1
Election Day
The failing @NYTimes has been wrong about me from the very beginning. Said I would lose the primaries, then the general election. FAKE NEWS!
—Donald Trump, Jan. 28, 2017
NOVEMBER 8, 2016: At 10:00 p.m. I made one last circuit of the newsroom. Our CEO, Mark Thompson, stood near the political desk, looking on with his wife and a small group of others connected somehow to The Times. Pennsylvania, Wisconsin, and Michigan remained in doubt, but the reality was sinking in: Donald Trump was on the verge of winning the American presidency. I have been in newsrooms on election night before. I know how it is supposed to be. The only thing that ever mattered was the horse race (think Gore-Bush) or the historic moment (think Obama-McCain). There was no investment in which candidate was winning—he (or she) was destined to disappoint in the long run—and the dominant emotion was a certain not-quite-cynical detachment amid the electric buzz of the vote count and projections and the anticipation of relief that the endless push of the campaign was finally over. Sure, you couldn’t ignore the victories or the big-picture moments, and the day-after stories would be celebratory in their way—duly restrained but with a nod to victory itself, not unlike the next-day account of a Super Bowl or Game Seven of the World Series.
Capture the triumph for a night or relish the race too close to call. Leave the dancing and the crying for others, for believers. But this night was like no other election night. There had been an investment, not just journalistic but spiritual. Donald Trump had campaigned not just against Hillary Clinton but also against The New York Times and the mainstream American press. And his astonishing rise to the top of the Republican Party had been built on a near-daily attack on facts—on the very idea that facts mattered. For journalists, who approach truth like a secular religion and who had seen a thousand times before how a single true story could gut the political career of a lying politician, it had been a year of faith-shaking disbelief. A line had not just been crossed but obliterated. The shock was palpable as the numbers came in, laced for some with the fading hope for a different outcome among people who generally wanted nothing more than a story worth telling. And there was still a paper to put out, a reckoning to account for.
It was too much on an already long night. I slipped away. At the elevators, I ran into Sue Craig and a guy who was obviously not from The Times. Sue had broken one of the biggest stories of the campaign: she was the one who went to her mailbox one day in September and found pages from Donald Trump’s tax returns in an envelope. She introduced me to her acquaintance. He had once worked for Trump. I didn’t ask why he was there. Like me, Sue had decided to get away. “It’s too weird here,” she said. We all got on the elevator: Sue, who had written a devastating story about Trump; me, whose letter to Trump’s lawyer had lit up the internet for a week in October; and one of Trump’s guys. We rode in silence, a strange tableau on the strangest night of the year.
Fourteen hours earlier, as I came into the building, The Times security guards had called me over. They wanted to make sure I knew about the plans for the next morning. In the quirky ways that things happen at The Times, I had become the lawyer to see for all the things the security guys encountered—from the intruder who pilfered women’s shoes to the anonymous letter weaponized with razor blades. The Times was printing thousands of extra newspapers, and tables were going to be set up outside for all the people who would be showing up to buy The New York Times for posterity’s sake. (The headline, I learned later, was going to read “Madam President.”) We had been caught flat-footed eight years earlier, when Barack Obama had made history. By the time I arrived for work early on the morning after the 2008 election, the line was already starting to snake down the sidewalk. Soon there were hundreds of Obama supporters who thought—why wouldn’t they?—that the place to buy a copy of The New York Times was surely at The New York Times. Lots of things happen at The Times building; selling newspapers is not one of them. Employees were pressed into emergency duty to cart bundles of newspapers from The Times printing plant in Queens, and the long lines outside the building stretched on into the afternoon. But it was Obama’s victory in 2012 that was on my mind this morning. I vote in a neighborhood that is predominately black and middle class. In 2012, following a drumbeat of stories about how Republicans hoped to suppress voter turnout, I walked into my polling place at a local school eight minutes after it opened. The line already extended back to the schoolhouse doors. “Did y’all sleep here?,” a guy wanted to know as he stepped into the foyer. On this morning in 2016, I had arrived again before dawn. I was the only one in line at my precinct’s table.
