New York Times columnist David Brooks ignored his paper's reporting to defend Indiana's controversial new "religious freedom" law, misleadingly equating it with its federal version and misrepresenting the reason it has sparked such widespread opposition.
Indiana has been embroiled in controversy since it passed its version of a "Religious Freedom Restoration Act" (RFRA), a law that has been used to provide a legal defense for individuals and businesses who cite their religious beliefs as a justification for discriminating against gay people, even in lawsuits that don't involve the government.
In his March 31 column, Brooks joined a number of conservative defenders of the law in falsely suggesting that Indiana's measure is no different than the federal RFRA signed into law in 1993. Brooks also erroneously stated that opponents of Indiana's dangerous expansion of the federal RFRA (and previous state versions) are not respecting the "valid tension" between religious belief and permissible discrimination, when in fact the main objection to the law is that Indiana has upset the previous balance to further undercut antidiscrimination protections:
The 1993 Religious Freedom Restoration Act, which was supported by Senator Ted Kennedy and a wide posse of progressives, sidestepped the abstract and polarizing theological argument. It focused on the concrete facts of specific cases. The act basically holds that government sometimes has to infringe on religious freedom in order to pursue equality and other goods, but, when it does, it should have a compelling reason and should infringe in the least intrusive way possible.
This moderate, grounded, incremental strategy has produced amazing results. Fewer people have to face the horror of bigotry, isolation, marginalization and prejudice.
Yet I wonder if this phenomenal achievement is going off the rails. Indiana has passed a state law like the 1993 federal act, and sparked an incredible firestorm.
If the opponents of that law were arguing that the Indiana statute tightens the federal standards a notch too far, that would be compelling. But that's not the argument the opponents are making.
Instead, the argument seems to be that the federal act's concrete case-by-case approach is wrong. The opponents seem to be saying there is no valid tension between religious pluralism and equality. Claims of religious liberty are covers for anti-gay bigotry. [emphasis added]
The press has almost entirely ignored the revelation that after the "richest man in Wisconsin" made secret donations benefitting Republican Governor Scott Walker, his company received special tax credits for that same donor's company.
By contrast, the media have frequently invoked donations to the Clinton Foundation in their coverage of former Secretary of State Hillary Clinton, baselessly suggesting that those donations create conflicts of interest.
Yahoo News reported March 23 that John Menard Jr., the billionaire owner of a chain of hardware stores in the Midwest, donated over $1.5 million to the Wisconsin Club for Growth, which "pledged to keep its donors secret." Walker helped generate large, undisclosed donations for the group, according to records unveiled as part of a criminal investigation into whether the interactions of such groups with Walker's campaign committee violated state campaign finance laws. The Club defended Walker in the 2012 recall election, where he prevailed.
Since then, Menard's company "has been awarded up to $1.8 million in special tax credits from a state economic development corporation that Walker chairs, according to state records." Walker appointees also scaled back enforcement actions by the Wisconsin Department of Natural Resources, "a top Menard priority."
MSNBC's Rachel Maddow gave a detailed account of the story on her March 24 broadcast:
Yet the pay-to-play allegations swirling around Walker, a possible Republican presidential candidate, have been widely ignored by others in the media.
The story hasn't been covered on the three major broadcast networks, CNN, or Fox News, according to a search of Nexis and Media Matters' video archives. The Rachel Maddow Show appears to be MSNBC's only mention of the story. Besides a reprint of an Associated Press article noting a denial of wrongdoing from the Walker administration, the New York Times hasn't covered the story. And the only references from The Washington Post are in a post on the progressive Plum Line blog and the same AP story the Times reprinted.
By contrast, the media has repeatedly raised the specter of "ethical concerns" over donations to the Clinton Foundation by foreign governments and individuals, among others. They have persisted with this coverage despite the clear indications from Hillary Clinton's record as secretary of state that the donations did not influence her politically and the reality that the donations went to a global charity, not a fund benefiting her election.
Fox News host Howard Kurtz offered an erroneous defense of the flawed 1992 New York Times story that is widely credited for sparking the Whitewater investigations.
During the 1990s, Hillary and Bill Clinton were extensively investigated for their role in Whitewater -- a land deal gone awry in the 1970s and 1980s -- but all of the probes determined that no wrongdoing occurred on the part of the Clintons.
