On October 13, 2016, David E. McCraw, the deputy general counsel at the Times, wrote what quickly became known, in legal circles, as one of the most memorable lawyer letters in decades. McCraw was responding to Donald Trump’s threat to sue the Times, after it published an article in which two women accused the Republican Presidential nominee of groping them.
“The essence of a libel claim, of course, is the protection of one’s reputation,” McCraw wrote to Marc Kasowitz, one of Trump’s many attorneys. “Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s 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 has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.”
The letter went viral, with more than a million people reading it on the Times’Web site. McCraw recounts his dealings with Trump’s team in his new book, “Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts.” He also tells stories about the newsroom (including on the night of the 2016 election), describes how the Times reported stories on Trump, Bill O’Reilly, and Harvey Weinstein, and, in the process, explains what a libel lawyer really does.
I recently spoke by phone with McCraw. During our conversation, which has been edited for length and clarity, we discussed the advantages a big paper like the Times has in libel battles, why it’s harder to commit libel against a political figure, and the real threat to press freedom in the era of “fake news.”
When Times reporters and editors are working on a story that they believe is controversial or potentially libellous or potentially explosive, where do you come into the process, and how does that work?
There’s no set pattern for a story like the Harvey Weinstein story. I was contacted very early by Jodi Kantor, and she laid out what her reporting was going to be looking at. Sometimes I’ll be assisting with Freedom of Information requests on stories that deal with the government, and I will be involved with that process, again, shortly after the reporter has the idea for a story.
At the other extreme, I get involved two and a half minutes before a story is to be published. I usually push it out to five, so I can read it, but sometimes at the last minute someone will say, “I really think this may raise a legal issue. Let’s run it by legal.” In between those two extremes, there’s a lot of variation. It’s fair to say that, in most cases, where the issue is solely whether it’s libellous or whether it invades privacy or whether it has some other legal problems, I’m going to be doing it in the twenty-four hours leading up to publication.
What are you looking for to determine whether something is libellous? And would you go about your job any differently if you were at, say, a small newspaper in Cleveland?
The principal thing that all libel lawyers look at now is, inevitably, implications. The law of libel has swung very heavily toward causes of action, lawsuits brought not on the basis of the literal words but on the implications flowing from the words. What that means is that libel lawyers read it in a cynical manner, if you will, trying to understand how this may be construed, how it may be spun by someone who doesn’t like the story. Implications, number one.
We also are really concerned about the minor characters in a story, the minor players. They tend to be the people who bring the libel suits. Over and over again, we’ve seen that the person in the headline, the person in the lede, is not the person who is likely to be a libel threat. More often than not, it’s somebody who’s deep in the story, who for whatever reason feels that the story has not accurately portrayed him or her.
So in the case of Harvey Weinstein or Bill O’Reilly or the President, what would be an example of who this could be?
In a story that deals with sexual harassment in the workplace, I usually have great confidence that we have the story right about the person who is the focus of the story. I’m looking very carefully at the H.R. director, if he’s mentioned in the story. I’m looking very closely at the agent who was told about the sexual harassment and is portrayed as not having done anything. I’m concerned about the colleagues. Many times, those people are the ones who, first, don’t really want to be associated for the rest of their Google life with that particular story, and, second, are concerned about us implying that they didn’t do all they should have or that they looked the other way. If we take care to make sure that we have been as comprehensive, as careful with those people as we have with the main actors in the story, then we’re in good shape.
You asked about the hypothetical small newspaper and whether that person would go about work differently. The answer is this: because the Times has a long history of not settling libel suits in the United States with payments to the defendant, we tend to be in cases for a long time. We aren’t looking for a way to exit early with a small payment. That has a twofold effect. One is we’re going to press really hard to make sure we have the story right and legally sound. The other thing is I think we tend to be more fearless in the face of a legal threat. I think that, at many papers, the letter received before publication has a profound effect on the journalism that gets done or doesn’t get done. We accept that being threatened, even being sued, is part of doing business. If we have to live in fear of that, we’re not really going to be doing what we need to do for our readers.
You have a scene in the book where you talk about the reaction to Trump’s election in the newsroom on Election Night. You basically say you’ve been to a lot of newsrooms on elections, and even when the reporters are liberal, when Republicans win, they react kind of stoically. But in this case, you could tell that people were kind of shocked. Do you think that that reaction had more to do with the fact that Trump is a different kind of conservative or with the fact that he specifically represented what a lot of reporters perceived and were open about perceiving as a threat to their industry?
I think the reaction on Election Night was more a reaction to what had been reported on the run-up. I think that, across the United States, in media and news sites and at polling sites, the chances of Trump winning seemed very, very small. I think the reaction was that. Obviously, it was also colored by how combative Trump had been with the media.
Not long after that night, I had a couple of reporters come to my class at N.Y.U. Law School. I have to say that the attitude of surprise had shifted into an attitude of “this is going to be an incredible story to tell.” And I think it’s proven to be so.
Well, I would still trade it for less of a story to tell. Let me ask you, though: Obviously the Times is perceived as liberal by a lot of people. Certain news organizations like Fox are perceived as conservative. If a news organization was sort of open about that, would that weaken its ability to fight libel cases?