That all seemed like a strangely distant memory as midnight approached. I had made my escape from the building with Sue and the Trump guy. At home, I sat alone in the glow of the TV screen as the states that mattered fell into place for the Republicans. I turned it off. Donald Trump was about to become the president of the United States.
The next morning, in a light drizzle on a gray November day, the newspaper sales tables were set up outside the building as planned. No one stopped. The vendors sat idly amid the stacks. There was no “Madam President” front page. Instead, the headline read “Trump Triumphs,” and the first two paragraphs of the lead story talked about how the vote “threatened convulsions throughout the country” and made an early mention of those who “had watched with alarm” the rise of Trump. Nearly half the country had voted for the man. I had just spent a weekend in October back in rural Illinois, in my hometown, and for a moment I allowed myself to see the coverage through the eyes of the rest of America, where, at least for this one night, his victory represented a certain kind of hope that change was going to come at last.
It wasn’t that hard. I wasn’t one of those people you saw around the building who were real Timesmen and Timeswomen, people you were certain had been destined for the place from the time they were in junior high. My path, from the small-town Midwest to a law degree at age 37 and, a decade later, to The New York Times, had never been foreordained.
On a Thursday morning in May 2002, I said goodbye to the guard at the New York Daily News building on 33rd Street in Manhattan and made my way 10 blocks north to start my new job as a lawyer for The New York Times. I had spent two years at the Daily News, a blue-collar tabloid struggling to survive in the gritty world of New York City journalism, telling the stories of cops and killers, intrigue at City Hall, sex romps gone bad, the slaughter of pedestrians on Queens Boulevard (aka the Boulevard of Death), the shifting fates of the New York Mets, the evil genius of George Steinbrenner, and the workaday indignities of the city’s subways. It was only a quick 15-minute walk that separated the News’s down-market offices from the gothic temple that was The Times, a paper we loathed and resented and envied in more or less equal parts. When I occasionally showed up for news industry meetings at The Times, I would be led through a winding corridor where every wall was lined with outsized plaques, one for each of its dozens of Pulitzer Prize winners, every step seemingly a reminder of one’s own unworthiness and lack of belonging.
Three decades earlier, as a brand-new journalism graduate from the University of Illinois, I had taken a job at the Quad-City Times in Davenport, Iowa. While I was there, the city council decided to hire a New York City police official as the new chief of police. Our city editor placed a call to one of the clerks who ran the “morgue” at The New York Times, that ancient catacomb in which a team was employed to clip each day’s newspaper and carefully place the articles into drawers of endless filing cabinets, stored away forever for future research. The editor from Davenport was hoping to find a little background on the new chief.
“Hello,” he said, “my name is Mike McGreevy, and I am the city editor at the Quad-City Times in Davenport, Iowa.”
“I couldn’t be more impressed,” the clerk said.
To me, a small-town kid from Illinois working as a journalist in a small city in Iowa, a million light-years from New York, that said it all, what it was like to be The New York Times. When I tell this story later to colleagues at The Times, they invariably say the place isn’t like that now, and they are right, and maybe it was never really so offhanded in its arrogance, although no one ever doubts the story happened.
And for all of the paper’s deeply held tradition, the narrative of my time at The Times was a narrative of change. The day I walked through the door on 43rd Street in 2002, the company owned 20 newspapers in places from Santa Rosa, California, and Gadsden, Alabama, to Boston and Paris. It had TV stations around the Midwest and the South. The Times website, nytimes.com, had been in existence for six years, but the heartbeat of The New York Times remained the thunder of printing presses and the sound of newspaper bundles hitting sidewalks. As it had been for decades, the paper was a singular voice in American journalism, setting the agenda for hundreds of smaller news outlets. The business of being an in-house media lawyer had changed little over the preceding decades. I vetted stories for legal problems, oversaw a handful of libel lawsuits, and answered reporters’ questions about newsgathering. Interesting work, and The Times provided a platform like no other for lawyering as well as for journalism.
