It’s not every day that a media outlet publishes a document asserting the elected head of state of a Western country is a Russian stooge. What is even more astonishing is that most of us were not astonished by the nature of the revelation; the possibility that Donald Trump has some kind of improper relationship with the Russian government is not a shocking or even surprising prospect to those who have paid attention to his foreign policy positions and statements.

What has been surprising is the behaviour of print and television journalists in the aftermath of this disclosure in piling onto Buzzfeed, unctuously tutting and declaring their ethical superiority proven by the fact they chose not to publish the document despite possessing it.

The CNN Story

On 10th January, CNN’s Jake Tapper aired a story revealing that the US intelligence community had included in their Russian hack briefing to President Obama a two-page addendum that, to quote Tapper, “included allegations that Russian operatives claimed to have compromising personal and financial information about Mr Trump… these were based on memos compiled by a former British intelligence operative whose past work intelligence officials consider credible”.

That is a huge story, and CNN was right to report it. What is notable is that CNN’s report uses language that underlines the credibility of the source. They were, in a sense, explaining why this addendum was so explosive; it didn’t come from some random person walking in off the street, but from a highly-respected former MI6 case officer with decades of experience running covert operations against the Russian government.

Jake Tapper did not use the word “unverified” once in that story; he said that the FBI was investigating and that it hadn’t yet “confirmed many of the essential details”. However, he went on to say, “I should note, [the material was] presented by four of the senior-most intelligence chiefs”. He goes on to describe the detail of one particular allegation; that there was a continuing exchange of information between the Trump organisation and the Russian government during the campaign.

This is indisputably newsworthy; the implications for the United States’ political system, if true, are profound and could even lead to a constitutional crisis. CNN’s emphasis in reporting the story wasn’t on the “unverified” nature but on the elements that tended to solidify the basis for concern; that the report’s author was considered credible by the United States intelligence community, that the FBI was investigating the claims in the document, that it had been taken so seriously by intelligence chiefs that they had seen fit to include it in the broader briefing they gave to President Obama on the Russian hacking allegations. They also reported the following;

CNN has reviewed a 35-page compilation of the memos, from which the two-page synopsis was drawn… in preparing this story, CNN has spoken to multiple high ranking intelligence, administration, congressional and law enforcement officials, as well as foreign officials and others in the private sector with direct knowledge of the memos. Some of the memos were circulating as far back as last summer. What has changed since then is that US intelligence agencies have now checked out the former British intelligence operative and his vast network throughout Europe and find him and his sources to be credible enough to include some of the information in the presentations to the President and President-elect a few days ago.

CNN, the New York Times and the Washington Post regularly use anonymous sources, from political campaigns and from within the government, who are offering little better than informed opinion or unverifiable assertions about classified information. In those cases, they justify publishing such unverified information on the basis of the credibility of the source. And that is the tack CNN appeared to have adopted when Jake Tapper aired this story, not only disclosing the existence of such a document but specifically describing the nature of some of the allegations. The long and short of it is that what CNN was disclosing was not tittle-tattle, and they reported the story accordingly.

The Buzzfeed story

Shortly after CNN aired this story, Buzzfeed published in-full the 35-page dossier on which the two-page intelligence addendum had been based; the dossier contained a number of short two-or-three page reports on different aspects of Trump/Russia co-operation, with the first report having been drafted in June 2016 and the latest in December 2016. The document had been drafted by a former MI6 case officer, now working in the private sector, having been first commissioned by Trump’s GOP primary rivals and then by someone associated with the Clinton campaign.

It should be noted that “oppo research” is not propaganda; political campaigns want solid information that can be used against their opponents, not petty gossip that will backfire if used. The author of the report says the research was originally of a quite general nature, but as he dug into the detail he discovered extremely concerning information.

