns.

David McCraw:             Yes.

Preet Bharara:              The reporter is Susanne Craig, who found a few pages of tax returns. How did you get involved in that, and what was the drama there?

David McCraw:             Sue goes to her mailbox at the Times one day and finds that somebody has sent to her… we don’t know who it is, still don’t to this day… has sent three pages from Donald Trump’s state tax returns from 20 years earlier, 1995. Sue calls me, I’m in San Diego with my son, and states very nonchalantly that she’s received these in the mail, which seem to me a gross understatement given that we’d just spent two years writing about, over and over again, Trump’s promise to deliver his tax returns, and he never did. That really is the beginning of it, is sitting down with the reporters and looking at those three pages. And then, being kind of amazed at their ability to construct a story from that, because let’s be honest, the thought that that may have been a setup was very much in the front of our mind.

Preet Bharara:              Right, so it’s very fraught, so how do you know, and how do you authenticate something like that? I guess the reporters… are they thinking, “Trust us and we rely on our own sleuthing skills,” or, “Hey, Mr. Lawyer, given your background can you make the determination about whether or not this is authentic?”

David McCraw:             These reporters were so good that when they involved me it was really just a quiz of, “Where could we get these in the public record? Who might have them, how about the casino commission in New Jersey?” Every suggestion I came up with they had already exhausted.

Preet Bharara:              For the purpose of getting in through some other source that was more easily authenticated?

David McCraw:             To find it in a public record where something on there, some number on there would conform with something in the public record, that would help us out. Ultimately, David Barstow, our outstanding investigative reporter, went to Florida and found the accountant who had prepared them. He looked at them and he remembered it well because the numbers were so big he had to use a Selectric typewriter to complement his software to make sure that the right numbers were on the form.

Preet Bharara:              Is that the thing that got you over the edge deciding it was okay to publish?

David McCraw:             It seemed to me that we had knocked it down, once the accountant said, “Yeah, those are the tax returns I prepared for Donald Trump in 1995.”

Preet Bharara:              If there have been no accountant and that conversation had not taken place, would we have seen those tax returns?

David McCraw:             I think so, the story would have been framed differently. I think [crosstalk] .

Preet Bharara:              More speculative? How would you have framed it?

David McCraw:             I think that we would’ve put it out there as saying, we had taken the steps. I think we would have been honest with the readers, “Here’s the steps we took, and the White House has either denied that they’re real, or said that they wouldn’t comment.” But it was pretty clear that once we had done that with the accountant and the White House and responded with its usual, “Donald Trump is a great businessman, he paid what he was required to,” that we were on the right track.

Preet Bharara:              Did you have to deal with any shenanigans with Donald Trump and his lawyers with respect to the publication of that story?

David McCraw:             They started writing on the Saturday-

Preet Bharara:              They like to write letters.

David McCraw:             They love letter writing, yeah. It’s one of the good things they do. So yes, they started writing to us on Saturday and saying it was illegal and we had committed a crime, all of which I knew was untrue. It just was not an accurate account of the law. I felt that getting the story up on the web early made sense given how much stirring there was about it. Let’s face it, plaintiffs can often find a soft headed judge who doesn’t really know a lot about the First Amendment, who will try to slow us down.

Preet Bharara:              So in that case, in the lawsuit and the trial, how did that work out?

David McCraw:             It was interesting the next day, Rudy Giuliani goes on and misrepresents what story says, but doesn’t deny it, and he goes from there. The concerning thing for me was to be at a Yankee game the next day and have Sue Craig call me and ask me if I’d read the Washington Post, which I wasn’t doing at the Yankee game.

Preet Bharara:              Because you didn’t want to get punched in the face.

David McCraw:             Exactly right, but given the Yankees were behind five to two at that point, I did to go on my phone look it up. The Washington Post had a column that said that we had risked legal trouble by publishing these. The story didn’t quite say that, but that’s what the headline said. It concerned me that people who lived and died by the First Amendment didn’t have a better understanding of it.

Preet Bharara:              Did you yell at the Washington Post?

David McCraw:             No-

Preet Bharara:              Did you send them a letter?

David McCraw:             No, I don’t yell at the Washington Post. We don’t collude either.

Preet Bharara:              You don’t collude with the Washington Post, do you collude with anyone?

David McCraw:             I try not to, except for the reporters in the newsroom.