By the time Donald Trump made his improbable run for president, much of that had changed. The Times had exited the broadcast industry and sold off all of its other newspapers. It was in an existential fight to remain a relevant and powerful global news provider while reinventing itself as a digital publisher in a media ecosystem marked by ruthless competition for ad dollars, an explosion of pitchfork partisanship, and a head-spinning cultural war over the very nature of truth. Governments had long embraced secrecy but, post-9/11, in a nation unnerved by terrorism, the expanding national security state erected endless barriers for journalists trying to cover the inner workings of government and America’s global ambitions. That rising tide of secrecy was met by leaks of startling proportion and audacity. WikiLeaks was able to make hundreds of thousands of pages of secret government documents available instantly and globally. Edward Snowden walked away with more data than it was possible to quantify. It was no longer the world of Daniel Ellsberg and the Pentagon Papers.
The work of reporters was changing as well. Tweeting became both a form of journalism and, as a president with a cell phone would prove, the subject of journalism. The grim reality of foreign correspondents’ new place in the world was horrifyingly captured by the video of James Foley being beheaded by ISIS in Syria. Reporters, once viewed by all sides as honest brokers in a conflict zone, had become soft targets.
Those same disruptive forces transformed what it meant to be a lawyer for The Times. With no training and no warning, I became the go-to person when our journalists were kidnapped, hurt in war zones, or detained by hostile governments. I spent every day for seven months working to free a reporter after he was kidnapped in Afghanistan in 2008. Three months after his return, it started all over again with a phone call on a Saturday morning as I walked across a grocery store parking lot: two more journalists had been kidnapped by the Taliban. Even my core work pivoted. As secrecy spread across every level of government, we doubled down on trying to unlock the information that the government did not want us to see. Over the course of a decade, I brought dozens of suits seeking government documents hidden from view. I stood with our editors when they decided to publish classified information that shed light on the surveillance of Americans and the government’s misconduct and its misguided policies abroad. As The Times became a true global news source, libel suits were brought against us in Greece and China, Iraq and Indonesia, India and France. And it was all happening as the sheer pace of journalism accelerated in a way that was unimaginable a decade before—unrelenting deadlines around the clock, with fewer editing hands touching copy as stories were instantly launched to an audience that was everywhere. We were sued over a tweet in 2011. Law, ever slow to change and deeply bound by tradition and form, was plunged headfirst into its own uncharted digital future.
How much my world had changed had become self-evident in the fever pitch of the 2016 presidential campaign. One morning in October I wrote a letter to Donald Trump’s lawyers defending our story about two women who said Trump had groped them. In ways, it was not so different from dozens of lawyer letters I had written before to those unhappy with what The Times had done. Only this one landed in the white heat of the campaign, and it pointedly suggested that Trump’s reputation, at least when it came to the treatment of women, was so tarnished it could be tarnished no more. It ended with an invitation to the candidate to sue us if he really believed the First Amendment didn’t protect The Times. Because his letter had been published online, we too launched ours onto the internet, where it was swept up in the cascading tide of social media. Millions of people on Twitter and Facebook and whoknowswhat.com read it and passed it on, over and over again. It became, thanks to the internet and the singular stature of The New York Times, an artifact of the 2016 campaign, a 17-sentence defense of press freedom and the right of women to stand up to the powerful. Old-school lawyering met its social media moment.
That digital flash moment had pretty much dimmed by the morning after the election, as I made my way to The Times Legal Department, as if it were just another day at the office, which it certainly wouldn’t be. I couldn’t help but think about what the press had learned over the course of a bruising campaign, what it needed to be now as it stepped forward into the uncertainties of a Trump presidency. Whatever your politics were, it was impossible not to understand that we had become a country of breach, divided in fundamental ways. There was a time, 50 years ago, when a free press had helped heal a country torn by racism and inequality and the war in Vietnam by staying loyal to the truth, reporting the hard facts, and forcing America to confront its worst demons.
