Transcript

BROOKE GLADSTONE: From WNYC in New York, this is On The Media. Bob Garfield is out this week, I'm Brooke Gladstone. When the Mueller report was finished with only the barest conclusions known, to us anyway, the talking heads retreated to their predictable corners to celebrate their victory.

[CLIP]

MALE CORRESPONDENT: This was a tremendous, tremendous victory for the president. A tremendous victory for the United States of America.

BROOKE GLADSTONE: Or steel themselves to fight on

MALE CORRESPONDENT: We will demand the release of the full report. The American people are entitled to a full accounting of the president's misconduct referenced by the special counsel. [END CLIP]

BROOKE GLADSTONE: All of this was based on Attorney General William Barr's four page summary of a report that was over 300 pages–maybe up to a thousand. Without a presidential perp walk, and that was never in the cards, Fox News leapt at the opportunity to call for the mainstream media's heads.

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GREG GUTFELD: 9-1-1, I'd like to report a death. It's the mainstream media finally choking on their own lies. Now this should be a victory lap but it won't undo the harmful crap the country went through thanks to a media who pushed this hallucination.

BROOKE GLADSTONE: Fox News' visceral Greg Gutfeld. But he is in the vicinity of a point about what many have seen as a mainstream media problem. Responsible outlets and reporting the news may well have focused too much on the president's claim that there was no collusion between his campaign and the Kremlin that he obsessed about, tweeted about over 100 times.

DAHLIA LITHWICK: For two years we've been saying, you know, did he commit the crime of collusion? The answer is there's no such crime.

BROOKE GLADSTONE: Says Slate's Dahlia Lithwick. More worrying she says is the legal argument advanced by the attorney general's four page summary. True, the Mueller investigation finding that the Russian government hacked their election to the benefit of Donald Trump does not find the unassailable proof of a Russian conspiracy with the Trump campaign. On the issue of obstruction of justice, however, the report declines to say. Attorney General Barr and his summary has no trouble saying, however, the president didn't obstruct because no crime was committed.

DAHLIA LITHWICK: Barr says because there was no underlying crime of collusion therefore there can't be obstruction, and we know that's actually legally not true. Right? Martha Stewart is one of many people who get tagged for obstruction even though the underlying crime isn't there–that happens everyday. I think it's really important to understand that Mueller split the difference. Right? Mueller said, 'I didn't find collusion,' presumably, 'and then he said on obstruction, I don't exonerate him and I don't have a finding.' Right? It was a net nothing. And for Barr to say, 'and thus Rosenstein and I take it upon ourselves to make a conclusion of law and we will determine that there is no obstruction.' That's not how this goes. Right? Orin Kerr, professor at Georgetown tweeted 'imagine if the Starr report had been provided only to President Clinton's attorney general Janet Reno who then read it privately and published a four page letter based on her private reading stating her conclusion that President Clinton committed no crimes.' And the last layer Brooke is this and it's important. Barr auditions for this job with a 19 page memo, secret memo, to the White House in which he says the president can't possibly commit obstruction because of this unitary executive theory that says that the president, right, is in charge of everybody in the executive branch, therefore if he fires Comey there's no question there.

BROOKE GLADSTONE: Because they're all one thing. It's like slapping your own hand.

DAHLIA LITHWICK: Like it's so insane in this sort of line of decision making that a person who asked for this job because he said there's no such thing as obstruction, turned around and concluded that there was no obstruction. If that is the case, please let us see the hundreds of pages of documents and allow the American people and Congress to make a determination about whether obstruction occurred. Because apparently Mueller couldn't make that determination.

BROOKE GLADSTONE: You know, for those of us who aren't lawyers it just seems so bizarre since obstruction was in plain sight. The president told Lester Holt on network television that he fired Comey because of the Russia thing.

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PRES. DONALD J. TRUMP: And in fact, when I decided to just do it I said to myself, I said, 'you know, this Russia thing, with Trump and Russia is a made up story. It's an excuse by the Democrats for having lost an election. [END CLIP]

DAHLIA LITHWICK: Yeah, I think one of the things that's really confounding about this, and I do think this is a thing that the media needs to think through better. I guess which means, Brooke, you and I need to think through, is this question of what did it mean that this was all unrolling in real time?

BROOKE GLADSTONE: Which takes me to the Saturday Night Live skit.

[CLIP OF SATURDAY NIGHT LIVE]

MICHAEL CHE AS LESTER HOLT: And you didn't fire him because of his Russian investigation.

ALEC BALDWIN AS TRUMP: No, I did.

BROOKE GLADSTONE: Trump confessing to Lester Holt.

ALEC BALDWIN AS TRUMP: I thought, 'he's investigating Russia, I don't like that, I should fire him.

BROOKE GLADSTONE: And Lester Holt going--.

MICHAEL CHE AS LESTER HOLT: What? And you're just admitting that?

ALEC BALDWIN AS TRUMP: U-huh.

MICHAEL CHE AS LESTER HOLT: But that's obstruction of justice.

ALEC BALDWIN AS TRUMP: Sure. OK.

MICHAEL CHE AS LESTER HOLT: Wait, so did I get him?

BROOKE GLADSTONE: He sort of puts his hand on his earphone and says--

MICHAEL CHE AS LESTER HOLT: No I didn't. Nothing matters. Absolutely nothing matters anymore. [END CLIP]

DAHLIA LITHWICK: That's true on the corruption front. I mean the Trump Foundation, the whole thing is completely illegitimate enterprise, the cashing in at the hotels or on Ivanka's trademarks in China. I mean all of this happens in plain sight and there's a deeply strange counterfactual where if all of this had happened in secret and we didn't know about it and then it was all in the Mueller report instead of the front pages of The Washington Post day after day for two years, would we be shocked and horrified?