Preet Bharara:              So that was a case where there was some sound and fury signifying nothing, and then there’s the other story you tell from early on, from years earlier in the the lifetime of Trump business, which I saw as sort of fascinating. I wondered, both as a lawyer, I have some questions for you about it, but then also just as an observer of this person who has been a conspicuous figure in New York for very, very long time. You and I have both heard of him and known him for a long time, as have virtually all New Yorkers. It gives you a little bit of a sign of what was to come, although nobody expected he would become the president of the United States. That there’s certain things that Donald Trump cannot abide. Some things are fine, and obviously he takes a lot of criticism from a lot of sources, over the years in the tabloids as well, not just New York Times. The thing that he can’t abide is a suggestion that one of his boasts is false. I believe in this case, which I think is very interesting, is he had made the claim, if I have it correct, that he was the largest real estate developer in New York.

David McCraw:             That’s right.

Preet Bharara:              Was that true?

David McCraw:             Wed done a whole story that showed that wasn’t true no matter how you slice it up, whether you count number of units, whether you total up the value of the property, or anything else. Then his lawyers are immediately on the phone to me. As I point out in the book, one of the things they gave me early was, no problem with the hair. You can always talk about Trump’s hair and he’s not gonna worry about that. We don’t want to do a lot of hair stories, by the way.

Preet Bharara:              I haven’t seen that in the international section. They really said that you?

David McCraw:             Yeah, but the value of these buildings, the size of his wealth, very sensitive topic, he even, as you’ll recall he sued Tim O’Brien for his book, Trump Nation, over a single two or three paragraph section that suggested Donald Trump wasn’t as rich as he said he was. That’s really the hot point for him.

Preet Bharara:              That was one of the few suits he brought, mostly he threatens, doesn’t do anything, in this area at least.

David McCraw:             Yeah, this is one of things I don’t understand about him, is that when he’s involved in libel suits he’s more often the defendant. He just lost in the Appellate Division a couple weeks ago, if that case isn’t reversed on appeal by the Court of Appeals he’s gonna be in trial, he’s gonna be making this very same defenses as the failing New York Times. He should be lining up on the other side the ball, he should be very thankful we have libel laws we do.

Preet Bharara:              Do you think that this explains this habit of his, to get upset when some boast of his, or some achievement of his is under assault? That that is the reason why he does certain things, for example? That’s why he got upset about any suggestion that he didn’t probably win the election in his own right? Lots of people like to say he’s in the pocket of the Kremlin, he’s a Russian asset, et cetera. People have their views now been further strengthened or eroded, depending on how they read the Mueller Report. That a lot of this is not about something more than ego, and maybe… some people also suggest the reason he’s not releasing his tax returns is not because he’s trying to hide some intricate financial relationship that might be inappropriate, but that his boasts over time about his wealth are not true. Is that less nefarious?

David McCraw:             I’m not sure it’s less nefarious in a president, but I do think it’s one of the things that motivates. He has said something, he wants to make it stand up, and that bending of the truth has really been the heart of how he has approached the press and how he’s approached governing, really.

Preet Bharara:              How do you think the relationship between the New York Times and Donald Trump has evolved over his presidency? It’s very confusing to me, we’ve had both Floyd Abrams, who’s been an important First Amendment lawyer in this country, one of the most prominent, if not the most prominent, who’s often been outside counsel to the New York Times. We’ve had Maggie Haberman on, who has an odd relationship with the White House, sometimes Trump likes her, sometimes he doesn’t. What is the relationship between New York Times and this White House, and what should the relationship be between a major news outlet and a sitting president?

David McCraw:             He cares very deeply what we say, and he wishes we would say other things. The fact that we are critical of him, I think, eats at him. He is, in some ways, still trying to win the war he was waging as a celebrity before he was a politician. He wants the New York Times to say flattering things about him. What should the relationship be? The relationship should be that our reporters are doing hard stories about the president, the president is answering hard questions, and ultimately the public gets a chance to decide which of those matter to them, and what they want to do about them. We should not be in a battle over whether there is fake news, he knows there’s not fake news, if he really means that to be news that’s fabricated. His attack on the institutions of journalism, on the rule of law, if you will, are really unbecoming.

Preet Bharara:              How to describe the relationship between the New York Times and President Obama, or President Bush for that matter?

David McCraw:             I think that they were nuanced. I think that Obama probably didn’t really care very much for a lot of what we did in terms of news coverage, but I think he is a constitutional scholar, and a more established politician. Understood it was a long game, and that attacking the press was not going to really win him political points nor curry favor with the press. President Bush was a charming fellow from everything I knew, I think in part because of 9/11 he got… I’m not gonna call it a honeymoon, but I think that the country came together, and the focus was very much on how the wars were being conducted and what was going on to fight terrorism. Those stories don’t really lend themselves to partisan narratives.