The impetus for national interest in Whitewater was a March 8, 1992, front page story in the Times authored by investigative reporter Jeff Gerth that scrutinized the Clinton's real estate dealings. Political opponents then seized on Whitewater to kick off years of investigations in a fruitless effort to pin wrongdoing on the Clintons.
On the March 15 edition of MediaBuzz, Kurtz reported that Gerth had contacted him to defend his "100 percent accurate" 1992 article, which had been criticized on the show the previous week by Daily Beast writer Michael Tomasky. According to Kurtz, "Gerth is right" to defend the article, which reported that "the Clintons bought land in Arkansas with the owner of a state-regulated [savings and loans company]":
KURTZ: On last week's program, The Daily Beast's Michael Tomasky criticized the New York Times story back in 1992 that broke the Watergate scandal, excuse me, the Whitewater scandal, saying it had been documented to most people's satisfaction that many of the details in the story didn't hold up. Well the author, investigative reporter Jeff Gerth, got in touch to say the article, which said the Clintons bought land in Arkansas with the owner of a state-regulated S&L that failed, and Hillary Clinton and her firm represented the S&L, was 100 percent accurate and the Clintons never asked for a correction. Gerth is right. It's hardly his fault that Whitewater came to stand for so many spin-off allegations.
But Gerth and Kurtz are wrong. Jim McDougal, the Clinton's business partner, did not own a state-regulated savings and loans company when he bought land with the Clintons. (McDougal would later be convicted of fraud relating to business dealings he undertook as the operator of savings and loan association Madison Guaranty.)
Typing up her latest scornful, fill-in-the-blank sermon about Hillary Clinton -- the kind Maureen Dowd has been churning out robotically for two decades (only the "scandal" topic changes) -- the New York Times columnist actually began her latest missive by likening the Clintons to the Iranian regime. A few paragraphs later, Dowd had managed to segue to perhaps her favorite topic: Bill Clinton's distant sex life. In fact, the March 14 column became Dowd's 100th that contained a "Lewinsky" reference, according to a review of Dowd's columns in the Nexis database.
Dowd's fixation may be something of an outlier at the Times. Who else would reference an extramarital affair in one hundred different columns? But Dowd clearly does represent the Times' larger, institutional and never-ending personal antagonism toward Bill and Hillary Clinton. It's been a Times-sponsored grudge match that goes back more than two decades. (Times publisher Arthur Sulzberger Jr. once told Clinton the paper had adopted a "tough love" policy towards his presidency. "I've seen the tough," Clinton quipped. "Where's the love?") And now that enmity has been awakened for the recent Hillary Clinton email saga.
Has that contempt fueled the Times' often sloppy coverage lately? "The real controversy isn't about politics or regulations," wrote Kurt Eichenwald in Newsweek, offering up a detailed critique of the Times' email reporting. "It's about journalism and the weak standards employed to manufacture the scandal du jour."
For instance, note that in its March 2 report about Clinton's emails, the one that ignited the so-called scandal, The New York Times suggested Clinton "may have violated federal requirements" through her use of a non-government email address while serving as secretary of state." It was that hint of criminality that first gave the story so much pop in the press.
But it turns out that hint of criminality was invented by the Times newsroom, as several news outlets have since confirmed that Clinton did nothing illegal with her email account. (Ten days later, the Times got around to making that point itself.)
And that's the pattern we've seen unfold for twenty-plus years at the Times. With the bogus pursuits of Whitewater, the Loral spy satellites story, would-be spy Wen Ho Lee, and now Hillary Clinton's emails, the Times uncorks supposedly blockbuster allegations against a Clinton that are based on vague reporting that later turns out to be flimsy, but not before the rest of the Beltway media erupts in a guttural roar (led by sanctimonious Times columnists), and not before Republicans launch investigations intended to destroy the Clintons politically.
Last week, the Times' Patrick Healy wrote that the news media is emerging as Hillary Clinton's toughest political opponent. Indeed, the Times, once again, remains at the front of the charge.
The New York Times has begun to quietly reverse course on reports about former Secretary of State Hillary Clinton's private email use, after Times public editor Margaret Sullivan admitted that the publication's initial misleading insinuation that Clinton violated the law was "not without fault." The new, more accurate reporting underscores the publication's initial sloppiness and rush to judgment.
The New York Times recently published an op-ed attacking renewable fuels from the Manhattan Institute's Robert Bryce without disclosing his ties to the oil industry, despite a directive from its former public editor for the paper to fully disclose its op-ed contributors' financial conflicts of interest.