I think that the dominant factor in coloring whether judges give a newspaper the benefit of the doubt is the reputation the publication or the broadcaster has for telling the truth. My sense is that the thing we need to do is continue to maintain our reputation as a news organization that pursues the facts. That, I think, resonates with judges. If you make a mistake, I think they’re less likely to think that’s because you were sloppy or careless or didn’t have proper regard for the truth.
You have had a lot of dealings with Trump, going back to, what, 2014?
I think I probably started dealing with Trump, Trump lawyers, going back fifteen years, twelve years.
What have you made of the lawyers he surrounds himself with?
He’s had a variety of lawyers. Some of them are quite competent. The people that he has representing him in many of his cases from Marc Kasowitz’s firm have been solid, professional, and lawyers that have standing in the community. At times, when he was arguing about stories, when he disliked stories we did, we would hear from people who were at smaller firms. Many of them were tenants in one of his buildings. Again, they were perfectly competent, but they weren’t people who I think had a great deal of influence with their clients and largely were in the business of trying to get us to do a story in a different way than we intended to do it.
Your book talks a lot about reporting on political figures like Trump, and also about people like Bill O’Reilly and Harvey Weinstein. Do reporters have more leeway when writing about politicians or public figures?
I think you have to distinguish between journalistic leeway and legal leeway. Journalistically, the standards should be the same for writing about a private individual or an individual who’s not particularly well known and writing about a major celebrity. There’s no leeway on the facts. We should get it right.
Now on the back end, if we were to get sued, there is a different legal standard. The private individual has an easier time winning a libel suit than a public figure, and that was by design. That was the Supreme Court’s whole point of reference in Times v. Sullivan and the cases that followed. We want to not have a press that’s fearful when it’s covering public events involving public figures and public officials. When the coverage turns to private individuals, then the balance between the need for a free press and a need to protect reputations shifts a little bit. We’re going to make it easier for private individuals to win.
The takeaway that I got from your book is that the biggest threat that you see to press freedom is not from libel laws or from the government cracking down more than it already has but from the general erosion of trust and what that will, in the long term, mean for press rooms. Do you think that’s a correct analysis? And, if so, why do you think that’s the case?
That is a correct analysis. If Clarence Thomas had told me last year that he intended to write a concurring opinion, saying he wanted to see Times v. Sullivan reconsidered, perhaps I would have taken a richer view of the threat of law change. But even with Clarence Thomas in the picture, I still believe that the attack on the press is really an attack on the legitimacy of the press, on the idea of a free press, on the value of a free press, and it concerns me. There was a poll last year, which showed that twenty-six per cent of the respondents believed that the President should have the right to shut down news organizations that misbehave. When you see a statistic like that, you realize that we have really run off the road, at least in some places, that we’re not getting the story out, that some of the things that we should all hold to be true—the value of a free press being one of them—are no longer held in the esteem that they should be.
I think that’s the dark genius of the charge of “fake news.” It sounds like something somebody pursuing the truth would say, when in fact it’s just the opposite. It’s an attempt to get people not to think. It’s an attempt to get people to disregard the facts and simply label. I think that has a couple of effects in the long run. One is that it erodes the ability of the press to move popular opinion, and that’s really where the power of the press lies. We report, people decide to take action. If we’re not believed, we’re not that much different from a shackled press in another country, where the press isn’t believed because it’s under the control of the government.
The other thing that happens, and I haven’t seen any proof of this, so I’m simply speculating, is that the people that sit on juries are hearing the same thing. They’ll be deciding libel cases for news organizations. If you come to the jury with the sense that the press makes it up, chances of you looking fairly at the evidence starts to decline. That’s a concern.
Have you seen the episode of “Seinfeld” about proctologists, and how you’d think they were serious people, but they all have funny senses of humor?
The reason I bring this up is because I was sort of surprised that your book is a little bit saucy. On the back cover is a letter that you sent to one of Trump’s lawyers with what I would call some humor. [The letter is quoted in the introduction to this interview.] In the book, you use words like “sleazy” to describe certain arguments or people. It’s a very opinionated book, and I would think you’d steer clear of those things. So, is this a thing? That libel lawyers are actually saucy, unfiltered people, even though we might think the opposite? Or is this just you?
Well, I’m not going to embrace the characterization as saucy. I’m not sure what that means. The letter was not joking. The letter was an attempt to frame how a libel lawyer would make that argument. The primary issue in a libel suit is whether, in fact, a false statement has lowered someone’s standing in the community. That begins with understanding what somebody’s reputation is for a particular activity or quality. So that was a dead-serious attempt to lay out the case that we would make, if we were going to be sued. Now, I do think it’s fair to say that the book is, I’m going to use the word conversational, and that was by design.
Saucy is a better word than conversational, but O.K.
As I say in the introduction, I thought it was important that I not write a book that was meant for a legal audience. I thought that we needed to speak to people on the street, whatever their politics, about why press freedom was important, that people needed to understand about how news reporting is actually done at a place like the Times. This isn’t sitting around making it up.
After I wrote it, I did actually, as I was revising it, take some of the chapters and make them a little more serious than they had been on the first rendition. I thought as time had gone on that there were some concerns that I was seeing, and I didn’t want people to miss the point that this is a serious problem.