Preet Bharara:              Have you ever known of a president, either during your time, you’ve been there long time, or before, who was enamored of the coverage in the New York Times?

David McCraw:             No, and I think that’s a good thing.

Preet Bharara:              It doesn’t happen.

David McCraw:             I think that’s a good thing.

Preet Bharara:              Why is that a good thing?

David McCraw:             Because if the press is simply flattering the culture, or flattering the president, or flattering whoever’s in power, I think the press is failing the population at that point.

Preet Bharara:              It’s an odd thing, and maybe you’re gonna say this is exactly why we should think the New York Times is getting it right, that you have a lot of liberals upset at the New York Times for various reasons, and you have conservatives upset about the New York Times, and in particular you have the President upset at the New York Times. Do you say what some lawyers often say, and judges often say after settlement, if everyone walks away unhappy it’s probably the right decision?

David McCraw:             As I say in the book, it may be a sign that you’re doing a really terrible job and hiding from no one. I did have somebody at a book event in Cambridge want to know why we were so mean to Putin, that was the first time I’d ever had that question. For the most part I think that when politicians are unhappy with us it’s probably a pretty good sign that we’re doing what the Constitution envisions.

Preet Bharara:              You have a fascinating discussion in the book that I refer to in this very well written review that you have chosen not to read… an aside. I found this fascinating, when you talk about journalistic bias. This is a constant debate the people have, people of good faith and bad faith both. Are journals biased, are they all liberals… particularly at the New York Times, are they all liberals? Do they hate Republicans? And people have these disputes and debates about the makeup of college campuses also, but we’re sticking with the press here. You acknowledge a certain lean on the part of journalists, and you say in your book, “Many journalists are biased, just not in the way that most people think about.” You read on, and you say, “Essentially, reporters tend to champion the underdog and it’s that kind of worldview that causes them to have an approach to their coverage.” And then you write, “The easy wrap is that most reporters lean liberal, true, and that dictates how they cover a conservative like Trump, false. They believe, all other things being equal, that the little guy is being screwed. The reportorial default is to think that most regulations are good, the rich and connected don’t need more money or power. The biases is not a left or right thing.” What is it then?

David McCraw:             It is a worldview that most journalists bring to their work that they want to change the world. You win prizes by causing change, you win prizes for standing up to corrupt and powerful people, you win prizes for championing the caus of the underdog. Does that mean that certain kind of stories get written and others kind of stories are less likely to get written? Absolutely, but that’s different from having bias in stories. You know this well as a lawyer, you can have totally repulsive clients and when you going into court you put that aside, that’s what is to be a professional. When I was a young associate I was… this is kind of scary… second seat in a criminal trial in federal court. Our client was repulsive, he was awful. He was awful to us, he’d done awful things, and when we stood in front of the judge that just didn’t matter.

David McCraw:             It’s the same way with journalists, they need to… and I think the good ones all do this, they report against thier sources. Somebody tells them something, they go and try to prove wrong. When I was doing that in the criminal case I mentioned, we were doing it without pay and I remember coming back to the firm and getting a lot of questions about why we would be representing somebody who is charged with arranging a murder. I didn’t realize that it had to be everybody in America against one, I thought it was okay to have somebody stand up and say the government has to make their case.

Preet Bharara:              Did you get in any trouble with your colleagues at the Times for this analysis?

David McCraw:             I have not, but boy, people really latch onto that. I write about 200 pages about law and one page about bias.

Preet Bharara:              Because you say, look, most reporters lean liberal, true. You gave some grist to some folks. When you most reporters, what’s your percentage you’re going to say there?

David McCraw:             Of those who actually bother to be recognized by party, your probably talking 70, 80%.

Preet Bharara:              Wow.

David McCraw:             I think there’s probably a lot who simply say a pox on both your houses and don’t really get involved.

Preet Bharara:              Do you know of any reporters who are truly apolitical?

David McCraw:             Apolitical in the sense of caring about the horse race rather than who wins, a lot.

Preet Bharara:              Right.

David McCraw:             It’s one of things that goes on in coverage, right? That the person who’s behind suddenly is getting all kinds of favorable attention until that person’s in front and then the pendulum swings back.

Preet Bharara:              Do you worry about the reporters at the Times who now publish not only in the print and the digital versions, but also this thing called social media. Some of them, the most prominent ones, often have opinions that they put forward… I think it’s fair to call them opinions, although there’s a debate about what’s opinion and what’s not… on twitter. Do you, as the lawyer for the Times, worry about that, or scold people.

