It often seems that when the Trump team has the high ground on a story, it rushes to bulldoze it to the ground. The controversial interview by Rudy Giuliani on CNN, it a case in point. In response to the rebuke of BuzzFeed by the Special Counsel, Giuliani gave a rambling interview that included a call for BuzzFeed to be investigated or sued. Neither should occur. I have been critical of how the media and legal experts overplayed the BuzzFeed story. However, if BuzzFeed had two officials connected to the Mueller investigation giving this information, it was news. Indeed, aspects of the story are likely to be born out by Michael Cohen in his testimony before Congress. There is ample reason to criticize how the media treated this story but the suggestion that journalists should be investigated or sued for reporting such a story is dangerous and unwarranted. Indeed, Giuliani made news an by asking “And so what if he talked to him about it?” In fairness to Giuliani (who has been unfairly reported on the context of the statement), he prefaced that statement by saying that he did not know if Trump spoke to Cohen. However, it would be a reckless and problematic act if Trump spoke to a witness about this testimony on his and Trump’s conduct. Such an act would maximize the risk to himself and Cohen.
Giuliani also explained Trump’s repeated references to Michael Cohen’s father-in-law that made most of us cringe. It sounded a lot like trying to intimidate a witness. Giuliani insisted that Cohen’s father-in-law, Fima Shusterman, was involved in criminal conduct and likely has organized crime connections back in Ukraine where he was born. Shusterman reportedly loaned millions to a Chicago cab company owner and was mentioned in the FBI warrants. Giuliani said that that is just part of addressing the credibility of a witness. That explanation however does not address the clearly inappropriate factor of Trump making such points. Had Trump’s lawyers made such objections, there would have been less objection but this was the President of the United States calling for the father-in-law of a federal cooperative witness (who has accused him) to be investigated.
Again, I think that Giuliani has been treated unfairly on his defense of Trump on the issue of whether there was a “deal” in Moscow – a point that I have also made. Where I have a problem is what Giuliani than said about BuzzFeed.
CNN’s Jake Tapper crossed with Giuliani who has continued his record of problematic statements. Tapper set the scene by saying “I want to clear up some questions about this Trump Moscow project, and why Michael Cohen lied to Congress about it and why President Trump misled the American people about it. So just very clearly, did President Trump or anyone on the trump team ever have a conversation with Michael Cohen about his congressional testimony?”
Giuliani objected that “Let me correct the premise of the question. The president didn’t lie to the American people about it.” He later turned to Buzzfeed and said “You’re focusing on this minutia, but the reality is, yesterday BuzzFeed published a story that was scandalous. It was horrible. They should be under — they should be sued, they should be under investigation. They said the president of the United States counseled someone to lie and the special counsel in an extraordinary act–”
Sued for what? Few people seriously believe that BuzzFeed does not have two sources. Moreover, Cohen has already said that he lied before Congress and did so after consultation with the White House. As I have written before, the attacks on the media and threats of lawsuits against the media present a serious threat to the freedom of the press in this country.
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and Trump is precisely the type of plaintiff that the opinion was meant to deter. The case came out of the highly divisive period of the civil rights movement. The New York Times had run an advertisement referring to abuses of civil rights marchers and the arrest of Martin Luther King Jr. seven times. The Montgomery Public Safety commissioner, L. B. Sullivan, sued for defamation and won under Alabama law. He was awarded $500,000 — a huge judgment for the time. Sullivan’s lawsuit was one of a number of civil actions brought under state laws that targeted Northern media covering the violence against freedom marchers. The judgments represented a viable threat to both media and average citizens in criticizing our politicians.
We can criticize how the BuzzFeed was overplayed by the media, but it was still performing a key role in our constitutional system. What bothers me the most about the statements from the Trump side against the media is that it ignores how much our freedoms have depended on the independence of our free press.