Is It Ever OK for Journalists to Lie?

James O'Keefe, of Project Veritas, speaks at on the Southern Methodist University campus in Dallas, on Wednesday.

James O’Keefe, of Project Veritas, speaks at on the Southern Methodist University campus in Dallas, on Wednesday. | AP Photo

Fourth Estate

What the latest Project Veritas flop can teach us about undercover media work.

Project Veritas went undercover and got buried in its own muck this week. Although the organization garnered few defenders inside or outside of journalism, its nutty ploy reprised the century-and-half-old debate over the uses of this kind of deception in reporting.

Veritas had previously punk’d lefty activist groups and non-journalistic employees at NPR. But in its attempted sting of the Washington Post, Veritas went directly at the paper’s reporters with a female operative selling the fictitious story that she had been impregnated by Alabama senatorial candidate Roy Moore as a teenager. The Post’s reporters saw through her flimsy deceptions, counter-stinging her and Veritas with a bundle of fine reporting and thus proving the opposite of the organization’s hypothesis: The Post had no overwhelming bias against Moore, and it exercised skepticism and thoroughness in reporting an allegation brought to its attention.

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While outrageous, the depth of Veritas’ undercover deceptions is not unprecedented, even in contemporary journalistic circles. In 2007, investigative journalist Ken Silverstein went undercover for Harper’s magazine as a business executive who intended to hire lobbyists to skirt the law in helping him reform Turkmenistan’s poor international image. In 1992, ABC News producers told Food Lion a passel of lies to secure jobs at the supermarket so they could film a story about the chain’s substandard health practices. In 1963, Gloria Steinem submitted a fake name and Social Security number to get a job as a Playboy bunny for her exposé in Show magazine.

In the most famous journalistic sting of the past half-century, the Chicago Sun-Times purchased a bar in downtown Chicago, renamed it the Mirage Tavern, and turned it over to reporters to run as a “honey-pot” for crooked city and state inspectors seeking payoffs. The resulting 25-part series, published in 1978, was nearly awarded a Pulitzer Prize until the board, spurred by objections by Washington Post Executive Editor Ben Bradlee, blocked the honor on the grounds that its methods were too unethical to merit an award.

The profession has yet to chisel the accepted rules of undercover reporting into stone, but a consensus has formed in recent decades that basically prohibits the direct telling of lies to get a story. So, when presumed Veritas operative Jaime Phillips allegedly lied to the Post about Moore getting her pregnant, and urged the reporters to write the story, she crossed the line. But what she’s alleged to have done—lied in the service of a story—is not without precedent in modern journalism. Reporters have posed as high school students, enlisted in the Ku Klux Klan, faked insanity to be admitted into mental hospitals and donned disguises while chasing stories. Jessica Mitford repeatedly pretended to be shopping for funeral services for a dying aunt while doing the research for The American Way of Death. In All the President’s Men, Bob Woodward and Carl Bernstein confess to having lied to sources and to having impersonated one of the figures they were investigating.

Such underhanded practices are largely frowned upon these days as unethical. But lying is often the lazy, unimaginative way to get the story. Did ABC News producers need to lie on their Food Lion job applications (giving false references and misstating their educational and employment backgrounds)? Probably not. In his working-inside-a-prison exposé, Mother Jones reporter Shane Bauer kept on the kosher side of ethics by using his real name and his genuine Social Security number in his job application, while listing the magazine’s parent organization, the Foundation for National Progress, in the employment history section. Tony Horwitz did the same for a 1994 Wall Street Journal story about a poultry processing plant, giving the newspaper’s parent corporation, Dow Jones, as his employer.