David McCraw:             I don’t. I certainly don’t scold people. The social media guidelines that we put out while I was writing the book never crossed my desk. Other people were involved with them, more from an employment and labor standpoint. I’m not the fairness cop, I may be a fact cop, but I’m not a fairness cop. I like fairness, I think we should be fair, I think if we ever get sued I’d rather defend a fair story than the story that would be read by a jury to be leaning one way or the other. But, ultimately the law is about getting it right and doing everything possible to try to get it right.

Preet Bharara:              One of the criticisms that’s been leveled at the New York Times and other periodicals, news outlets as well, on television and everywhere else, when do you call something a lie? And, when you call it a lie from the perspective of what good reporting is, and what meaningful analysis is, versus what legal considerations there are?

David McCraw:             Yeah, in New York law, lie is more often than not seen as an opinion because you’re speculating on somebody’s state of mind motive. Now, Mr. Trump actually is a defendant for having called somebody a liar, and the judge made a very careful analysis that he was in there, he was in the room, he saw it. And so, if he saying she’s a liar he’s speaking from facts and as you know only factual statements can be the subject of libel cases, or at least successful ones. I think it’s distracting to a certain extent, I think people get hung up on, “Why didn’t you call it a lie? Why didn’t you label it as such?” Almost inevitably whenever I talk about the book people will raise this, I fear that it distracts. Let’s say what we have come to understand the truth to be, what the evidence shows. Let’s say what the other person whether that’s the president or anybody else. Let the reader decide, “Is that a mistake?”

Preet Bharara:              Why do you think it causes people such agita when they think something is a lie and a news account will sort of repeat it and use what those folks, those critics will say are softer words, like misleading, or without evidence, or something else? Why you think people like to see a lie called out as a lie?

David McCraw:             In part it’s because they don’t trust thier fellow citizens, in part they believe that their fellow citizens are going to be misled unless somebody tells them what to think about it. I believe, because I think I have to believe as a First Amendment guy, that the public gets it right more often than not, and I think if you present the facts and someone wants to conclude it’s a lie, they are going to see that for what it is.

Preet Bharara:              Although there are times when the New York Times and others will use what you called the L word. I think you describe in the book, “The L word made it’s way our coverage with two stories is September 2016, both about Trump’s decision to stop suggesting that Obama was not born in the US.” What was the case there?

David McCraw:             He had prided himself on being a birther and insisting on seeing the birth certificate, he finally said that he was convinced that Obama had been born in the United States and editors decided that we could refer to his prior statement as lies. That was the beginning of that. We we said at the time that we would use the same standard for others, and I think we have, but I think we’ve not said lie that often since.

Preet Bharara:              Is there some sort of applicable guideline as to… I understood your point about not having to say lie, I’m not sure I agree with it, but I understand the point. But if you use it sometimes and other times and that is going to beg the question, what’s the standard?

David McCraw:             Right, right. That’s an editorial decision, so I’m glad as a lawyer I don’t [crosstalk] it. But, I I think it would be the same as any reporting undertaking you did, is there proof that someone knew X and said Y?

Preet Bharara:              We talked about some experiences you’ve had with Trump private citizen and Trump as president, I want to talk about this thing that, as you describe in the book, sort of went viral and made you better known than you had expected to be. That was with respect to a story, or stories, that the New York Times is running that addressed Donald Trump’s treatment of a couple of women. What was the story, first?

David McCraw:             The story was a report on two women who said they’d been groped by Mr. Trump years earlier. The timing of it’s important, the Access Hollywood tape had come out a few days before, Mr. Trump had addressed the allegations of mistreatment of women at the debate on Sunday night. We do this story the following Tuesday into Wednesday, it appears on the Internet on Tuesday, shows up on Wednesday. I remember reading it in advance publication on the subway as I was going down to teach my class at NYU, and I thought it did what journalism should do, it presented credible accounts of misconduct. But at the same time, it also explained that the women had not come forward earlier and if someone wanted to raise doubts about those counts they had all the information in front of them.

Preet Bharara:              How was that received by Trump folks?

David McCraw:             Not well.

Preet Bharara:              Not well?

David McCraw:             When Mr. Trump’s called for comment he says, without relying on code like when he talks with Michael Cohen, he says that we’re going to sue you if you publish that story. That’s followed by a drumbeat of announcement from his campaign the day the story appears that they’re going to sue us, and continues well into the evening. I get a call from our PR person that 8 o’clock saying she’d heard that they were about to file this complaint I had no idea where they would do that. Bronx criminal court? I don’t know where they were going to find a court to do this filing, but it was shortly after midnight that the letter from the Kasowitz firm shows up, essentially saying that we’ll be sued unless we retract the story.