BROOKE GLADSTONE: Are you frustrated as I am with the media coverage? The fact that there have been so many words, so much ink, so much time committed to a four page thing.

DAHLIA LITHWICK: I think that nature abhors a media vacuum. You know this better than anyone. And if we have to just sort of spin dross into gold in order to sort of create a story in which someone won and someone lost because that's what we do best. I think you're right. It's frustrating.

BROOKE GLADSTONE: I just thought cable news became a complete parody of itself. If it says this then it means that. Or in the case of Fox News it means--.

MALE CORRESPONDENT: Happy no collusion day Tucker.

MALE CORRESPONDENT: Happy no collusion day. [END CLIP]

DAHLIA LITHWICK: I think the Fox News message to Republicans was that we won, witch hunt, fake news, now let's go after Hillary's emails. I mean it's clear that there's going to be a doubling down and this is what's mysterious about Mueller. Because Mueller knew that the Special Counsel's Office, the Justice Department, the FBI were all under attack. And by equivocating, he gave fodder. The whole thing was fake news and therefore we have to go after the media and go after the Justice Department and that's the scary message.

BROOKE GLADSTONE: But isn't this a sign that the legal system works for the Right if Trump isn't found culpable for anything?

DAHLIA LITHWICK: You know you would think that's the sort of magic part of this. That when Rudy Giuliani was asked, 'does this mean that you are too hard on Robert Mueller and that in fact this process was fair and justice?' His answer was no, still no. He went on to make up some number of millions of dollars that Mueller had been paid which was not--.

[CLIP]

RUDY GIULIANI: Upwards to $30 million, but he couldn't make the key decision, his hands were shaking. [END CLIP]

DAHLIA LITHWICK: No, I think actually the trick here is that you get to both say that this fair and just process completely exonerated the president and that the process was completely corrupt. And please don't ask me to square those two things, I can't.

BROOKE GLADSTONE: So, there's been an argument over the coverage, the gullibility versus the culpability of the press for leading Americans down a primrose path. Are there lessons the media would do well to learn from this episode?

DAHLIA LITHWICK: I think the media's doing a very, very good job watchdogging this president. That's the story, the story isn't Mueller, it's that what Mueller was doing in the dark turns out to be exactly the thing we've all been doing in open daylight which is exposing corruption, exposing self dealing and explaining what it means. So I guess I would say the media's sin was myopic focus on this one version of it. But I think generally, the media has done really dogged and admirable work. I can't fault them for that.

BROOKE GLADSTONE: Well what about the rest of us? Assuming we don't get to see the full report, do we then watch and wait for other investigations. I mean for those seeking national redemption, should we expect it from the law?

DAHLIA LITHWICK: Well that's been a question I've been asking myself for a long time. I think that there was a hope that a legal investigation and prosecution would save us and more and more I think that what Mueller was saying is there is a legal mechanism to remove this president and it's not a special counsel indicting the president, it's impeachment. And you know Congress is in the midst of a lot of soul searching about whether it's an inopportune time or how to do that. But I think that's the legal answer. And so the better question is, 'what do we as citizens who are sitting around waiting for the next person on the white horse with the sword to save us, what are we doing to sort of be that person on the horse with the sword ourselves?' Whether it's, you know, voting or making sure other people vote or being informed or fighting for free speech and free press. Whatever it is, I don't think that Mueller was going to give all that back to us. That's for us to take.

BROOKE GLADSTONE: Does collective action really affect the decisions of Congress and the courts to any great degree?

DAHLIA LITHWICK: I think public action hugely affects the behavior of, certainly, Congress. I think the courts are not meant to be responsive to public opinion. And that's its own good thing.

BROOKE GLADSTONE: Although you did say, back in an interview we did during the Muslim ban, that it was your perception that all of that action in the streets was kind of shifting the norm–pulling the Overton window perhaps.

DAHLIA LITHWICK: I definitely think that the courts take notice of public opinion and it would be delusional to say they don't notice. But I think that the institution that we are meant to be lobbying is Congress–that's how they set it up. And Congress is incredibly responsive. Time and time again people picking up the phone and calling their congressmen has made a huge difference in the early months of this administration and it can still. This is not a we-them problem and this is not a Fox News-MSNBC problem. I think that this is a problem of do we want a direct representative democracy in which the president is not above the law in a Nixonian sense or do we not? And I think that's still a bipartisan problem. It seems to me that a lot of the things we're talking about today, which is simple transparency, which is that the attorney general doesn't make conclusions of law. He hands the document over to those entities that do. This question of 'are we safe from Russian interference into elections and Russian hacking,' all of those are not us them questions. And so I think maybe, you know, when you ask what the cardinal sin of the media is, it's not smoking out those things which I think are pretty universal rule of law ideas and highlighting and lifting those ideas up for us to talk about instead of facts that we still don't know about.

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BROOKE GLADSTONE: Dahlia, thank you very much.

DAHLIA LITHWICK: Brooke, it's always a pleasure.

BROOKE GLADSTONE: Dahlia Lithwick writes about the court of law for Slate and she's also host of their podcast Amicus.

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BROOKE GLADSTONE: Coming up, when it comes to our president, the past really is prologue–if you only look. This is On The Media.