The Media Distortion of Michael Flynn – Truth Suffers Another Blow
Yet again our most revered news organizations let us down. We must read between, over and above their written lines to try to get to the truth. Reporters no longer take photographs of what they see, or simply record and report what they hear. Instead, they paint pictures with broad brushes, using shades and color to reveal their personal portraits. They weave a web instead of knitting a stitch. The “stories” of former National Security Adviser Michael Flynn, and of “contacts” between persons involved with the Trump administration and Russia, are just the latest sorry watercolors. The media distortion of Michael Flynn is another sad tale of truth taking a shot to the jaw.
We take a look in this piece at the reporting of the Flynn “story.” We save for another piece the ongoing reporting addressing Russian “connections” to the Trump administration.
The Media Distortion of Michael Flynn and the Russians – The Washington Post Story
Michael Flynn
Michael Flynn may or may not have been an excellent adviser to the President. We will now never know, and neither will the President. Perhaps he should have been fired because he misled the President and Vice President regarding his contact with the Russian ambassador. That was for the President to decide. But the press colored and shaded a dark and ominous portrait of Mr. Flynn so quickly, and incompletely, that Mr. Flynn had to depart. And it is all the result of a value judgment by the painters of these portraits, and their editors and publishers. If you aren’t troubled by all of this, then you should be. It’s not a matter of which side wins the skirmish. The country loses the war.
On February 7, 2017, the Washington Post published the story “National Security Adviser Flynn Discussed Sanctions with Russian Ambassador, Despite Denials, Officials Say.” The story immediately went front-and-center across the national press. The Post began its story with this:
National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.
Stopping here, the heart of the report is that Mr. Flynn made comments in public regarding contacts with the Russian ambassador that weren’t true. Now that’s newsworthy, so there’s certainly no problem with that part of the Post’s account.
How Journalists Paint Their Picture – The Media Distortion of Michael Flynn
In the second paragraph of the Post’s story our journalists immediately paint a more sinister image of Mr. Flynn:
Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December [emphasis added] . . .
The air of illegality is now the hook to the story, with vague references to “some senior U.S. officials” suggesting the illegality. Said another way, the reporters made these “senior U.S. officials” the judges of what is inappropriate and potentially illegal.
Inappropriate or Illegal Behavior? The Post Gives Us No Guidance, and Lets the Paint of the Sinister Image Dry
Now there are a couple of key points here. First, was Mr. Flynn’s behavior “inappropriate” or “potentially illegal?” The Post reported no standard to judge “inappropriateness” and did not otherwise explore this critical claim. Indeed, what does that term mean in this context? Who judges what is appropriate, or not? Without a legal standard, “appropriateness” is simply a value judgment. The value judgment here was then made by the unnamed sources.
Was Flynn’s Behavior “Potentially” Illegal? That’s Impossible, and the Post Should Have Said So.
Further, and more critically, the phrase “potentially illegal”, apparently parroted by the Post reporters, is incorrect. As a result, it is inflammatory. Let’s drill down a little deeper on this point.
For one, the Post journalists should know that prior conduct cannot be “potentially illegal.” The conduct was either illegal at the time it occurred, or it was legal. The Constitution prohibits Congress from enacting ex post facto laws.1 Therefore, conduct cannot be “potentially illegal.”
We presume the Post reporters were attempting to accurately report what they were told by their informants. If so, they should have immediately realized that the informants use of the phrase “potentially illegal” meant that the informants themselves did not know whether Flynn’s conduct was illegal. The Post reporters should have directly pointed that out in their article. But they chose not to. They allowed the imprimatur of illegality to grow. But under the presented circumstances why the Post would even suggest potential illegality in the second paragraph of their story is a mystery. It is irresponsible.
Was Flynn’s Behavior Illegal?