A second kosher rule of undercover reporting dictates that a reporter may not create the very conditions he then exposes. In the Silverstein and Mirage Tavern examples, journalists created opportunities for unethical and criminal behavior that might not otherwise exist. A less morally compromised version of the Mirage story would have had the Sun-Times detecting the same crimes but bars not owned by the paper. Proponents of aggressive undercover reporting justify their methods by insisting that some kinds of investigative work can’t be done unless reporters insert themselves as fake players in the process. They’re probably right. It’s difficult to report on how sleezy lobbying and influence-peddling can be unless you insert yourself in the story. But if the press starts sanctioning the telling of lies and staging scenarios to get stories, what’s the next step? Wiretapping? Break-ins? Extortion? The employment of call girls? Other assorted dirty tricks? All of these methods would reap rich results, but at a cost that’s morally prohibitive. (And sometimes legally, too—just ask Andy Coulson.)

Lying and breaking the law are rightly considered the dark arts of journalism. But that doesn’t mean reporters must pretend to be Boy Scouts in their work. Nearly every journalist practices “deception lite” techniques that don’t rise to lying, lawlessness or even misrepresentation. For instance, when interviewing, some journalists bluff their targets or play stupid to get subjects to volunteer information. Totally legit. Others deliberately create uncomfortable silences for their subjects to fill. Observing people in a public place without first making an introduction? OK. Entering an unlocked office or workplace during business hours without first requesting formal permission? Sure. Pretending to have been impregnated by Roy Moore decades ago? No.

Soiled by its failed attempt to prove that the Washington Post is a corrupt news organization, what can Project Veritas do to redeem itself? To begin with, it could surrender its hidden cameras, its disguises and other concealments and the aliases it gives some of its operatives. The established rules of journalism aren’t that oppressive. Even the high priests of journalistic ethics at the Poynter Institute allow for pure deception, high misrepresentation and hidden cameras in reporting. The circumstance must be isolated; the information gathered must be profound; all other alternatives must have been exhausted; the journalists must be willing to disclose their deceptions and justify them; and the harm prevented by the scoop must outweigh the harm caused by the deception.

Whatever the Washington Post’s faults and biases—and they exist—the levels of dishonesty and cheating used by Project Veritas may have contaminated the group beyond salvage. In general, you can almost never trust a liar. In specific, you can never trust an organization whose first choice is to lie.

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Disclosure: Ken Silverstein is a friend. Brooke Kroeger wrote a whole book about undercover reporting, which I reviewed in 2012. See also Kroeger’s splendid database on undercover reporting. Send notes from undercover assignments to Shafer.Politico@gmail.com. My email alerts do overcover reporting only. My Twitter belongs to the Boy Scouts. My RSS feed recently joined the Satanic Boy Scouts.

Jack Shafer is Politico’s senior media writer.

http://www.politico.com

Why the ‘fix’ to Congress’s sexual harassment policies could backfire

As allegations of sexual harassment have reached the halls of Capitol Hill, Congress is turning its attention to its own sexual harassment policies, which let lawmakers to use government funds settle harassment complaints in secret. Though the accusations against Rep. John Conyers have made the biggest headlines, Congress’s Office of Compliance has paid out $17 million over the past 20 years in 264 settlements for various infractions, including sexual harassment. House Republicans have introduced a bill to publicize the names of lawmakers who reach any such settlements and to prohibit settlements from using taxpayer money.

The change is pitched as a reform to bring transparency and accountability to a secretive process that lets perpetrators get away with bad behavior. But as a civil rights lawyer whose firm has represented numerous victims of discrimination and harassment, including victims employed by members of Congress, I can assure you that this proposal is dangerous. Whether intentional or not, the bill punishes victims of harassment who would come forward in the future and who have come forward in the past and would make it less likely that victims would come forward to make claims in the future.