In a March 10 New York Times op-ed, Robert Bryce falsely characterized the Renewable Fuel Standard (RFS) as an expensive "tax." The standard, which requires oil refiners, blenders, and gasoline and diesel importers to blend a set amount of renewable fuel into their gasoline supply, was dismissed by Bryce as a "boondoggle" and a "rip-off."
But the Times failed to disclose Bryce's financial incentive to attack the RFS, identifying him only as a "senior fellow at the Manhattan Institute and the author of a new report from the institute, 'The Hidden Corn-Ethanol Tax.'" The Manhattan Institute has, in fact, received millions from oil interests over the years, including $635,000 from ExxonMobil and $1.9 million from the Claude R. Lambe Charitable Foundation, where Charles Koch and his wife sit on the board of directors. Koch made his fortune from oil and currently has significant holdings in oil and gas operations.
Bryce is, in essence, acting as a spokesperson for the oil industry, which has much to gain from weakening or repealing the RFS. The renewable fuel requirement is set to increase over the next several years, potentially replacing up to 13.6 billion gallons of the conventional fuel supply by 2022.
Media outlets are demanding that Hillary Clinton be subject to an independent review of her personal email account to disprove their own baseless suggestions that she engaged in illicit activity or failed to properly disclose all work-related correspondence. The demand ignores that every State Department employee, regardless of whether they use government or personal accounts, decides for themselves whether or not to preserve their emails.
Media figures are acknowledging that Hillary Clinton did not violate federal regulations with her use of personal email, a contrast to The New York Times' initial rush to judgment of possible wrongdoing on Clinton's part that kicked off a media feeding frenzy.
The New York Times published another speculative, counter-factual article in its campaign to scandalize Hillary Clinton's email use, this time insinuating that the former secretary of state is lying about having never sent classified emails during her tenure.
Clinton made clear that she "did not email any classified material to anyone on my email," during a Tuesday press conference made necessary by a manufactured scandal created by earlier shoddy reporting from the Times.
Providing no evidence to contradict Clinton, the Times turned to "some security experts and former government officials" whom they claimed "were skeptical." According to the Times, "Anyone who has tried to pry information from the federal government may have been surprised on Tuesday by Hillary Rodham Clinton's assertion that in all her emails in four years as secretary of state she never strayed into the classified realm."
The Times actually undercut its own reporting, burying the fact that Clinton issued a statement making clear that "Classified information was viewed in hard copy by the secretary while in the office.
That statement further explained: "A separate, closed system was used by the Department for the sole purpose of handling classified communications which was designed to prevent such information from being transmitted anywhere other than within that system, including to outside email accounts."
The Times' reliance on baseless speculation to insinuate wrongdoing adheres to the framework it established when first reporting on Clinton's use of a personal email account.
The New York Times was already forced to walk back their sloppy reporting on Clinton's emails -- after which the publication's public editor admitted conceded the story "was not without fault" and "should have been clearer about precisely what regulations might have been violated." Despite the initial report's suggestion that Clinton violated federal record keeping rules, the Times' key source later clarified that she in fact did not "violate" the law. Others in the media have consequently retracted their own baseless claims made in the rush to scandalize Clinton's emails after Times' report.
By omitting important information and context from the Hillary Clinton email story, are reporters and pundits guilty of trying to make the episode more interesting and more nefarious than it actually is?
As the press demands answers regarding which private emails Clinton handed over to the State Department and which ones she withheld because she deemed them to be personal in nature, many journalists fail to include relevant information about prominent Republicans who have engaged in similar use of private email accounts while in office, specifically former Secretary of State Colin Powell and former Florida Gov. Jeb Bush.
By omitting references to Powell and Bush and how they handled private emails while in office, the press robs news consumers of key information. It's also material that deflates the overheated suspicions of a wide-ranging Clinton cover-up.
Appearing on ABCs This Week on Sunday, Powell was asked how he responded to the State Department request last year that all former secretaries hand over emails from their time in office. Powell confirmed that he had used private email while secretary but that he didn't hand over any emails to the State Department because his private emails were all gone.
"I don't have any to turn over," he explained. "I did not keep a cache of them. I did not print them off. I do not have thousands of pages somewhere in my personal files." Powell's revelation is important because it puts into perspective the email protocol of a former secretary of state. By his own account, Powell's emails, unlike Clinton's, include his regular communications with foreign dignitaries. What was he emailing them in the lead-up to the war in Iraq? We'll never know.