Against the advice of the firm for which he was working, the author of the report provided a copy to the FBI. He also circulated it to other individuals in the Western intelligence and foreign policy community, which led to the former British ambassador to Moscow, Sir Andrew Wood, providing a copy to John McCain, who then passed it to the director of the FBI. The author also circulated it to the media in advance of the election, presumably in the hope of forestalling what he believed was the possibility of a Russian intelligence asset being elected to the presidency of the United States.

The circulation of this document does not bespeak some a smear campaign, but the actions of a man who was extremely concerned about the implications of this, if true, and who was determined that the information should reach the hands of the appropriate authorities. The reports did reach those hands, and as CNN reported above, the intelligence community considered the author to be credible enough, and the information grave enough, that a summary of the dossier was included in an intelligence report to the president. Again, this is not tittle-tattle or ‘fake news’; the document exists and has been circulating in the intelligence and foreign policy community, the author was considered credible and the FBI continues to investigate the allegations.

Aftermath of the publication

In the aftermath of Buzzfeed publishing the document, something very strange happened. Other news outlets that had reported on the CNN story suddenly started attacking Buzzfeed as being ‘yellow’ journalists. They started emphasising the word “unverified” (and even “unverifiable”), repeating it over and over again when discussing these reports. Some journalists like Chuck Todd out-and-out said the Buzzfeed document was “false”, without any supporting evidence at all.

The established media sanctimoniously trashed Buzzfeed, and patted themselves on the back for declining to publish the full 35-page document. The apotheosis of this bizarre development was seeing Anderson Cooper arguing with Kellyanne Conway that CNN should not be lumped in with Buzzfeed, that their story was a completely different story and that they did not deserve to be associated with trash of the sort published by Buzzfeed.

That position is illogical and hypocritical in the extreme. The two-page summary, and its ajudged credibility (and that of its author), is inextricably linked to the 35-page report that Buzzfeed published. The qualities that make the two-page summary credible in CNN’s eyes are the qualities that make the 35-page report credible; it was in judging positively the credibility of that report that the intelligence community decided to draw up a two-page summary for the president’s intelligence briefing.

CNN asserts their ethical superiority over Buzzfeed is demonstrated by their declining to outline the precise nature of the allegations. But this is a false distinction; they did describe the precise nature of some of the allegations (for example, that there had been continuing communications between Trump aides and Russian officials throughout the campaign), which is surely unjustifiable if they are saying the allegations must not be referred to or disclosed.

CNN, the New York Times and the Washington Post regularly resort to anonymous sources to pad out stories about classified matters, and these sources describe facts that these publications have no means to verify. They publish anyway, because they make a judgment as to the importance of the story and the credibility of the source as against the desirability of always reporting attributable, verifiable facts. Therefore, the claimed justification for the attacks on Buzzfeed does not make sense; either both stories (the publication of the 35-page report, and the reportage on the existence of the two-page summary and the nature of the allegations therein) are justifiable or neither are justifiable. It is not credible to claim that one is justifiable to report but the other is not; in doing so, they adopt a position that only they are fit, morally and intellectually, to have sight of the 35-page report and only they have the ethical capacity to pass judgment on it, not the general public. As I will establish below, the gravity of these allegations means that now only the general public is equipped to make a judgment on them.

The way the established media turned on Buzzfeed seemed to be driven more by emotion (perhaps resentment at having been scooped, or desire to maintain access to the Trump administration) than on logical and ethical considerations.

The sudden transformation

As the established media turned on Buzzfeed, so too did their characterisation of the story. The New York Times original story, following the CNN report, was much along the lines of the CNN report; emphasising the gravity of the allegation, the credibility that intelligence community reposed in the author, etc.

Within a few hours, the Times updated their story to include new language that tended to denigrate the credibility of the story. Instead of emphasising the intelligence background of the author, and the fact that intelligence sources had judged him a highly respected and credible individual, they used words like, “The summary is based on memos generated by political operatives seeking to derail Mr Trump’s candidacy”.