The legislation makes two major changes. First, the proposal would retroactively eliminate the confidential nature of settlements that have been made in years past, an effort to expose lawmakers who have acted inappropriately. But this change would hurt the victims as much or more than the lawmakers. The victims often desire that confidentiality because it protects them from the media frenzy that follows when members of Congress are the subject of discrimination and harassment lawsuits. Confidentiality also helps those victims get their next jobs after (hopefully) extricating themselves from the discriminatory harassing environment. The Constitution frowns on retroactive laws such as this because they overrule the expectations and settled legal rights of both parties. My clients expected that these settlements would stay private; in some cases, they wouldn’t have agreed to the settlement if they knew it would eventually become public. It is a breach of trust for Congress to change the rules around the settlement now and force these victims into the public sphere.

Second, and more important, the proposal prohibits taxpayer money from being used to pay settlements or verdicts against members of Congress who discriminate or harass their employees. While that may satisfy a knee-jerk need to hold lawmakers personally responsible for discrimination and harassment, it likely deprives victims of the chance of ever recovering the damages to which they are due.

Members of Congress rarely have the hundreds of thousands of dollars that are typically paid out in meritorious discrimination and harassment claims. If enacted, the law would effectively require victims to chase lawmakers to their home district to attempt to have local federal or state courts recognize the lawmakers’ liability and then go through byzantine debt collection proceedings, such as attempting to freeze assets and bank accounts and garnish the lawmakers’ wages in order to collect. In many cases the proposed law would leave the victim with an empty and unenforceable judgment or settlement because the Congressperson simply does not—and never will—have the financial means to pay.

Even on a theoretical level, this proposal doesn’t make sense. In law, the concept of respondeat superior holds that the employer is responsible for the actions of its employee when the employee causes harm to others. The concept has been a part of our legal system since its inception, and it can be traced in early Roman and Germanic Law and the English Common Law. We do not sue the fast food cook for the nail in our hamburger, nor do we sue the delivery driver for running us over in the cross walk. And we certainly do not sue the pilot of the plane that crashes for our lost loved ones. This makes sense on two levels: First the delivery driver, or the airline pilot, or the fast food cook would not be in the position to hurt us unless the employer hired them, trained them (or failed to train them) and gave them the tools or authority that they used to hurt us. Second, the employee is rarely in a position to make the victims whole by paying them damages and otherwise compensating them for the harm done.

In the context of Congress, the American people are responsible for placing lawmaker in the position to discriminate against and harass their victims. A lawmaker would not be harassing his or her staff if we had not elected that person in the first place. Every lawmaker is our employee. Under respondeat superior, we—the public—are responsible for paying any penalties for a lawmaker’s inappropriate behavior. If we do not want to have to pay the damages, then—just as we expect employers to hire and train their employees responsibly—we should do a better job choosing and training the lawmakers we elect.

If Congress wants to force lawmakers to personally pay any harassment settlements, lawmakers could be required to repay the treasury for any damages and settlements that are funded by taxpayer dollars. In fact, such a policy could be an additional deterrent to discrimination and harassment while making the public (not the victim) the debt collector against the offending lawmaker. Most importantly, this reform would still ensure that the victims receive the justice they deserve.

Les Alderman is a founding member of the Washington D.C. law firm of Alderman, Devorsetz & Hora PLLC.

Authors:
Les Alderman

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Murphy vows to work with New York, California to fight GOP tax bill

Phil Murphy is pictured. | AP Photo

Gov.-elect Phil Murphy said his state would be “screwed” if the proposal becomes law, labeling it “a tax hike for millions of people in New Jersey” and calling it “unconscionable.” | AP Photo

TRENTON — New Jersey Gov.-elect Phil Murphy vowed on Thursday to do “whatever it takes” to fight the Republican tax bill under consideration in Congress, saying he’ll work with California and New York to file a legal challenge if the “devastating” measure becomes law.

“We will tear up the floorboards,” Murphy, a Democrat who won a double-digit victory this month, told reporters in Trenton. “We will exhaust every available means to fight back — legal and otherwise.”

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Murphy said his state would be “screwed” if the proposal becomes law, labeling it “a tax hike for millions of people in New Jersey” and calling it “unconscionable.”

