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  • Misinterpreting a judge’s order, right-wing media have convinced themselves that Michael Flynn is about to reverse his guilty plea

    The latest anti-Mueller bombshell actually amounts to a typo

    Blog ››› ››› MATT GERTZ


    Sarah Wasko / Media Matters

    President Donald Trump’s overzealous defenders at Fox News spent yesterday using a misinterpretation of a standard order from the judge overseeing special counsel Robert Mueller’s prosecution of former national security adviser Michael Flynn to speculate that Flynn’s guilty plea is on the verge of being vacated.

    Flynn pleaded guilty to lying to the FBI in December and agreed to cooperate with the special counsel’s investigation into Russian interference with the 2016 presidential election. But Judge Rudolph Contreras, who accepted Flynn’s plea, subsequently recused himself and was replaced by Judge Emmet G. Sullivan, who issued an order that month directing Mueller to provide Flynn’s lawyers with any evidence they possess that is favorable to the defendant. The disclosure of this information can be required under the Brady rule, named after the 1963 case Brady v. Maryland.

    That’s a huge deal, according to conservative media figures like Fox judicial analyst Andrew Napolitano, who have spent months spuriously attacking Justice Department and FBI officials for their conduct during the Russia investigation. “Why would [Sullivan] want that after Gen. Flynn has already pleaded guilty? That is unheard of,” Napolitano asked on yesterday’s Fox & Friends in a segment featuring the caption, “Will Flynn Reverse His Guilty Plea?” Napolitano then suggested an answer: “He must suspect a defect in the guilty plea. Meaning he must have reason to believe that Gen. Flynn pleaded guilty for some reason other than guilt.”

    Other Fox programs picked up Napolitano’s theory over the course of the day. That afternoon, the Fox panel show Outnumbered portrayed the Sullivan order as an indication of “new questions about the circumstances” of Flynn’s guilty plea, with co-host Katie Pavlich falsely claiming that Sullivan’s order had explicitly told Mueller’s probe that “it’s very clear that you withheld some pretty important information.” And that evening, Fox host Martha MacCallum opened her show over the caption “Flynn Could Flip Guilty Plea,” discussing the order, which she described as “raising eyebrows,” in back-to-back interviews with Jonathan Turley, a law professor at George Washington University, and Napolitano. Turley argued that “it's important not to read too much into this” and suggested it’s unlikely that the order will lead to any changes in Flynn’s plea. Napolitano said Sullivan’s move was very unusual and could indicate improper coercion by the Mueller team but walked back the explicit statement he made on Fox & Friends about Sullivan’s motivation, asking of the judge, “Does he suspect some defect in Michael Flynn's guilty plea? We don't know the answer to that.”

    In this latest salvo in Fox’s monthslong campaign to undermine the Mueller probe by any means necessary, the network is picking up on a theory that ping-ponged through the right-wing media over the last week.

    National Review’s Andrew McCarthy and The Washington Examiner’s Byron York were the first main proponents of the notion that the Sullivan order represents a “curious” or “unusual” turn in the Flynn case. The Federalist’s Margot Cleveland added a new twist over the weekend, arguing that a revised version of the order Sullivan issued Friday suggested that Flynn was about to withdraw his guilty plea. All three pieces have been widely aggregated by other right-wing outlets, far-right trolls, and fake news websites who are all rushing to declare the Flynn guilty plea is in jeopardy.

    Notably, McCarthy and York placed the same sizable caveat in their pieces: In McCarthy’s words, “It could be that this is just Judge Sullivan’s standard order on exculpatory information, filed in every case over which he presides.” But oddly, while such caveats implicitly acknowledge that the story would be much less interesting if Sullivan is among the federal judges who issue standing Brady orders for every one of the criminal cases on their dockets, neither writer seems to have actually bothered to check if that is actually his practice.

    I checked, and it is. As he explained in a 2016 law review article calling for the amendment of the rules of federal criminal procedure to incorporate such disclosures, “I now issue a standing Brady Order in each criminal case on my docket, which I update as the law in the area progresses.” Thus, Sullivan’s action was not “unusual” or “curious,” but simply what he does in every single criminal case he oversees.

