Defending The Times in a perilous age

The New York Times, which has won more Pulitzer Prizes than any other news organization, is not afraid to speak truth to power. But that means it also faces legal scrutiny from the subjects of its hard-hitting stories and battles with governments and others over public documents. It is currently facing a defamation suit from the Trump reelection campaign over a 2019 op-ed that argued that the Trump camp had made an “overarching deal” with Russian leaders for help with the 2016 election in exchange for a more pro-Russian foreign policy. And Fox News show host Sean Hannity is threatening a libel suit over three opinion columns criticizing his coverage of the coronavirus outbreak. The Times is fighting with the administration over access to documents related to its decision to withhold U.S. military aid from Ukraine last year while the president pressed Kiev to investigate his chief political rival, Joe Biden. In the middle of all this sits David McCraw, deputy general counsel for The Times. A lecturer at Harvard Law School this semester, McCraw, who has been with the paper since 2002, spoke with the Gazette about the surprising range of his duties and the changing legal challenges he and his small staff have faced in the past two decades.

Q&A

David McCraw

GAZETTE: I think many people assume the top attorney for The New York Times spends most of the day making sure news stories are protected from lawsuits. But I understand your portfolio is much broader than that.

McCRAW: I tend to put my job into a series of buckets. One bucket is the one that you mentioned, which is that we spend some time looking at stories in advance of publication. We can’t stop people from suing us, but we would like to stop them from having great claims against us. That is a really important part of the job. But it’s not that time-consuming. More time-consuming is the very broad portfolio of Freedom of Information lawsuits that we’re bringing. We’ve done more than 65 lawsuits against the federal government, several against state and city government agencies. In the last eight years, and in the Trump administration, since 2017, we’ve been filing a suit a month.

We also deal occasionally with subpoenas when they come in for reporters’ sources or reporters’ notes. It doesn’t happen very often. When it does happen, we obviously push back. I’m also in charge, ultimately, of security for our reporters at foreign bureaus. I have a security adviser who reports to me; he’s overseeing reporters as they go out. And we’re doing everything we can to make sure people are safe. I was the response manager for two kidnappings and a variety of other events of mayhem in the world. And, as deputy general counsel, I do corporate things, as well.

GAZETTE: How has the role of lawyers and litigation in the field of journalism changed since you started at The Times in 2002?

McCRAW: When I started, The Times was a much bigger company. They owned newspapers like The Boston Globe [and] smaller newspapers around the country. That meant that we were dealing with libel suits here and there. A lot of them didn’t add up to much, but we had to deal with them. At some point, we divested everything but The Times proper and nytimes.com. Pretty soon, libel suits became pretty uncommon — a couple of suits a year, and neither of those suits were likely to be that difficult.

In the last year, we’ve seen a rise in the number of libel suits. Almost all of those suits are brought by people who have a political agenda, and libel’s now become one of those tools that people who disagree with us are using. The Trump campaign sued us Feb. 26, so that’s one. They’re individuals, mostly: [a] Fox commentator; a fellow who’s a leader of the hard right, anti-immigration movement; someone who was a friend of Gen. [Mike] Flynn’s. They challenge our reporting; we need to push back.

GAZETTE: How much of an increase?

McCRAW: We’ve had in the past few months, probably four lawsuits. So it is an uptick. How much of one is hard to say because we’re dealing with small numbers.

GAZETTE: Given President Trump’s stated desire to “open up the libel laws,” is there a concern that the landmark 1964 decision, New York Times Company v. Sullivan, which protects news outlets from defamation claims by public officials, is in danger of being struck down or diluted?

