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Marty Lederman @marty_lederman
, 25 tweets, 9 min read Read on Twitter
1/ Thought I'd try to unpack a bit further the source of the controversy & confusion re: the @nytimes' Rosenstein piece.
@adamgoldmanNYT @nytmike @maggieNYT @charlie_savage @AllMattNYT @MarkMazzettiNYT @jacklgoldsmith @just_security @rgoodlaw @DevlinBarrett @mattzap
2/ The upshot is that I suspect a huge part of the problem, and source of the skepticism of many, is--as is often the case--the vague & confusing way that reporters identify and discuss their sources.
3/ There doesn't appear to be any question that RR made the comments about wires and the 25th in one or two meetings on 05/16/17. RR himself doesn't even dispute it--he insists only that “I never pursued or authorized recording the president ...
4/ ... and any suggestion that I have ever advocated for the removal of the President." In my view, then, there's no question that the Times should have reported on the comments--they are newsworthy. The main areas of contention/consternation are, instead:
5/ (i) whether the article should have conveyed more skepticism and equivocation about whether RR was serious -- something that'd dramatically affect the tone and upshot of the account -- and (ii) whether the Times should have disclosed more about its sources' possible motives.
6/ @adamgoldmanNYT and @nytmike leave a very distinct impression they're confident RR was serious. By contrast, @DevlinBarrett and @mattzap at the @washingtonpost emphasize that sources "offered wildly divergent accounts of what was said and what was meant," and ...
7/ ... they emphasize those who insist RR was sarcastic.

Many critics of the Times piece assume RR is right when he says that the Times' sources "are obviously biased against the department and are advancing their own personal agenda." In particular, ...
8/ ... the critics assume the sources are people on the Hill hostile to the Mueller investigation who have read the accounts in McCabe's memos, and who have "played" the Times to advance their agenda.
9/ Other Times reporters say that's absurd. @AllMattNYT, e.g., insists "it’s no plot by pro-Trump forces. It’s good reporting." And @MarkMazzettiNYT writes that considering "the track record of the reporters who wrote it," we shouldn't "care what it 'smells' like."
10/ The story itself, however, says nothing at all about whether the leak was part of a plot by pro-Trump forces. If it wasn't, perhaps @adamgoldmanNYT and @nytmike should have said so expressly, to dispel the natural assumption of readers.
11/ The biggest problem is that the story conveys extreme confidence about RR's serious intent despite (apparently) acknowledging that none of the sources were first-hand, and that the story depends largely on a second- or third-hand account of McCabe's memos, ...
12/ ... which can't answer the key question of RR's intent. The story is based, it says, on interviews w/"several people ... [who] were briefed either on the events themselves or on memos written by F.B.I. officials, including ... McCabe."
13/ It's not unreasonable for many readers of this passage to assume that this was, then, an effort by Mueller critics on the Hill and elsewhere to use the McCabe memos to call into question RR's judgment and his objectivity in overseeing the pending investigations.
14/ Indeed, the *only* account in the story from "a person who was present when Mr. Rosenstein proposed wearing a wire"--a quote offered by DOJ--insists that RR was being sarcastic. The authors plainly do not credit that (purportedly) first-hand account. Why not? They don't say.
15/ They do write that "according to the others *who described his comments,* Mr. Rosenstein not only confirmed that he was serious about the idea but also followed up by suggesting that other F.B.I. officials who were interviewing to be the bureau’s director ...
16/ ... could also secretly record Mr. Trump." That's confusing. Why should we believe these "others" who "described" RR's comments but who apparently did not hear them?
17/ The authors then confidently write that "One participant asked whether Mr. Rosenstein was serious, and he replied animatedly that he was." But they offer no indication at all what the source of that account is.
18/ It sure *sounds* like someone who was present ("he replied animatedly"), but the authors have already appeared to disclaim such first-hand sources. Elsewhere in the piece, they refer to "two people familiar with the discussion."
19/ @DevlinBarrett and @mattzap likewise repeatedly refer to people "familiar with the discussion." What is a reader to make of that? How can one be "familiar" with a discussion w/out having been present?
20/ As I wrote in my earlier thread, at this point it probably doesn't much matter, for purposes of how the account will be exploited, whether RR was being serious or facetious. (I also describe the impact of a possible removal of RR.)

21/ But countless readers now think the Times was snookered and used to advance an agenda, and that the tone of the piece was far too confident about unknown & disputed aspects of RR's remarks.
22/ As it happens, I *do* take seriously "the track record of the reporters who wrote it"--I think they're very good and have warranted a presumption of trustworthiness--and therefore I assume there's some more reliable basis for the confidence in their account.
23/ But what they themselves conveyed about their sourcing tends to give readers reason to rebut that presumption and thus to doubt the bona fides of the article. I recognize that these matters of sourcing are sensitive.
24/ But in this as in many other cases, I think it would behoove the Times and other papers to be less cryptic and try to convey to readers more about their sources--to be clearer about why they should be credited, and (where applicable) about their possible motives for leaking.
Sorry, wrong link there! Here's that earlier post.

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