The governor-elect said his transition team has been in contact with both states in recent days, and he referenced a term that’s been used by New York Gov. Andrew Cuomo: “Double tax,” which refers to the idea that people would be taxed twice on the same income if the federal government eliminates a deduction for state and local taxes.

“I’m not a [constitutional] lawyer, I’m not smart enough to know whether that’s accurate or not,” Murphy said. “But we are also already engaging our team within our operation with legal scholars around the state and, if we need to, around this country to figure out what it means.”

Cuomo has been sounding the alarm on the tax bill for more than a month, appearing with Sen. Chuck Schumer at a press conference in an Albany suburb and hosting a joint conference call with California Gov. Jerry Brown.

Unlike 1986, when leaders from those states united to beat back the elimination of the so-called SALT deduction, four of the nine Republican House members from New York supported the bill. Cuomo dubbed them “Benedict Arnolds.”

In New Jersey, just one of the five Republican members of the House delegation — Rep. Tom MacArthur — voted in favor of the bill when it passed earlier this month. All other members of the state’s congressional delegation, including both U.S. senators, oppose the bill.

The House version would preserve part of the SALT deduction, allowing people to write off up to $10,000 in property taxes. The Senate version would eliminate SALT entirely.

For Murphy, the proposal doesn’t just pose a threat to the bottom lines of many constituents but also to his broader agenda, which would require him to raise taxes more than $1 billion a year.

The governor-elect, who campaigned on the idea of making the state’s economy “fairer,” wants to raise taxes on millionaires and do so within his first 100 days. Senate President Steve Sweeney, a fellow Democrat, says he’s not sure if he’ll be able to move ahead with the increase in income taxes until he understands the impact of the federal tax bill.

Murphy, who spoke to reporters after delivering an opening statement at a meeting of a transition working group focused on New Jersey’s economy, said his temperature had gone up in recent days as it become more likely that the Senate may be able to pass the tax bill.

The bill, he said, was “put together under the cover of night,” and that gave him hope it would have big flaws that would present “openings” for legal action.

“This is a complete and utter outrage, and I don’t know how else to say — we ain’t going to stand for it,” Murphy said.

He said he was in close contact with all of the Democratic members of the state’s congressional delegation, and said he plans to meet Sunday and Monday with several other Democratic governors. The tax bill will be a “major topic,” he said.

“You should assume we will stand visibly, strongly, forthrightly with other states that look like us,” Murphy said.

Jimmy Vielkind contributed to this report.

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GOP to reduce tax relief by $350B to win over deficit hawks 

Senate GOP leaders have agreed to roll back $350 billion in tax relief in response to a procedural ambush by deficit hawks led by Sen. Bob CorkerRobert (Bob) Phillips CorkerSusan Collins is swing vote on tax bill Top GOP senators say they have the votes to pass tax bill Angus King on GOP tax push: ‘To call this a circus would be an insult to circuses’ MORE (R-Tenn.) that nearly killed the GOP tax-reform bill.

Senate Republican Whip John CornynJohn CornynSusan Collins is swing vote on tax bill GOP sets 23 percent deduction for small businesses to save tax bill Top GOP senators say they have the votes to pass tax bill MORE (Texas) told reporters after a round of intense discussions on the floor, “We have an alternative, frankly, tax increase we don’t want to do to try to address Sen. Corker’s concerns.”

Cornyn said the details of the proposal are being worked out.

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Corker had insisted on a trigger proposal that would have rolled back tax relief in case economic projections fell short of expectations.

But the Senate parliamentarian ruled Thursday afternoon that the trigger would not pass procedural muster.

“It doesn’t look like the trigger’s going to work, according to the parliamentarian,” Cornyn said.

Sen. David Perdue (R-Ga.) said the estimated reduction in tax relief would be $350 billion over a decade.