Preet Bharara:              And then you decided the letter should be responded to.

David McCraw:             I-

Preet Bharara:              Every good letter deserves a response. You’re a very good pen pal for the New York Times.

David McCraw:             Exactly right. It was leading the morning newscast that this letter been sent, it was all over cable television, Twitter, you name it. There were TV trucks outside the building. Even though I thought that it was an empty threat… I’ll put a footnote on that, I thought it was an empty threat while the campaign was ongoing, but if Trump lost, maybe he would have time to sue us. I felt we needed to respond we needed to respond publicly.

Preet Bharara:              So, you wrote a letter and it was kind of colorful, but it, as far as I’m concerned, correctly relates the libel standard. Let’s recite that for… You have in your letter a clear statement of the law of libel where you say in an un-provocative way “The essence of a libel claim, of course, is that a statement lowers the good reputation of another in the eyes of his community.” Fair statement, noncontroversial statement, non-provocative statement. Right?

David McCraw:             Correct.

Preet Bharara:              But that makes clear that what is relevant to a libel claim is what the actual reputation of that person is in the community. So, if it’s a good reputation and the claim lowers it, then maybe you have a viable libel claim. On the other hand if, with respect to the matter at hand, the person has an awful reputation, well then, how can harm be done?

David McCraw:             That’s right.

Preet Bharara:              Is that essentially right?

David McCraw:             That’s exactly right.

Preet Bharara:              And that’s all fair.

David McCraw:             So far.

Preet Bharara:              And you say, “The statement must lower the good reputation of another in the eyes of the community.” And you point out, fairly, “Mr. Trump has bragged about his nonconsensual sexual touching of women. He has bragged about intruding on naked beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss his own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article as had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.” Damn.

David McCraw:             That’s libel law 101.

Preet Bharara:              So, why was it such a big deal if you’re just restating libel law 101?

David McCraw:             I think that there were people who thought it was too partisan. There were journalists, not at our organization, but elsewhere, who thought that it was an ad hominem attack. I felt that I was stating the law. I think in many ways the last sentence of the letter, where it says, “If you feel we’ve got this wrong, sue us” was probably more provocative in many ways, at least from people who thought it was time somebody had said that to him.

Preet Bharara:              Did anybody edit the letter?

David McCraw:             I sat with three of my colleagues from legal, we spent a lot of time talking about the paragraph you just read and the ending, and in the and we pretty much agreed that the draft I had was the best we were going to do and we should go with it. But nobody in management was involved.

Preet Bharara:              What was their reaction to letter?

David McCraw:             I account in the book about how our CEO, Mark Thompson, suddenly was visible to me… I had a glass office the time and I saw him coming towards me right after the letter had been posted. He had the letter in one hand and had an odd look on his face. I had for a moment this idea that perhaps we shouldn’t have gone quite so far without senior management seeing the letter, but he came into my office… He’s an Englishman, and he said, “This is a brilliant letter, but I’ll never understand why you Americans capitalize after a colon.” I felt very relieved at that point.

Preet Bharara:              And vindicated.

David McCraw:             And vindicated, and I don’t use the capital after the colon anymore.

Preet Bharara:              Do you see other kind of letter of that nature in your future?

David McCraw:             Well, I wrote the book so the letter would not be in the first sentence of my obituary. I have some cover now if I do another letter.

Preet Bharara:              There there been other controversial issues and high-stakes issues you’ve had to deal with, things we read about in the paper. Including stories that the New York Times was going to publish about Harvey Weinstein, and allegations against him which became somewhat thorny for the New York Times because one of the lawyers for Harvey Weinstein was David Boies. Well known lawyer who also had some involvement as a lawyer for the New York Times. I did appreciate fully the degree to which that was thorny for a person like you, behind the scenes.

David McCraw:             Yeah. So, the Boies firm had represented the New York Times in commercial matters for 20 years, actually it started well before my time. It wasn’t a close relationship, it was an occasional piece of work here, an occasional piece of work there. At the same time David and his partners represent some of the most controversial people on the planet, and so we would receive letters from his firm complaining about our coverage of, say, the Prime Minister of Malaysia, Chinese businessmen, and others. We dealt with those in the normal course, but it was always a bit of a balancing act. My fellow media lawyers at other news organizations thought we were crazy that his firm was instigating suites or threatening them. What were we doing spending time with them? But it had become particularly pointed during the Weinstein coverage because we were in the middle of a big libel suit where one of David’s partners… Very, very good lawyer Pete Skinner, who used work in your office, was representing us and was doing a terrific job, in fact won the case. It was in the midst of that case that we discovered that David was not only representing Harvey Weinstein, he’d signed a contract for the Black Cube, a rather sketchy investigative firm that was, among other things, following our reporters.