McCRAW: Last year, famously, Justice [Clarence] Thomas wrote an opinion in a denial of [certiorari, or requesting the court hear a case], saying that Sullivan should be undone. Maybe I’m an optimist beyond all reason, but it looks to me like that glass is one-ninth full. No one else signed on to that opinion. The conservatives on this Supreme Court have been pro-First Amendment. They have a libertarian view of it, and they have stood by that libertarian value. I can’t tell you that the [federal] district court judges appointed by President Trump share that, but I’m hopeful that many of them do. I’m hopeful that many of them also believe in that conservative value of precedent, that if the Supreme Court said it, that should be the rule of law under which we conduct ourselves. So I’m not yet concerned about that. I don’t see an undoing of Sullivan. I do think that there’s probably what we sometimes talk about as the “benefit of the doubt” [that] may not be as strong as it [once was]. There was a time when, if a newspaper made a mistake, that judges and juries were predisposed to say, “I know that newspaper. I know they try to get it right. And if they say they made a mistake, they made a mistake.” I would not be surprised to see juries and judges be more skeptical of the media as a result of the criticism that’s taken place. They may have second thoughts about whether there was truly a mistake or whether there was an intent to get something wrong.

GAZETTE: So what are the concerns if there’s little chance that news outlets like The New York Times or The Washington Post could end up facing an existentially threatening lawsuit, as did the website Gawker in the 2016 Hulk Hogan case?

McCRAW: I’m not personally seeing a lot of strategic litigation in this area. What I see is people bringing cases that probably aren’t that meritorious, that probably wouldn’t have been brought before. They’re hoping that there’s a change of attitude among judges and juries, and that they’re going to win on that. I don’t think they’re looking to change the law as much as to try to make the law work in favor of them as plaintiffs.

There’s obviously a great concern about privacy today. The Hogan [sex-tape] case was, to my mind, an outlier. I have no question that had Gawker had proper insurance, that would have been appealed, and they would have won. That verdict would not have stood. They didn’t have insurance, so they went out of business.

The third piece is where I would really focus my concern, which is going after leakers. We had, for a very long time, a system that I think of as “a bargain of self-restraint.” The prosecutor didn’t bring those cases; newspapers and news organizations were responsible to try to make good decisions about what they published, tried to make sure they published in the public interest. I think you’re seeing a breakdown of that bargain. You now see the government, starting with the Obama administration, bringing more cases against leakers. That’s been carried on in the Trump administration. There’s no question that government officials, government employees break the law when they disclose classified secrets. But prosecutors have historically stood down when it did not appear to jeopardize national security, and there was a public interest component. I think some of that’s been lost, and the attack on leakers will impoverish all of us in what information we get.

You don’t have to prosecute every leaker to silence lots and lots of employees. You take on an employee here, an employee there, others get the message, and they’re less likely talk to reporters. I think it’s a very bad development.

GAZETTE: You say The Times has stepped up its Freedom of Information Act (FOIA) lawsuits against the government. What prompted that uptick in filings?

McCRAW: Toward the end of the Bush administration, we felt that, after 9/11, getting information was getting harder. We started a program where we brought in a new lawyer on a one-year basis, coming out of law school or out of clerkships, and to use that position to drive a very aggressive FOIA practice. That continued in the Obama years. And from our standpoint, there was very little change in terms of what we were receiving. The Obama administration tried to give fuller explanations of why they were saying no, but they were still saying no. The Trump administration has operated pretty much like other administrations. There is a tendency within bureaucracies to prefer secrecy and to prefer being left alone [as opposed] to disclosing to the public. If you’re a FOIA officer at a federal agency, saying no has very few consequences; saying yes and releasing documents that your betters don’t want released can be a problem.

GAZETTE: The current administration has made broad claims of executive privilege for virtually any communication the president has with anyone inside or outside of government to withhold documents from journalists and even Congress. They have also used National Security Agency computers to shield certain information, notably the transcript of Trump’s calls with the president of Ukraine, from discovery. How do news organizations gain access under these circumstances?

McCRAW: FOIA was intended to be a citizen’s tool, and if the requestor prevails in court, the requestor is entitled to legal fees. The unfortunate truth is that that’s still a bit of a casino. You don’t know if you’re going to win your case; you’re going to have to spend the money on lawyers up front. And then you have to bet on the court to recognize that you’re entitled to your fees if you win. Most people aren’t going to take that bet. And I think that’s one of the reasons why organizations like The Times play an important role in the information ecosystem. We want to press these issues, and when we can, get good precedents that will have a positive effect for those who come after us and make requests for similar things.

