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- [00:00]
Mike Pesca
The gist is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations. It's Tuesday, March 18, 2025 from Peach Fish Productions, it's the Gist. Mike. I'm Mike Pesca. President Trump is displeased about a federal judge's ruling who found that the administration ignored his orders in the matter of deportation of immigrants to El Salvador supposed members of a criminal gang. The judge in the case, James Boasberg, asked a Justice Department lawyer for details when the flights took off from the US To El Salvador as part of the Alien Enemies Act. The answer was two took off during the hearing in which the judge ruled the planes must be grounded. One left US Airspace afterwards. But the administration has some explanation about why it wasn't acting only under the Alien Enemies Act. The judge has said the administration was in violation of his rulings. The judge does not like this and says it cannot continue. The president does not like either the judge's opinions or his meta opinion that his opinions should be followed. President Trump wrote, I'm just doing what the voters wanted me to. This judge, like many of the crooked judges I am forced to appear before should be impeached. We don't want vicious, violent and demented criminals, many of them deranged murderers, in our country. Make America great again. If the legal acumen doesn't completely shine through, let me note that several of the words were put in all caps. Congressman Brandon Gill of Texas has drafted orders of impeachment and against Judge Boasberg. The Chief justice of the Supreme Court, in turn, does not like the orders of impeachment and does not like the president calling for impeachment. Chief Justice John Roberts issued a statement, I think we're obliged to say, a rare statement. Quote, for more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose. If the wisdom of that statement doesn't shine through, let it be noted that no words were written in all caps. The constitutional crisis moment may in fact be upon us. This seems exactly the kind of case that the Trump administration has been seeking out the rights of gang members, sorry, accused gang members versus procedure. It's not doge. It's not firings. The courts have ruled against them and the administration has more or less complied with those rulings. The administration on this ruling and this defiance is bragging, is posting videos of the deportations. So the crisis or potential crisis all depends on what Trump does next. Not says, but does the flights have already landed in El Salvador. We'll see where the courts and the presidency land next. On the show today, an interview in two parts. The guest is New York Times journalist David Enrich. His book is Murder, the Truth, Fear, the First Amendment and a Secret Campaign to Protect the Powerful. It too, is about the Supreme Court and the precedent in defamation, which has come under some question, although the aforementioned John Roberts has gone out of his way to reaffirm this precedent to some extent. And then in part two of our interview, David Enrich talks about his coverage of Brett Kavanaugh and the old school friend of the now Supreme Court justice who is going about describing Enrich as regretful of the two stories he wrote. Enrich, I can tell you, is not regretful. That is not the correct word. He is reflective. And luckily, it's the gist that gets to be the forum for him to express those reflections. I do not expect him to be talking about this elsewhere, but he is here. David Enrich, up next. Hi. I'm here to talk about True Work. True Work is hell bent on creating the most technical high performance workwear in the world. Don't let that intimidate you. Do let it intimidate the elements. But True Work is a coherent story that begins in the Colorado mountains. A trade worker said, I'm not going to wear jeans to do this work. I am not going to wear material that gets wet and bogged down. It's engineered for maximum comfort and efficiency. But I wear it casually all the time, and I mean all the time. I wear the jacket, I wear the pants, which is a nice rust color, yellow has a lot of pockets. It is soft, it is stretchy. It is sweat wicking. And people who wear True Work love true work. Over 50,000 5 star reviews and countless stories from trade pros in every state and in every job across the country, even actuarial accounting, I assume it does look good. Check out the full lineup and get 15% off your first order at true work.com/the gist.
- [05:35]
David Enrich
That's 15% off. At t r u e w e r k.com/the gist. I'm sure you know the old saying, may you live in interesting times. Well, you got it. These are interesting times. As Washington and the world adjusts to Trump 2.0, you can trust our friends at the Dispatch podcast to break down the biggest stories from the campaign trail and beyond. So what you get in this podcast feed On Mondays, Jamie Weinstein hosts some hard hitting interviews. On Fridays, this is the piece de resistance. Sarah Isger, Steve Hayes, Jonah Goldberg and others from the Dispatch discuss politics, policy and culture, including shopping cart placement. If you're looking to deepen your understanding of the biggest news stories from across the country, you could rely on the Dispatch podcast to ask the important questions and get the facts right. Find the Dispatch podcast where you get your podcasts.