Preet Bharara:              To try to get what?

David McCraw:             Trying to kill the story. It was in their contract. The Black Cube contract provided a bonus if Black Cube was able to, in whatever way they do their magic, stop the New York Times from publishing about Harvey Weinstein, and that crossed a line.

Preet Bharara:              Had you ever come across a situation where a lawyer had retained a service like that to follow reporters and try to get story killed in that way?

David McCraw:             Never. They would tell me about it-

Preet Bharara:              Well, but you’ve not been there a minute, you’ve been there a long time.

David McCraw:             Right, right.

Preet Bharara:              And you’ve seen a lot of things.

David McCraw:             Right, and look civil litigants, including the New York Times, will from time to time hire investigators, that’s what we need to do some times to find out about facts that we need to use in litigation. But I’d never seen a contract like this.

Preet Bharara:              How is this different from the garden-variety hiring of an investigator?

David McCraw:             Investigator is going out and looking up facts, usually in public records, or perhaps going out and interviewing people. The idea that investigator was being hired to thwart our main business by somebody who is at a firm that was receiving a lot of money from us was simply unconscionable to me.

Preet Bharara:              And you said crossed a line?

David McCraw:             It crossed a line, I don’t think crossed a legal line, we had signed a waiver, which we do when we hire big firms, that they can have other clients. But, I just thought as a matter of the way you treat people, it was wrong.

Preet Bharara:              Here’s the other story that caught my eye on the op-ed page, this person who purported to work in the Trump administration… I can’t remove the phrase you used, but a high-level official-

David McCraw:             Yup.

Preet Bharara:              Set down in an op-ed published by your paper all sorts of terrible things about how the White House is being run. It was kind of in the vein of whistleblowing, which some people appreciated, others did not because that person did not put his or her name to the piece. And there ensued a great frenzy among the chattering class and the not chattering class, I guess all the classes, about who that person was. In part, to try to make a determination about the credibility of the accusation. Is it someone really on the outs, is it a high-level official, does that mean someone works three levels away from the top of an agency. Or, speculation was maybe it was someone very, very close to the president. What was surprising to me is… Obviously, before you decide to publish that you got to bring in the lawyer. Right? That’s you. And you read the document?

David McCraw:             Yeah.

Preet Bharara:              You made the determination that it was okay to publish, right? All fair, I’m with you so far.

David McCraw:             Okay.

Preet Bharara:              And then, you had the opportunity as the lawyer to learn the identity of anonymous, and so who’d you learn it to be?

David McCraw:             I chose not to know.

Preet Bharara:              What is that?

David McCraw:             I knew I would be asked for the rest of my life.

Preet Bharara:              I almost wrote you a crappy review on that basis alone. Because, what kind of a person are you? In-curious person… I’m joking, obviously… half joking. You were literally given, I think, a sealed envelope.

David McCraw:             Asked whether I wanted to see what was in it, yeah.

Preet Bharara:              I mean, some people would have just peeked even if they hadn’t been asked, but you said, “No I’d rather not.” Please explain yourself to the American people.

David McCraw:             As as a human being I really wanted to know, as a lawyer I didn’t feel I needed to.

Preet Bharara:              I appreciate that you are drawing the distinction that is often made, but never so honestly as you just did, that a lawyer and a human being are not the same thing.

David McCraw:             Yeah, yeah. In the way we act we sometimes go in different directions, don’t we?

Preet Bharara:              Do you regret… because I regret that decision for you.

David McCraw:             Well, I don’t. It gives me a chance to speculate with everybody in America, it makes me closer to everyone.

Preet Bharara:              Okay, that’s very lame. Here’s my other thing, were you concerned that if you learned the identity and you came on this podcast, I would’ve been able to get it out of you?

David McCraw:             You probably would have, yeah, you have your method.

Preet Bharara:              Then I think I forgive your decision.

David McCraw:             Okay.

Preet Bharara:              I think that makes a lot more sense now. Do you think it’s more dangerous now to be a reporter in the world than it has been in the past?

David McCraw:             It is, it is. When I first started at the New York Times in 2002 it was not uncommon to hear that some reporter had been rounded up by some low level militant someplace and by the time we figured out who to call, what to do, the person had been released. In those days, before social media, people involved in conflict needed the New York Times, the Washington Post, CNN, BBC, to get their message out. Didn’t matter whether you liked them, or not. We were part of that conduit of information that they wanted to get out to the world. Now they have social media, they don’t need reporters and reporters become easy targets for them like social workers and aid workers, to be financial propositions if they can seize them.