To date however, both the New York Times and the Washington Post have largely downplayed references to the fact that Powell's private, secretary of state emails are all gone.
Why is Powell relevant to Clinton? Because after she took questions from the reporters yesterday about the email saga, the press focused in on the fact in reviewing her private emails, Clinton found roughly 60,000 messages. She handed over 30,000 to the State Department and determined the other 30,000 were personal in nature and disgarded them.
Those 30,000 emails have now become the key storyline, which goes like this: How can people be assured that Clinton turned over all the pertinent emails when she was the one (or her attorney) who decided which ones were personal, and would be withheld, and which ones were government-related, and would be turned over. Doesn't there need to be an "independent arbiter" to look over all 60,000 emails to decide which ones the State Department gets to keep?
"They were personal and private about matters I believed were in the scope of my personal privacy," Clinton said. "They have nothing to do with work. I didn't see any reason to keep them." That's what the so-called scandal revolves around: Hillary's team decided which emails to turn over and which ones to toss. And that's a deeply troubling development. The press is insistent on that fact.
Multiple media outlets have been forced to walk back and update initial reports scandalizing Hillary Clinton's use of a private email account during her tenure as secretary of state, after The New York Times kicked off the pseudo-scandal in an article the paper later acknowledged was "not without fault."
Even for a Republican White House that was badly stumbling through George W. Bush's sixth year in office, the revelation on April 12, 2007 was shocking. Responding to congressional demands for emails in connection with its investigation into the partisan firing of eight U.S. attorneys, the White House announced that as many as five million emails, covering a two-year span, had been lost.
The emails had been run through private accounts controlled by the Republican National Committee and were only supposed to be used for dealing with non-administration political campaign work to avoid violating ethics laws. Yet congressional investigators already had evidence private emails had been used for government business, including to discuss the firing of one of the U.S. attorneys. The RNC accounts were used by 22 White House staffers, including then-Deputy Chief of Staff Karl Rove, who reportedly used his RNC email for 95 percent of his communications.
As the Washington Post reported, "Under federal law, the White House is required to maintain records, including e-mails, involving presidential decision- making and deliberations." But suddenly millions of the private RNC emails had gone missing; emails that were seen as potentially crucial evidence by Congressional investigators.
The White House email story broke on a Wednesday. Yet on that Sunday's Meet The Press, Face The Nation, and Fox News Sunday, the topic of millions of missing White House emails did not come up. At all. (The story did get covered on ABC's This Week.)
By comparison, not only did every network Sunday news show this week cover the story about former Secretary of State Hillary Clinton emails, but they were drowning in commentary. Between Meet the Press, Face The Nation, This Week, and Fox News Sunday, Clinton's "email" or "emails" were referenced more than 100 times on the programs, according to Nexis transcripts. Talk about saturation coverage.
Indeed, the commentary for the last week truly has been relentless, with the Beltway press barely pausing to catch its breath before unloading yet another round of "analysis," most of which provides little insight but does allow journalists to vent about the Clintons.
What has become clear over the last eight days however is that the Clinton email story isn't about lawbreaking. "Experts have said it doesn't appear Clinton violated federal laws," CNN conceded. "But that hasn't stemmed the issue that has become more about bad optics and politics than any actual wrongdoing." The National Law Journal agreed, noting that while the story has created a political furor, "any legal consequences are likely to prove negligible."
Still, the scandal machine churns on determined to the treat the story as a political blockbuster, even though early polling indicates the kerfuffle will not damage Clinton's standing.
Looking back, it's curious how the D.C. scandal machine could barely get out of first gear when the Bush email story broke in 2007. I'm not suggesting the press ignored the Rove email debacle, because the story was clearly covered at the time. But triggering a firestorm (a guttural roar) that raged for days and consumed the Beltway chattering class the way the D.C. media has become obsessed with the Clinton email story? Absolutely not. Not even close.
The New York Times adopted partisan smears to cast Hillary Clinton as "vulnerable" on the subject of gender, relying mainly on Republican criticisms to undermine her career of advancing women's rights by scandalizing the acceptance of donations to the Clinton Foundation charity from foreign governments which discriminate based on gender. But the Times' own report undermines the suggestion that Clinton's record on women's advocacy has been questionable, and donations have not stopped Clinton from speaking out against countries violating women's rights.