    Napolitano and his ilk seem to have picked up the story York and McCarthy put forth, but stripped off their caveat and instead asserted as fact that Sullivan’s action must be because he suspects some sort of malfeasance from Mueller, or even because, as Napolitano suggested, Flynn was not guilty to begin with.

    The Federalist’s Cleveland makes a slightly different argument. On Friday, after the publication of York’s and McCarthy’s pieces, Sullivan issued a second, slightly different order. Cleveland focuses on this second order, which she writes “added one sentence specifying that the government’s obligation to produce evidence material either to the defendant’s guilt or punishment ‘includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.’” According to Cleveland, this is a big deal “because it indicates that, if the government did not provide Flynn material evidence during plea negotiations, Flynn has grounds to withdraw his plea.”

    Cleveland concludes that this second order reveals that “a motion by Michael Flynn to withdraw his guilty plea based on government misconduct is likely in the works,” even though Cleveland acknowledged that even in that scenario, “the Supreme Court has never addressed the question of whether a defendant may withdraw a guilty plea if the prosecution withholds exculpatory evidence during plea negotiations.”

    It’s theoretically possible Sullivan really has come to suspect some sort of improper behavior by the Mueller team. But the docket in the case provides a far simpler, more banal explanation for what is happening.

    As legal blogger and attorney Susan Simpson noted in a tweetstorm about the Sullivan conspiracy theories, Sullivan explained that in December, he had accidentally entered an older version of the Brady order that he issues in every criminal case, rather than the “current version,” and was seeking to remedy that error. It’s not a bombshell, it’s effectively a typo.

    The right-wing claims that Flynn’s guilty plea may soon be vacated come amid a broader, furious effort to vindicate him.

    Flynn’s fierce defenses of Trump, declaration that Hillary Clinton should be locked up, and willingness to interact directly with right-wing conspiracy theorist trolls like Mike Cernovich made him a hero to the dregs of the “alt-right.” And over the last month, those conspiracy theorists have rallied behind him.

    Longtime Trump adviser Roger Stone kicked things off on February 5, claiming on Infowars that Flynn’s lawyers were on the verge of filing a motion to dismiss the charges against him on the grounds that “that Assistant FBI Director Andrew McCabe told a teleconference of law enforcement officials, ‘first we fuck Flynn, then we fuck Trump.’” Stone claimed that pro-Trump outlets The Hill and Circa had confirmed that quote from McCabe, a longtime target of Trump supporters, but I found no evidence to support that. The quote does, however, appear in a March 2017 piece from the website True Pundit, which is notorious for publishing fabrications and fake news stories.

    “Pizzagate” conspiracy theorist Jack Posobiec has also been a leading Flynn champion, highlighting many of the reports about the Sullivan orders to buttress the #ClearFlynnNow campaign Posobiec has been promoting all month. According to Posobiec, the campaign is needed because “Flynn was framed.”

    That online campaign is part of the “increasingly bold calls for presidential pardons” Trump’s supporters are demanding for those implicated by the Mueller probe, especially Flynn, Politico reported February 19.

    Meanwhile, as the pro-Trump media struggle to construct an alternate reality in which the Mueller probe is constantly on the verge of collapse, yesterday also brought the news that lawyer Alex van der Zwaan had pleaded guilty after Mueller charged him with lying to FBI investigators about other aspects of the Russia probe.

    van der Zwaan -- who has worked on behalf of indicted former Trump campaign chair Paul Manafort and whose father-in-law is a Russian oligarch -- joins 18 other people and three companies who have been indicted or have pleaded guilty due to the Mueller investigation.

  • Trump's lie about Manafort's illegal activity predating his campaign came from Fox News

    Blog ››› ››› ZACHARY PLEAT


    Sarah Wasko / Media Matters

    In response to the news that President Donald Trump’s former campaign chairman Paul Manafort was indicted for, among other things, money laundering and acting as an unregistered agent of a foreign principal, Trump tweeted a Fox News talking point that Manafort’s alleged criminal activity occurred before he joined the campaign. But the first page of the indictment states that in an attempt to hide payments he received from Ukraine, Manafort was laundering money at least through the election year;  Manafort served as Trump’s campaign manager between March and August 2016.