But this time? Could the press play that role again, could it be the honest broker that never lost sight of the public’s best interest? Or had something fundamental changed in the nature of the American public, or in the nature of the American press, or in the symbiotic relationship between the two?
Wherever we were going, the one thing you knew for certain was that the central player in whatever narrative was to come would be Trump himself. He was unlike any politician America had ever seen before. Trump talked unscripted to reporters more than any president in recent history, yet he savagely lashed out at the press in public. He demanded that the laws of libel be changed so it would be easier for people like him to sue. He egged on crowds to jeer the working journalists at his rallies. Articles that challenged his leadership, his ethics, his honesty, or his popularity were denounced as fake news. In Trump’s world, there were “alternative facts” when the truth became too inconvenient. All the things I had believed to be self-evident about the place of press freedom in America—its value, its necessity, its centrality to democracy—were under siege and no longer seemed so certain. There was a war going on for the hearts and minds of the American people, and like it or not, America’s press was pinned down in the middle of it.
It was a hell of a time to be a lawyer for The New York Times.
2
Reckless Disregard
My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting.
—Donald Trump, Sept. 17, 2016
Oh good. So you are against a free press. You thin skinned manchild. Maybe they should sue you for defamation.
—Response from a Twitter user
THE EMAIL POPPED up in my inbox on November 3, with just days to go before the election. “David, hi, I’m a contributing editor at “New York magazine, and I’d like to write a short piece on your lawyer-letter-heard-’round-the-world for our annual Reasons to Love New York issue. Would you have time next week for an interview?”
Letter heard ’round the world? The piece would write itself. Times lawyer writes letter to Trump lawyer. Letter goes viral. Sanity is restored, Trump loses, Times lawyer ends up among the icons in Reasons to Love New York. I made an appointment to see the writer on November 9. That would be the right time to do such a thing, the morning after the election of Hillary Rodham Clinton.
A certain awkwardness ensued when the appointed hour came. “I guess yesterday kind of killed this story,” I offered. The writer was not so easily deterred. As we sat in my office and talked, it was clear he was looking for the thread that would pull the piece together, that money quote from the barricades, me with a lawyerly pitchfork standing lonely guard on the First Amendment in the first hours of the political Armageddon. I could sense his disappointment. I told him I thought it was too early to say what might happen. Trump scoring political points at the media’s expense in campaign rallies was one thing; waging a for-real war on the press from the White House was another. The laws protecting the press were strong and resilient. Reporters weren’t going to back down. The public understood the need for a free and independent press. Sure, leak investigations that went after reporters’ sources were a concern—it was the one place where the legal protections were inadequate—but even there the big confrontations between the government and the press had been the exception rather than the rule. “We’ll just have to see,” I said.
He wanted to know what my family thought, a fairly transparent attempt, in my mind, to find out whether there was somebody sane at home who didn’t share my disturbingly mushy views about the impending Trump disaster and might be able to set me straight. I rambled on about the trip I had just taken to Illinois, to my tiny hometown in the center of the state, about being surrounded by Trump voters, about understanding Trump’s appeal to the people I grew up with, about how I thought everything was going to work out OK because even in a divided nation freedom of speech was one of those issues that liberals and conservatives could agree on. He stopped taking notes. I walked him to the elevator.
When New York magazine published the Reasons to Love New York issue, there was a theme of sorts. (No. 3: Because Our Streets Defy Dictators … No. 4: Because We Know Where Trump Lives … No. 47: Because Hillary Clinton Thought Brooklyn Could Be the Capital of America…) I was—no surprise—not among them, but there was at least this: No. 22: Because since Trump’s election … 180,000 people bought New York Times subscriptions, ten times the normal rate.