Sen. John HoevenJohn Henry HoevenMcConnell works to salvage tax bill GOP to reduce tax relief by 0B to win over deficit hawks  The Hill’s Whip List: Where Republicans stand on Senate tax bill MORE (R-N.D.) said adding an alternative minimum tax for wealthy individuals and large corporations in the later years of the tax bill is under discussion.

Hoeven said “my understanding is that it would likely apply to C-corps and higher-income individuals.”

Corker had joined with two other deficit hawks, Sen. Ron JohnsonRonald (Ron) Harold JohnsonGOP sets 23 percent deduction for small businesses to save tax bill Top GOP senators say they have the votes to pass tax bill Angus King on GOP tax push: ‘To call this a circus would be an insult to circuses’ MORE (R-Wis.) and Sen. Jeff FlakeJeffrey (Jeff) Lane FlakeSusan Collins is swing vote on tax bill Top GOP senators say they have the votes to pass tax bill Angus King on GOP tax push: ‘To call this a circus would be an insult to circuses’ MORE (R-Ariz.), and threatened to vote for a motion to recommit the tax bill back to the Finance Committee.

That move would have put the legislation in limbo for the foreseeable future and scuttled an all-night voting session on tax relief.

Conservatives pounced on Corker on Thursday night, accusing him of breaking his agreement with Sen. Pat ToomeyPatrick (Pat) Joseph ToomeyNewly declassified memos detail extent of improper Obama-era NSA spying Overnight Tech: FCC won’t fine Colbert over Trump joke | Trump budget slashes science funding | Net neutrality comment period opens Appeals court decision keeps lawsuit against NSA surveillance alive MORE (R-Pa.) to set the total size of the tax package at $1.5 trillion.

“If tax bill is less than $1.5 trillion, then Corker broke his deal with Toomey. He is a dishonest broker,” tweeted Club for Growth, a group that advocates for lower taxes and less government.

Senators have to figure out a way to ensure that their proposal meets the complex budgetary rules that GOP leaders are using to pass the tax bill with only 51 votes instead of the 60 usually required to pass major legislation. 

An analysis released Thursday by the Joint Committee on Taxation found the bill’s macroeconomic effects would reduce the deficit by $408 billion over 10 years, but still cost about $1 trillion during that time. The committee had earlier estimated that the plan would lose $1.4 trillion in federal revenue before accounting for economic growth.

Corker and Flake originally wanted to establish a trigger that would have reduced the size of the tax package by $350 billion in case it failed to produce as much economic stimulus as predicted.

But when the parliamentarian nixed that proposal, they insisted on reducing the overall size of the package, regardless of whether it revs up the economy enough to substantially increase further federal revenues.

“My understanding is that the parliamentarian has ruled against it so they’re going to put it in,” Corker told reporters.

The new proposal under discussion would reduce the total size of the tax package by $350 billion starting in year six or year seven of the next decade.

Cornyn told reporters that the size of the reduction could be even larger.

Republican leaders appeared extremely frustrated with Corker, Flake and Johnson during their intense discussions Thursday night while the fate of the bill teetered in the balance.

McConnell’s face grew flushed as he huddled with Corker and Toomey, one of the main architects of the tax reform bill, while GOP colleagues crowded around them to listen in.

Johnson said he joined Corker’s rebellion so he could win an assurance from GOP leaders about getting a vote on setting the corporate tax rate above the 20-percent level favored by President Trump. 

– Jordain Carney and Nathaniel Weixel contributed

Updated: 6:38 p.m.

http://thehill.com

Judge questions Fusion GPS claims in Trump dossier probe

Donald Trump is pictured. | AP Photo

Fusion GPS, the investigative outfit that commissioned the so-called dossier of accurate, inaccurate and unverified claims relating to President Donald Trump’s alleged ties to Russia, has asked the court to block or narrow a subpoena the House Intelligence Committee issued to the firm’s bank. | Pablo Martinez Monsivais/AP Photo

Giving a House panel more information on clients and payments wouldn’t invade First Amendment rights, court suggests.