    The first page of the indictment reads (emphasis added):

    MANAFORT and GATES generated tens of millions of dollars in income as a result of their Ukraine work. In order to hide Ukraine payments from United States authorities, from approximately 2006 through at least 2016, MANAFORT and GATES laundered the money through scores of United States and foreign corporations, partnerships, and bank accounts.

    Trump falsely claimed on Twitter that Manafort’s alleged criminal actions didn’t occur during his time with the campaign:

    Fox News had repeated this false talking point several times prior to Trump’s tweet. On Fox & Friends earlier this morning, co-host Steve Doocy commented that Manafort had “some suspicious wire transfers back in 2012, 2013, many years before he joined Trump.” Doocy later seemed to suggest the White House adopt the talking point that Trump eventually tweeted: “But ultimately, I would imagine the people in the White House are going to start talking later today about, ‘Well, if that's all they've got, something -- the guy who ran the campaign last year, something he did 5, 10 years earlier, we're OK.’”

    It’s been well documented that Trump regularly watches Fox’s morning programming. Even this morning, before details of Manafort’s indictment were reported, Trump tweeted his thanks to a guest on Fox & Friends for his performance on the show.

    The same talking point was repeated later on Fox News, before Trump’s tweet. On America’s Newsroom, Fox contributor Byron York said, “These are all alleged crimes that, if they took place, took place years before he joined the Trump campaign.” A few minutes later, Fox guest David Hoppe said the indictment “is for things that happened well before Paul Manafort was ever involved with the Trump campaign.”

    Some Fox personalities also shared this talking point on Twitter prior to Trump’s tweet:

  • This is how Fox News reacted to Trump pardoning disgraced former Sheriff Joe Arpaio

    ››› ››› MEDIA MATTERS STAFF

    On August 25, President Donald Trump exercised his pardon power for the first time, choosing to pardon former Sheriff Joe Arpaio of Arizona’s Maricopa County, who was convicted of criminal contempt of court in July. Fox News’ varied responses to the president’s decision have included calling the judicial process a “persecution,” dubiously comparing the pardon to past pardons and commutations issued by former Presidents Bill Clinton and Barack Obama, and complaining about Republican members of Congress who “are not backing the president” on his decision.

  • Media Fall For And Reinforce Trump’s Spin On “Buy American, Hire American” Executive Order

    ››› ››› BOBBY LEWIS

    Multiple media outlets and figures uncritically reported on President Donald Trump’s planned executive order promoting policies that encourage the federal government to “buy American” and “hire American” wherever possible. These outlets and figures did not note that the executive order only calls for a review of current policy, and does not meaningfully change it, and some other outlets buried those crucial details in their reporting.

  • Will Fox Continue Its CBO Smear Campaign With More White House Talking Points?

    Fox News Spent Days Attempting To Discredit The CBO In Advance Of Its Report Outlining That Millions Will Lose Health Insurance Under GOP Plan

    Blog ››› ››› ALEX MORASH

    Fox News pushed White House talking points attacking the Congressional Budget Office (CBO) in an attempt to discredit the nonpartisan scorekeeper before it released today’s report projecting the effects of the Republican plan to repeal Obamacare -- the American Health Care Act (AHCA). The report’s devastating findings -- that up to 24 million people would lose their health insurance coverage over the next decade under the GOP health care plan -- are now public. Will Fox News continue to borrow White House talking points to carry water for the disastrous plan?

    On March 13, the CBO reported that the number of Americans without health insurance would grow to a staggering 52 million people by 2026 under the GOP’s health care plan, AHCA, compared to an estimated 28 million who are projected to remain uninsured under current law. President Donald Trump’s administration and Republican leaders in Congress had tried to smear the CBO -- the nonpartisan research arm of Congress tasked with analysing the budgetary and economic impacts of legislative proposals -- in advance of the widely anticipated report, which many correctly predicted would find that the GOP plan will throw millions off their health insurance.