The interview was no fluke. All around me people were talking about the Trump election as the end of press freedom as we know it, or maybe the end of freedom, or, in some corners of the Upper West Side of New York, maybe just the end. I was not there. Those of us who spend our days in the world of media law and press freedom and journalism are always a little too ready to crank up the First Amendment Outrage Machine at the first sign of trouble. I believed we all needed to take a deep breath, wait for something real to happen (besides Trump’s loopy rants about changing the libel laws so he could get more money), and react in a measured and appropriate way. There was a reason one of my young colleagues called me a “raving moderate.”
In the election’s wake, Emily Bazelon, the talented legal affairs writer at The Times Magazine, was doing a piece on some troubling press-law cases. The story would appear later under the headline “Billionaires vs. the Press in the Era of Trump.” It was a sharp-eyed look at lawsuits being brought with open wallets by right-wing aristocrats eager to take on the press. There was the Idaho billionaire Frank VanderSloot, who unrelentingly went after the left-leaning magazine Mother Jones over its portrayal of his involvement in a gay-rights controversy. And there was Peter Thiel, the Silicon Valley billionaire who secretly financed Hulk Hogan’s successful invasion-of-privacy suit against Gawker after the snarky website posted outtakes from a video showing Hogan having sex with his best friend’s wife. And there was Trump himself, who directly or through his companies had been the proud plaintiff in seven suits involving libel or similar claims, all losers (to put it in Trumpian terms) except for the one in which the defendant failed to show up. (When Emily asked for comment from Trump for the article, Hope Hicks, his aide, responded, “Mr. Trump is focused on the issues that were the cornerstones of his campaign as well as appointing a cabinet to achieve his ambitious agenda. Best, Hope.”) Emily’s thinking was encapsulated in the subhead her magazine piece carried: “A small group of superrich Americans—the president-elect among them—has laid the groundwork for an unprecedented legal assault on the media. Can they succeed?”
Not long after Trump’s victory, I read a prepublication draft of Emily’s story as I waited at LaGuardia for a flight to Boston. I told her I thought that she was … well … wrong. “I fundamentally disagree with the premise of the piece—I don’t see a trend and I don’t see much of a threat, not compared, say, to what was going on in 1964.”
Yes, in the months to come, it would be cringe-inducing whenever I went back to read that email. Few things in life are worse than retroactive embarrassment. But the email pretty much nailed how I missed out for so long on what was really going on: I was thinking like a lawyer. And 1964 was the year when the U.S. Supreme Court had decided New York Times v. Sullivan, setting new legal barriers for powerful people who wanted to use libel suits to punish the press and silence their critics. For America’s fat cats and plutocrats, the libel game was being shut down. Sullivan pretty much guaranteed that Donald Trump, perpetually unhappy about his press coverage, would spend large chunks of his adult life storming around his empire threatening libel suits that he would never bring and couldn’t win.
In the years since Sullivan, the media—not the Donald Trumps of the world—had won. Repeatedly. Decisively. Consistently. Media lawyers and their journalist clients had spent most of the last three decades consolidating victories, not fighting rearguard actions to save press freedom from the well-heeled and well-placed.
Sullivan had begun a revolution. It was a 9–0 smackdown of plaintiffs who saw libel suits as a legal extortion racket to be used to silence publishers. L. B. Sullivan, the plaintiff, was a commissioner overseeing the police in Birmingham, Alabama, and therefore a man ideally positioned to do what he could to set back racial justice by a few decades. Commissioner Sullivan sued The Times for libel for publishing an ad from supporters of Martin Luther King. The ad called out the violence being visited upon civil rights protesters in the South, in particular the police misconduct during a demonstration at a college in Birmingham. Sullivan claimed that the ad had besmirched his good name, and he persuaded an Alabama jury—not that this was hard—to hit The New York Times with a $500,000 verdict in his favor. There was nothing particularly special about Sullivan. He was just one of dozens of tinhorn Southern power brokers who at that time were bringing libel suits against publishers and broadcasters from the North because they wouldn’t shut up about the evils of segregation and the criminal behavior of public officials in the Jim Crow South.
Copyright © 2019, 2021 by David E. McCraw