In fairness, somewhere near paragraph 13 of the story the Post reported that “officials in the Obama administration and intelligence agencies” were considering whether Flynn’s conduct was illegal. The Post reporters explained that those officials (who implicitly included lawyers, as legal judgments occurred) were considering whether
Flynn had violated a law against unauthorized citizens interfering in U.S. disputes with foreign governments. Those [Obama administration and intelligence agencies] officials were already alarmed by what they saw as a Russian assault on the U.S. election. U.S. officials said that seeking to build such a case against Flynn would be daunting. The law against U.S. citizens interfering in foreign diplomacy, known as the Logan Act, stems from a 1799 statute that has never been prosecuted. As a result, there is no case history to help guide authorities on when to proceed or how to secure a conviction.
That’s it. No more analysis on the key part of the story. Was the conduct illegal? On the issue of legality, the Post reporters relied only on these unnamed “U.S. officials.” They relied on their source for the story. They could have, and should have, done much more.
The Post Failed to Get an Understanding of the Law – Flynn’s Behavior was Legal.
The Post reporters, for example, could have turned to Harvard’s constitutional law professor Noah Feldman, who would have told them this about the 1799 Logan Act:
Harvard Professor Noah Feldman
It is probably unconstitutional. . . . [T]he law is too vague for enforcement. And it violates free-speech standards that are the law today but went unrecognized by the John Adams Administration [in 1799].
The text of the law says that a citizen is guilty of a crime if without authority he “directly or indirectly . . . carries on any correspondence or intercourse with any foreign government . . . with intent to influence [it] . . . in relation to any disputes or controversies with the U.S. or to defeat measures of the U.S.”. . . The law doesn’t define “disputes or controversies” between the foreign country and the U.S., nor does it say what it means to “defeat the measures of the U.S.” That’s enough to make the statute unconstitutionally vague.
The uncertainty about whether Flynn’s act would have violated the law is a case in point: the very vagueness of the law would make its application unconstitutional.
First Amendment issues also apply:
The Logan Act would almost certainly violate today’s understanding of the First Amendment. It’s a direct prohibition on speech, so it would have to satisfy strict scrutiny, the highest level of judicial review. That means the law would have to serve a compelling government interest and adopt the least restrictive means to achieving that goal.
[C]an there really be a compelling government interest in American citizens not speaking to foreign governments about matters connected to U.S. policy, which could include anything from oil fields to intellectual property? That seems unlikely.
Professor Feldman would have also pointed out this:
Exactly one person has been indicted for violating the law. . . in 1803. . . . It appears, based on research . . . that no one has been prosecuted under the law since.
The Post Violated Their Trust – They Should Have Understood the Law on Which they Reported
The primary responsibility of the Post reporters was to provide readers with unedited facts. They reported an illegality alleged by their sources. They had an absolute obligation to understand the law surrounding the claimed illegality. And not simply by gaining that understanding from the very sources themselves. They had a duty to seek that understanding from among many of the highly competent lawyers and professors available. There are many of them, and they publish regularly. The Post reporters cannot be excused for failing to know the law here.
With No Illegality, The Post Failed to Explore Possible Biases in Their Sources.
Beyond this, the Post reporters did a significant disservice to the public. They failed to explore the motives and integrity of the “senior U.S. officials” who provided the leaks. The officials apparently included Obama administration employees and intelligence officials who were not, as we now understand, exposing illegal conduct.
If the reporters had understood the likelihood that there was no illegality, would they have shown more caution in painting their picture? Would they have further explored whether “intelligence officials,” who lacked proof of illegality, had a motive in leaking information and/or opinions to the Post? Did those sources have motives, political or otherwise, to suggest “inappropriate and potentially illegal” conduct? That might be a story in itself.
We respect the journalistic necessity of protecting sources. But we don’t respect the lack of critical thinking by reporters, who appear rushed to get a story and to paint their picture.