Preet Bharara:              Do you think our libel laws will remain as they are for the foreseeable future?

David McCraw:             You know, having read my book twice, thank you, is that it is a testament to unfounded optimism, so I’m going to say yes, I think they’re going to stay the same.

Preet Bharara:              I ask because the President likes to talk about, and other people like to talk about and say we should loosen them up. As you pointed out, the President’s on the wrong side of that more often than he’s on the right side of that. But, you know, when the President of the United States says maybe we should loosen these things up and make it easier to sue, and you have a percentage of people that you recited earlier, who say the president, at his or her whim, should be able to shut down a news outlet. Ordinary people, who are not First Amendment scholars, tend to worry, why would it be so hard for something like that to be accomplished?

David McCraw:             It would require a couple of things at the President doesn’t have a lot of control over, one is state law, because libel is still driven by state law. Second, the interpretation the Constitution, which he does have an effect on by who he appoints to the Supreme Court. To a certain extent the district judges that he’s appointing will have a chance to weigh in on libel cases. I actually think the conservatives that are being appointed tend to be libertarian on this issue, that they’re likely to stand behind a broad view of the First Amendment. I also think that most of them, not all of them, believe that decided cases should remain decided cases.

Preet Bharara:              Right, but what about Clarence Thomas?

David McCraw:             Clarence Thomas, writes a concurrence a few weeks ago saying that Times versus Sullivan was wrongly decided. I look at that glass as one ninth full, nobody signed onto that with him. I just don’t see a lot of people looking out at the American landscape today saying, “You know, the one thing that America really needs is more rich people suing and winning lots of money when they have libel claims.” I just don’t see that as a cause. In the long run I think people need to keep in mind Times versus Sullivan worked. It was designed to stop powerful people from using libel suits to silence, and it has worked.

Preet Bharara:              So, just explain to people again, New York Times versus Sullivan stands for the proposition that…

David McCraw:             A public official, later expanded to public figure, who sues for libel has to prove more than the story was wrong. That person also has to prove that the story was printed with reckless disregard of the truth, and the best way to think about that is the publisher knew it was false and published it anyway. When that decision came down in 1964 it was designed to stop southern powerbrokers from using the libel law to silence the northern press. The northern press was coming in to Alabama, and Mississippi, and elsewhere, and talking about was really going on the ground, civil rights movement. They were using libel suits to try to silence the New York Times, CBS ,and everybody else, and the Supreme Court had heard enough.

Preet Bharara:              Were you surprised by Clarence Thomas’s opinion?

David McCraw:             Oh, I was surprised that he decided to issue it at this point, it seemed unrelated to anything that going on before the court, they were denying cert in a case, there was no need to say-

Preet Bharara:              Do you think he was addressing what’s going on in the country?

David McCraw:             I think to some extent he was. I think that-

Preet Bharara:              This is very odd.

David McCraw:             It is odd, but that criticism has been around for really long time. Times versus Sullivan is a revolutionary decision, which took on a big lift, which was to find state cause of action, a torte cause of action, a libel cause of action, had a constitutional dimension. I thought was kind of brilliant but there’s no question that it broke from everything that had come before, and that bothers Thomas.

Preet Bharara:              But now it’s been around for a long time.

David McCraw:             It has been around for a long time, and worked.

Preet Bharara:              Do you think there’s anything in the law, currently as relates to news gathering, or the First Amendment, that should be changed?

David McCraw:             Oh yeah.

Preet Bharara:              Oh gosh, I wasn’t expecting that. I thought you thought stuff was pretty good? Do you have a long list?

David McCraw:             Well, there needs to be much greater protection of reporters to keep sources confidential, that would be number one. I think that-

Preet Bharara:              That’s very hard to do in Congress, I worked in the Senate, I worked on the Free Flow of Information Act version, whatever the version was, for three or four year, that Senator Specter and Senator Schumer would introduce. There are many sticking points, one of them… maybe we can talk about this for just a second, one of which I found was, assuming you’re talking but the universe of people who were acting in good faith and did believe in free press, and did believe in protection, it was impossible to determine in a way that was definitionally okay how to define a journalist who gets the protection.

David McCraw:             Correct.

Preet Bharara:              You could formulate a definition that would leave out certain kinds of people who maybe operated online, or in their basement, who should be included, and other ways in which you would include things based on your definition that should not be included. You kind of knew what when you saw it, but the definition of a journalist was very, very hard to come by. How do you overcome that?