A federal judge overseeing a legal dispute between Fusion GPS and the House Intelligence Committee suggested Thursday that forcing the private investigation firm to identify more of its clients and vendors wouldn’t run afoul of the First Amendment.

U.S. District Court Judge Richard Leon repeatedly noted that data the intelligence panel is seeking from Fusion’s bank as part of the investigation into Russian influence in the 2016 election would reflect only the names of those who exchanged funds with Fusion and the amounts of those transactions, but would not reveal the substance of what the firm did.

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“It would be clients and vendors and the amount, but not what the work was for,” said Leon, who issued no immediate ruling.

Fusion GPS, the investigative outfit that commissioned the so-called dossier of accurate, inaccurate and unverified claims relating to Donald Trump’s alleged ties to Russia, has asked the court to block or narrow a subpoena the House Intelligence Committee issued to the firm’s bank.

A Fusion lawyer, Stephen Salky, argued that letting the panel pry further into the records would intrude on the firm’s right to associate anonymously with individuals and organizations engaged in First Amendment activity, like political opposition research.

“The very dossier was about political speech and was about investigating one candidate for the presidency on behalf of another candidate for the presidency,” Salky said. “If that’s not in the heartland of the First Amendment, the work that was done, I don’t know what is.”

Fusion said the House panel was not entitled to rummage through the firm’s records, whether those are directly in Fusion’s possession or held by a bank.

“Congress cannot without any relationship or relevance to an investigation simply roam around in a party’s private affairs,” Salky said.

Some of Fusion’s most prominent clients have already been identified.

In October, as the House panel pressed for the financial records, Washington law firm Perkins Coie confirmed that the Democratic National Committee and Hillary Clinton’s presidential campaign paid to produce the dossier. A conservative website, The Washington Free Beacon, and its benefactor, Paul Singer, acknowledged paying Fusion earlier in the campaign season to develop negative information about Trump.

Financial records related to the dossier and to Fusion’s work for a law firm representing a Russian bank, Prevezon, were turned over to the panel several weeks ago. However, the committee is pressing for additional information on Fusion’s dealings with other law firms, as well as vendors and a media company, Salky said.

The House general counsel, Thomas Hungar, picked up on Leon’s mentions of the limited nature of the financial records and their lack of detail about what Fusion did.

“Whatever burden you could possibly imagine on First Amendment rights here is trivial,” he insisted.

Hungar also argued that while Fusion has warned that its business would vanish if its clients were revealed, the disclosure that the firm was working for the Clinton campaign and the DNC didn’t seem to have shut down the firm.

“That is the core of what the plaintiff was claiming, when it filed this lawsuit, would be the end of the world,” the House lawyer said.

Hungar said it would be inappropriate and perhaps even unconstitutional for the court to conduct a document-by-document review of what the panel is demanding and how closely it relates to the committee’s investigation.

“It’s highly disrespectful to a coordinate branch of government,” Hungar said. “It would go far beyond the proper role of a federal court.”

Leon also noted that the panel has claimed there are classified aspects to its investigation that go beyond the publicly announced goals, which could complicate the court’s effort to determine the relevance of the documents.

Salky, however, argued to Leon that he has a duty to safeguard the First Amendment rights at stake.

“We don’t think the court is a potted plant,” Salky said.

The hearing lasted about 40 minutes in a public session before reporters and others observers were kicked out for a session to discuss aspects of the case that remain under seal, including an agreement Fusion and the House Intelligence Committee reached late last month in a bid to settle the dispute. Within a matter of days, that settlement appeared to fall apart as Fusion returned to court and accused the committee of breaching the agreement.

Another district court judge, Tanya Chutkan, was previously assigned to the case and urged the two sides to strike a deal. Just after the dispute arose, the case was reassigned to Leon. Leon disclosed Thursday that Chutkan had recused herself from the case. He did not say why.

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