    White House officials began a campaign to discredit the CBO on March 8 when during a press briefing White House press secretary -- and renowned liar -- Sean Spicer questioned the work of the nonpartisan researchers at CBO, telling reporters that “if you're looking at the CBO for accuracy, you're looking in the wrong place.” This was an about-face from what the director of the Office of Management and Budget (OMB), Mick Mulvaney, stated on MSNBC’s Morning Joe earlier that day when he claimed “the only question” on the CBO scoring was whether it will it be “really good” or “great” for the Trump administration. Despite his initial optimism, Mulvaney too joined in on attacking the CBO on the March 12 edition of ABC’s This Week, downplaying the effectiveness of the office’s analysis and misleadingly claiming that the agency did not score the Affordable Care Act (ACA) -- also called Obamacare -- accurately. Secretary of Health and Human Services, Tom Price, also blasted the CBO on the March 12 edition of NBC’s Meet The Press.

    In the hours leading up to the CBO’s March 13 report release, Fox News figures attempted to discredit the organization with talking points straight from the Trump administration. Co-host Brian Kilmeade claimed on Fox and Friends that the CBO was tricked into scoring the ACA inaccurately because it did not score the mandate as a tax, adding that the CBO fell “hook, line, and sinker” for some sort of Democratic plan to bring about single-payer health care. On America’s Newsroom, Washington Examiner columnist Byron York claimed the Trump administration’s allegation that CBO had inaccurately scored the ACA years ago was “absolutely true.” On Outnumbered, co-host Melissa Francis claimed “the CBO does get everything wrong” and complained that the CBO underestimated the cost of Medicaid expansion under the ACA. On Fox Business’ Varney & Co., host Stuart Varney’s anti-CBO talking points were rebuffed by Harvard economist and former CBO director Douglas Elmendorf, who pointed out that the office correctly predicted that the number of uninsured would fall under ACA, it accurately projected premium increases under the law, and it actually overestimated the long-term cost of enacting Obamacare.

    As soon as the CBO’s devastating report on the short- and long-term effects of repealing Obamacare and enacting the AHCA was released this afternoon, Fox News turned to discredited New York Post columnist, former Trump economic adviser, and serial health care misinformer Betsy McCaughey to double down on its campaign against the CBO. McCaughey slammed the report as “implausible” for finding that tens of millions would lose health insurance coverage under the Republican health care plan, but happily accepted the same report’s finding of marginal deficit reductions stemming from the repeal of health insurance subsidies to low-income Americans. From the March 13 edition of Fox’s Your World with Neil Cavuto:

    According to an independent analysis of the CBO’s Affordable Care Act estimates from the Commonwealth Fund, the office’s health care policy analysis regarding the ACA actually “proved to be reasonably accurate” and was thrown off by Supreme Court decisions and GOP political obstruction that it had no way to forecast. Even James Capretta of the conservative American Enterprise Institute warned that it may “tempting for GOP leaders to say CBO is wrong” but it would be difficult to “make a credible case” that the repeal plan would not reduce the number of people with health insurance.

  • The Four Ways Right-Wing Media Reacted To Trump’s Alleged Immigration Shift

    ››› ››› CAT DUFFY

    The right-wing media reactions to Republican presidential nominee Donald Trump’s claim that he is considering softening his position on immigration, varied wildly, including criticizing his shift as a mistake, slamming his lack of policy consistency, praising him for “seeing the light on immigration reform,” and simply ignoring his latest comments entirely.

  • Trump's Non-Apology Is Being Spun As His Latest Presidential Pivot

    ››› ››› NINA MAST

    Media again hyped a “pivot” and a “new tone” for Republican presidential nominee Donald Trump after he said in a speech read off of a teleprompter that he “regret[ed]” “sometimes … say[ing] the wrong thing” and using rhetoric that “may have caused personal pain.” Trump gave the speech hours after his spokesperson suggested that Democratic presidential nominee Hillary Clinton might have a language disorder caused by brain damage.