The national security part’s really hard. The law gives the government great power to classify and keep things secret. We continue to try to press the boundaries of that. I argued, not long ago, in the Second Circuit, the astonishing question of whether the president can declassify information by tweets. We thought a presidential tweet had revealed a national security secret, and we thought that, as a result of that revelation, we are entitled to know more about the program he tweeted about. It dealt with the arming of the Syrian rebels. We’ll see what the Second Circuit says.

We just finished briefing a case in the D.C. District Court over the communications between the White House and [Office of Management and Budget] about the [withheld Ukraine defense] funding. But the cases are really hard because the law really supports the government’s right to classify. The courts have taken a very narrow view of [executive privilege] waiver. There are cases where people in the government have spoken about classified topics and the courts have still upheld the right of an agency to not reveal things to us.

GAZETTE: Security, not just for reporters working overseas, but here in the U.S., has become an urgent matter in the news business, from the surveillance of and physical safety of staff, to online threats and harassment of journalists, often by individuals but sometimes organized or promoted by political groups supporting the president. Times reporters and editors are often the targets of these acts. This is now part of your purview?

McCRAW: Every day, threats against reporters are an attempt to intimidate the press. It’s just that simple. And we take it very seriously. Sadly, we have had to ramp up our security apparatus. We now have blockades outside our building in New York to prevent truck bombings. We have installed a variety of security measures within the building. We have a team of people who work with reporters when they get online threats. There’s no way around that other than to think of it as an attempt to silence people, to make people scared. Many of the threats online, most of them, will never end up in any sort of actual harm. Most of them are by people who are small and feeling that, with being anonymous, they can threaten women. And more often than not, it’s women who are being threatened. But they don’t tell you when they’re serious and when they’re not, and so we have to take all of them seriously. You mentioned the more directed threat of surveillance of reporters and investigations. That certainly was one of the things that Jodi [Kantor] and Megan [Twohey], in doing their reporting on Harvey Weinstein, faced.

GAZETTE: And that threat was not by the proverbial 400-pound guy sitting on his bed in New Jersey, but by Black Cube, a firm launched by former Israeli intelligence members. A serious operation.

McCRAW: That is. And, when I found out that was going on, it was stunning. It was shocking to see that that Weinstein, through his lawyers who also happened to be our lawyers, had taken it to that level.

GAZETTE: What should journalists conclude from the Trump administration’s response, or lack of response, to the Jamal Khashoggi murder? Does it signal to other governments that they’ll face no punishment for harming U.S. journalists or worse, that the way to please Trump might be to harm a reporter from an outlet he doesn’t like?

McCRAW: One of the things that has historically been true of every administration until this one has been they have thought it was important, as part of foreign policy, to talk about American values, and particularly, the rule of law and the value of freedom of the press. We didn’t have great relationships with lots of administrations. But if we had a reporter who was being harassed or otherwise in trouble with a foreign government, we could count on the embassy to stand with us. And I think that foreign governments would decide that they didn’t want to risk foreign aid; they didn’t want to risk whatever relationship they have with the United States by either oppressing their own reporters or international reporters who are covering that country. Now, bad things happen and some of these regimes will never get the message. But it is unfortunate when the U.S. government’s message, implicitly or explicitly, is that going after the press is OK by us. Certainly, if the head of a foreign government wanted to oppress the local press [or] make it hard for international reporters to work there, I don’t think that leader would be stalled by a concern that “maybe the United States government will disapprove of what I’m doing.”

We depend on those reporters working in very dangerous places, often in isolated conditions, to report on dangerous places. We’re not looking for the U.S. embassies to run rescue missions. We are looking for the State Department to remind people that freedom of expression is an important value and that it’s not just an American idea that ends at our borders. It is a global norm, pushed by advocates for the rule of law, across the world. And I think a clearer voice on that would do an incredible amount of good.

This interview has been edited for clarity and length.