David McCraw:             39 states found a way. All the states, 39 states I believe, at last count, have some form shield law. They’ve had to address that issue. You’re never going to get a complete definition the laws, it’s like every other part of the law, judges are going to have to interpret it. I thought that there was a way to get there, I think the politics behind it made it very difficult because bloggers and others who felt they were being excluded were heard from, and that, I think, caused the thing to fall apart. On reform front, FOIA needs reform. Free of Information law needs reform from top to bottom, and as a lobbyist told me not that long ago, you will get FOIA reform when you don’t call it FOIA reform. Call it something else and maybe you’ll get it through Congress.

Preet Bharara:              How important is the Freedom of Information Act, even in the current form that is in, and obviously my office litigated on the other side of a lot of those FOIA cases, for good or ill. How important is that the news gathering?

David McCraw:             It’s important news gathering culturally. A lot of what is turned over routinely now is turned over routinely because FOIA would make somebody do that if that government official was sued. So, culturally it’s important, there are times when it’s important it to complement reporting but it’s never a standalone tool, I think it always should be seen as just one tool that a reporter uses. It would be better if it wasn’t so laborious, it would be better if more things were public, but that would require Congress to do what it’s chosen not to do, which is to give it real teeth.

Preet Bharara:              Do you have advice to people about how they should consume the news and how they should determine what they’re reading is true and accurate?

David McCraw:             Yeah, I do. They should read things they disagree with as a regular diet. The Internet is so incredible because it has given us access to so much. I always compare it to the worst Las Vegas buffet, piles of food every place-

Preet Bharara:              Those are all good, all the buffets in Vegas are good.

David McCraw:             People have all this choice and instead they go and hover around the dessert table and eat what they want. That’s just not really good as a diet, it’s not really good as a way to becoming an informed citizen.

Preet Bharara:              Are you ultimately… I know the answer to this because I read the book, twice. Are you ultimately optimistic or pessimistic about this issue of people’s care for the truth?

David McCraw:             I have to be optimistic, if you’re not optimistic you can’t really believe in the First Amendment. If you don’t believe ultimately that given enough time, and given enough information, that people are going to make the right choice, then you’re talking about an entirely different system government than the one we have.

Preet Bharara:              David McCraw, thank you so much for being on the show. The book, once again, Truth in Our Times: Inside the fight for press freedom in the age of alternative facts. Very important book, thanks for writing it and thanks for being with us.

David McCraw:             Thank you.

Preet Bharara:              The conversation continues for members of the CAFE Insider community. In this special bonus David McCraw tells me how he dealt with a kidnapped reporter, his feelings of the Julian Assange indictment, and why he’s a raving moderate. To hear that and to get a weekly CAFE Insider podcast, subscribe today at cafe.com/insider.

Preet Bharara:              So, we talk a lot on this show about the power of policy and the power that elected officials have, but I also like to point out all the times that individual citizens, private citizens, ordinary people, sometimes famous, sometimes not, can also make a difference, and can also be influential, and can also cause change. And, this week we heard from the voice that I miss a lot because he’s not on television on regular basis anymore, talking about the issue of compensation and help for the many first responders who came to the aid of suffering people at Ground Zero on September 11, 2001. It turns out that the 9/11 victim compensation fund may be dwindling to such a degree that payments to first responders and others might go down. Rather than hear me talk about it, I can do no better than the words spoken in a House Judiciary Subcommittee hearing, before the subcommittee on civil rights and civil liberties by one of my favorite people and comedians, Jon Stewart. Here’s Jon Stewart addressing a nearly empty panel of that subcommittee in Washington this week.

Jon Stewart:                  Sick and dying, they brought themselves down here speak to no one. Shameful. It’s an embarrassment to the country and it is stain on this institution. You should be ashamed of yourselves for those that aren’t here, but you won’t be because accountability doesn’t appear to be something that occurs in this chamber. Your indifference cost these men and women their most valuable commodity, time. It’s the one thing they’re running out of. It should be flipped, this hearing should be flipped. These men and women should be up on that stage and Congress should be down here answering their questions as to why this is so damn hard.

Preet Bharara:              Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, David McCraw. Tweet your questions @PreetBharara with #askpreet. Or you can call 669-247-7338 and leave me a message, that’s 669-24-PREET, or you can send an email to staytuned@cafe.com. If you like what we do, rate and review the show on Apple podcasts. Your reviews help new listeners find the show. Stay Tuned is presented by CAFE. The Executive Producer is Tamara Sepper , the Senior Producer is Aaron Dalton, and the CAFE team is Carla Pierini , Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman . Our music is by Andrew Doss. I’m Preet Bharara, Stay Tuned.

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