Is it a far leap to report that these sources may have their own motives for embarrassing the Trump administration? Perhaps it is even likely, given that these sources violated federal law in making these leaks. But the Post didn’t question the leakers’ motive. They didn’t report on motive at all. Instead, the Post reported on why the Logan Act might not, or should not, be enforced. And they spent a great deal of time towards the end of the article crafting a mosaic that implies a quid-pro-quo between the Trump administration and the Russians.
Trump’s Team Did No Wrong in Contacting the Russians Before His Inauguration
We express no view on the right course for U.S. policy towards Russia. And it is absolutely correct that a current president is the sole prosecutor of U.S. foreign policy. But at the same time it is appropriate for the foreign policy team of a President-elect to contact foreign governments for reasons too numerous to illustrate, including to express future intentions. The President-elect simply cannot implement any such intentions until he takes the oath of office.
Media Distortion of Michael Flynn Extends Beyond the Washington Post
The Washington Post was not alone in the Mike Flynn story. Try this piece from the New York Times: “Flynn is Said to Have Talked to Russians About Sanctions Before Trump Took Office.” They also reported that “accounts of the conversations [between Flynn and the Russian ambassador] violated a law against private citizens’ engaging in diplomacy. . .” The same types of disappointing assumptions and mistakes were made in the Times.
Disparate Treatment: The Media Portrayal Led to Flynn’s Demise – But No Such Thing for James Clapper
So let’s review what happened here. Former Obama administration officials, and current intelligence officials who apparently don’t like Mike Flynn, contact reporters with a story. They may have it in for Flynn. They may want to get at President Trump. Their motives are not questioned. They suggest that Mr. Flynn did something “inappropriate and potentially illegal.” They apparently leak information of a sort to the reporters, who accept it. The reporters don’t independently verify whether the alleged conduct is illegal. It turns out the conduct is not illegal. The media distortion of Michael Flynn results.
Recall that James Clapper, President Obama’s national security director, lied under oath to Congress about the illegal domestic security program. He committed a felony, yet President Obama retained him. Mr. Flynn, from what we know as of today, did not break any law. Indeed, the FBI has apparently concluded that it will not file criminal charges against him. Mr. Flynn lied to the Vice President. But, according to CNN, he did not lie to the FBI. And he is gone.
We are all in favor of whistle-blowing when a public official breaks the law. But if there is no legitimate reason to blow that whistle, then the claimed whistle-blowers should be in a heap of trouble. They are the ones who do us a disservice when there are no facts to support them. Not to mention their disloyalty to the President and to the Constitution. And the reporters harm us even more when they simply report what they are told without more. In the end, the Post told the “story” of the whistle-blower. And because of the resulting political embarrassment, Mr. Flynn must go.
The Media’s Distortion of Michael Flynn Was An Inaccurate Picture- It Hurt Us All
There was a time when we esteemed journalists. We saw them as dedicated to providing us with a comprehensive journal, a report, of the day’s activities. Theirs was to report the facts. We expected journalistic integrity. We expected fairness and impartiality. Neutrality was a prerequisite for honest reporting. But the media distortion of Michael Flynn is yet the latest example that the media we once knew is drifting away.
Integrity is gone. Conservative journalists paint with color and shade when there is Democratic blood in the water. Liberal journalists do the same when the blood in the water is Republican. This is, of course, precisely the problem. It is no small reason why we are at each others throats. It helps explain the loss of civility, and our lost sense of community.
Journalists today start from a side, and they paint towards that end-point. There was a time, once, when this was the sole province of historians. It was for historians to take facts and imbue their narratives with moral perspectives and implications. It was for historians to tell the story of how we came to be who we are, and why. Historians brought their sense of significance to those facts. They brought their sense of morality to their perspective as to what mattered, and then explained why. We knew them not to be neutral. And we expected them not to be neutral.
We can not afford the media distortion of Michael Flynn and others. Our chroniclers no longer chronicle, but claim that they do. They paint while telling us they photograph. They weave instead of stitch. We lose our trust in them without even knowing it. They master us. And each time they do so the foundations of our society grow a little weaker.