And the reason for the information being provided to the president and to Mr Trump became, “Intelligence officials were concerned that the information would leak before they informed Mr Trump of its existence”. Finally, the New York Times reported, “The decision of top intelligence officials to give the president, the president-elect and the Gang of Eight… what they know to be unverified, defamatory material was extremely unusual”.

The new wording is odd in the extreme, and the Times is clearly taking a position in opposition to the credibility of the material while attempting to maintain the flimsiest veneer of objectivity. Defamatory is a bizarre descriptor to use; the material cannot be defamatory if it is true, and no-one except Mr Trump and the Russian government truly knows whether it is true or not. It is also not ordinarily the news media’s job to describe any particular report as defamatory, which as a word has a highly subjective and even emotional quality attached to it.

Somewhere in the reporting of this story, “unverified” became a synonym for “false” and suddenly Buzzfeed was being assailed by people claiming this was “fake news”, that they had published a “false” document. Why news organisations turned on a dime in the reporting of this story, and were seemingly determined to discredit it as a whole, is unclear to me. But surely it cannot merely be pique at Buzzfeed choosing to disclose in full a document that was the basis for their own reportage.

“Unverified” to “unverifiable”

Somewhere along the line, “unverified” started to give way to “unverifiable”. It seems many media organisations threw up their hands, gave a theatrical sigh and said, “Well, that’s it. It can never be verified. Case closed”. It is true that it would be difficult for any one media organisation to verify it; they cannot just ring up the FSB and ask, “Did you compromise Donald Trump?”. But it appears many media organisations concluded it was unverifiable before even attempting to verify aspects of it.

The best reportage I’ve seen thus far is from Paul Wood of the BBC’s America desk. In his article, Trump ‘compromising’ claims: How and why did we get here?, he reports CIA views on the credibility of the allegation and provides new details about possible illicit relationships between Donald Trump and the Russian government.

Mr Wood reports the following;

Sources within CIA tell him they believe the allegation that Russia has ‘kompromat’ on Donald Trump to be “credible”

The same sources informed him there are multiple compromising tapes of Trump activities in Russia; “audio and video” on “more than one date” in “more than one place”

That a joint CIA-FBI taskforce is investigating allegations that the Russians sent money to Donald Trump or to his campaign

The FISA court issued a warrant in October allowing the FBI to surveil two Russian banks possibly involved in the abovementioned campaign finance violation

In April 2016, the CIA director was provided with a tape recording, by the intelligence service of one of the Baltic states, of a conversation discussing money being funnelled from the Kremlin to the Trump campaign

A lawyer associated with the interagency taskforce said, “It’s clear this is about Trump”

Quotes NYT op-ed from August in which former CIA executive Michael Morrell called Trump an “unwitting agent” of Russia

Even on a short timeframe, Mr Wood has managed to turn up relevant facts and supporting evidence about this story, particularly that active duty CIA officers are claiming that the Ritz-Carlton ‘kompromat’ tape exists and that there are more like it.

If multiple media organisations applied themselves to verifying this story, chasing down leads, following up reports, then I expect they could turn up a lot more information than that which Mr Wood managed to track down in just a couple of days. Instead, many news organisations appear to be proceeding on the assumption that the information is not only “unverified” but somewhere along the line have convinced themselves that it was demonstrated to be false. Given the import of the information, it is highly undesirable that media organisations should give up on trying to investigate and report on the issues that have been raised.

The balance of convenience

In English law, in deciding whether to grant an interim prohibitory injunction the courts use what is called the American Cyanamid test. The test tries to balance the consequences of, on the one hand, the claimant not being granted an injunction and then winning at trial (and the pre-trial losses they would incur, and the degree to which the defendant could pay them) and on the other, the claimant being granted an injunction and then losing at trial (and the pre-trial losses the defendant would suffer and the claimant’s ability to pay).

I think the ‘kompromat’ dossier calls for a similar kind of balancing act. One must balance, on the one hand, the consequences if the story were true (that Trump is indeed a Russian intelligence asset) and the document is not disclosed, as against the consequences of the document being disclosed and the story not being true.