In a March 8 article, The New York Times cast Clinton as "vulnerable on the subject" of gender, citing mainly Republican criticisms to highlight "her family foundation's acceptance of millions of dollars in donations from Middle Eastern countries known for violence against women and for denying them many basic freedoms," to evidence their characterization of the former secretary of state. Despite noting that "advancing women has been" Clinton's "central life's work," the Times nevertheless cited attacks from last month's Conservative Political Action Conference (CPAC), the Republican National Committee (RNC), a former White House ethics lawyer under President George W. Bush, and a Sen. Rand Paul (R-KY) supporter to highlight the Bill, Hillary & Chelsea Clinton Foundation's acceptance of donations from foreign countries, "which the State Department has faulted over their records on sex discrimination and other human-rights issues." The report alleged that these donations "present a difficult appearance problem for a candidate running in part as the embodiment of women's aspirations to equality," turning to Republicans to back the claim:
Republicans quickly zeroed in on the apparent contradiction. Carly Fiorina, the former Hewlett-Packard chief, told a crowd at the Conservative Political Action Conference last month that Mrs. Clinton "tweets about women's rights in this country and takes money from governments that deny women the most basic human rights."
And on Wednesday, the Republican National Committee released a biting video showing President Obama calling political donations from foreign sources "a threat to our democracy" -- and Mrs. Clinton smiling next to several Middle East leaders.
"It's a perfect example of the conflict of interest here," said Richard W. Painter, a White House ethics lawyer under President George W. Bush.
However, the Times' own report undermined their suggestions about Clinton's questionable track record on women's rights. As the paper noted, "At the State Department, Mrs. Clinton emphasized how empowering women and girls could also enhance economies, national security and the overall progress of a country." Throughout her career, Hillary Clinton has continuously worked as champion of women's rights and leadership.
And previous donations to the foundation have not stopped Clinton from vocally criticizing countries on gender discrimination. During her time as secretary of state, Clinton criticized Saudi Arabia, among other Arab leaders, for discriminating against women -- despite the countries' previous donations to Clinton Foundation.
New York Times public editor Margaret Sullivan is right that the Times story last week, which falsely charged that Hillary Clinton might have broken federal rules regarding her email practices was "not without fault." According to Sullivan, "the story should have been much clearer about precisely what regulations might have been violated, and when they took effect."
But Sullivan misses the main point, and in doing so continues to leave the wrong and unfair impression that Clinton might have violated federal rules when she plainly didn't.
In defending the story's charge, Sullivan cites federal regulations from 2009 that "required that any emails sent or received from personal accounts be preserved as part of the agency's records."
As the State Department said last week, in 2014 Secretary Clinton turned over to the department some 55,000 pages of emails from her personal account. Clearly the emails were preserved, as the rules required. They are part of the agency's records, and Secretary Clinton has called on the department to release all of them to the public, an unprecedented act of transparency.
The 2009 regulations contained no real-time preservation requirements, according to the State Department. The time requirements were added to the law that I referenced in my letter to the Times, and which passed after Clinton left office. As such, they are not pertinent to her tenure. Moreover, more than 90 percent of the emails from Clinton's personal account were sent to official State Department email addresses, and thus were preserved in real-time in the agency's records, exceeding the requirements of the law as it existed at the time.
Sullivan failed entirely to confront the fact that the main authority cited by the paper on the Clinton emails, a former top lawyer at the National Archives and Records Administration, said the day after the article appeared that Clinton had not violated the law, undercutting the article's central contention. Indeed, the Times cited no legal authority whatsoever to say a violation had occurred or even might have occurred.
Clearly, what happened here is that the reporter, Michael Schmidt, and presumably his editor, Carolyn Ryan, mistakenly believed that Clinton's email practices violated federal rules, and despite finding no source to back them up, they published the allegation on the Times front page anyway.
I don't know what that is, but it isn't journalism.
In any event, I welcome Sullivan's conclusion that the Times can learn from this controversy by ensuring subsequent stories are "airtight."
Sullivan's reply to my letter can be read in full here.
The New York Times kicked off a pseudo-scandal over Hillary Clinton's use of a non-government email while serving as secretary of state, a manufactured controversy straight out of the GOP's Benghazi witch hunt. While the Times dug in its heels despite significant shortcomings in its reporting, the media piled on with innuendo and reckless speculation that is now being cited by Republicans to justify superfluous Benghazi investigations.