In the former case, that would mean the gravest injury will have been suffered by the American body politic; its intelligence operations, its strategic thinking, its negotiating positions, all will have been compromised. The governance of the country itself will have been compromised, as the chief executive will be serving the interests of a foreign power and not his conception of the interests of the American people, however misconceived. If it were true, then it would be desirable that these allegations get the broadest possible circulation so that they can be investigated, to the degree possible, by the media and that the American people (and congressional officials and cabinet members) can be on their guard for any actions by the president that appear to be undertaken pursuant to the interests of that foreign power.

In the latter case, Trump will have been embarrassed and somewhat delegitimised, but he will deny it and life will go on. In that case, Trump will have been to a large degree the author of his own misfortune; the reason the allegations are not simply dismissed out of hand is because of his odd behaviour in respect of Vladimir Putin (praising Putin, applauding the annexation of Crimea, denigrating NATO, denying the reality of Russian hacking of the DNC in the face of overwhelming evidence).

In both American and British defamation law, a defendant is accorded greater latitude the more the claimant/plaintiff can be considered a public figure (malice must be proven, not mere negligence). This is because the courts recognise that the actions of public figures are matters of public interest, and it is vital that those who are disclosing information about possible wrongdoing by such officials be given some leeway in making their case. The courts recognise that they must err on the side of liberality if public debates of matters of public importance are to be protected rather than suppressed.

I think these considerations, and the ‘balance of convenience’, weigh very much in favour of disclosure. The implications of these disclosures, if true, are so profound that they outweigh Trump’s proprietary interest in his own reputation. They touch on the most fundamental matters of high policy; the integrity of the state and its independence from foreign influence and control, and thus it must be accorded substantial weight when balancing it against the personal embarrassment and reputational damage Trump might feel and suffer.

This is especially important in that nobody knows at present (except Trump and the Russian government) whether these allegations are true, and it is therefore important that these questions be pursued and investigated. It is clear that if this was left to the established media, this would not occur; they have already deemed the allegations to be “unverified” verging on false and defamatory, before any evidence demonstrating their falsity has been shown to exist. It is only disclosing these documents to the public that will create the necessary pressure and momentum to see the allegations fully investigated and determined one way or another.

It’s now a political issue

Less than ten days from now, Donald Trump will become president of the United States. Once he is inaugurated, any investigations into the matter by US federal agencies will come to an end. Ordinarily, if an individual is accused of engaging in espionage with a foreign power, this will be investigated by appropriate agencies; in this case, we know that will definitely not occur due to those agencies being under the executive control of the accused.

Thus, it is only the fourth estate and the public at large who can pursue and investigate the allegations now. A substantial proportion of the established media have indicated their dismissive attitude to the allegations, and so it falls to the public and to those journalists who have not been cowed by the hysterical backlash to find out the truth of the matter, to the degree that’s possible.

The concern among journalists like Anderson Cooper and Steve Kornacki for Donald Trump’s feelings and reputation, and for fairness to him as an individual, is touching but surely someone has to be considering what is “fair” to 320 million Americans and their legitimate interest in ensuring their government is not under the control of an agent of a foreign power. As there will be no ongoing government investigation, and assuming the facts cannot be neatly determined one way or the other, the gravity of the allegations and the profound implications of the issues at stake means that it is only the electorate who can now make a determination on the weight they will accord to them. As is the case with so many of the big issues, it leaves the realm of the criminal law and media reportage and it becomes a political issue, one that can only be determined at the ballot box and pursuant to the political pressure the American people are willing to bring to bear on the representatives who hold the president to account.

CNN correctly judged their original story to be newsworthy. Based on the subsequent backlash against the story as a whole and the unwillingness of much of the media to credit or even investigate the story further, Buzzfeed was right to disclose the full 35-page report on which the intelligence addendum was based. It is now up to members of the public and journalists who are not cowed by peer pressure to take the issue forward.