- [06:39]
Mike Pesca
There is a high bar in this country to successfully pursue a defamation or libel suit against the media organization. And this is by design. The design, however, has a very fascinating history and is now we're told in a new book being challenged. The name of the book is Murder, the Truth, Fear, the First Amendment and a Secret Campaign to. To Protect the Powerful. David Enrich has written the book. He's a New York Times. Well, actually an editor and now an expert on the First Amendment and defamation. And therefore I pretty much know I could say anything against him and I'll be scot free in terms of the law. Hello, David, how are you?
- [07:18]
David Enrich
I'm good, how are you?
- [07:20]
Mike Pesca
No, I want to get into the history and that's usually how an interview should start. Right. In chronological order. But I actually have to. Yeah, I could, I could. No holds bar. Just attack you scurrilously for the subtitle. I do not think it is a secret campaign. I think it's a. An out in the open campaign. You just noticed it?
- [07:35]
David Enrich
Well, it's out in the open now, that's for sure. I mean, I think this is, it's something that's been happening on the fringes and all of a sudden is being shoved into the mainstream. So it's. Maybe it was a secret campaign.
- [07:47]
Mike Pesca
Yeah, it's just, you know, it arouses interest to call something a secret campaign. A shadowy cabal. It's always good. Spidery, shadowy, dark cabal. Yes. So we start with Times. New York Times v. Sullivan, landmark case, Supreme Court case. Who was Sullivan?
- [08:05]
David Enrich
So L.B. sullivan was a city commissioner in Montgomery, Alabama in 1960, which was when the New York Times ran a full page ad paid for by supporters of Martin Luther King. It's basically a fundraising appeal. And the ad detailed a lot of the bad stuff that Southern officials were doing to basically to preserve white supremacy in the South. And one of the things that they described was the violent and racist activities of the Montgomery, Alabama police force, which happened to be the area that LB Sullivan had jurisdiction over.
- [08:45]
Mike Pesca
And so he's like, it's like a three part tripart maybe. And yeah, he was one of them, right?
- [08:51]
David Enrich
Yeah. And so Sullivan, who by the way was not even named in the ad, sued the Times for defamation. And he wasn't so much concerned that his reputation had been damaged. This was about him and his colleagues across the south wanting to send a very clear message to the Times and other national media outlets that if they covered the civil rights movement and wrote about or broadcast things about racism in the south, they were going to face very severe financial consequences. And so the lawsuit went to trial in a courtroom overseen by a white supremacist. And as you might imagine, the verdict swiftly came back in favor of LB Sullivan and against the Times. And the Times appealed to the state Supreme Court, lost, and then as a final last effort appealed to the US Supreme Court, which in 1964 agreed to take the case. And so the justices unanimously ruled in favor of the New York Times and against Sullivan. So basically overturning the lower courts decisions. And their reasoning became kind of a real watershed moment for the media in America because they ruled that in order to have a functioning press and in order to have free speech and freedom of the press, journalists and others basically need to have the breathing room when they're discussing public officials and other kind of matters of weighty public import. They need to have the breathing room to make innocent mistakes and get a fact or two wrong. And which by the way, this ad that ran in the Times four years earlier, it did have some errors.
- [10:31]
Mike Pesca
Yeah, that's what's interesting and complicated about it in that the ad asserted that they were trying to starve out student protesters in a cafeteria. So that wasn't wrong. They got a fact wrong. What happens now is the question. And as you say, the courts say breathing room is necessary. And this even extends to, you don't have to get every fact right and you still can't lose a case because what were the standards that they set forth for the kind of person or the kind of figure who has this higher bar to clear?
- [11:02]
David Enrich
So you have to be someone who has basically has a lot of clout and influence in society. And that, that, so it originally it was started out as being a public official, so like an elected leader, someone like that. In subsequent decisions this broadened out to a wider range of public figures. So like you're run of the mill billionaire, a celebrity, a university president maybe, someone like that.
- [11:23]
Mike Pesca
Right.
- [11:24]
David Enrich
What the court ruled is that in order to win a defamation case, if you're one of those public figures, you need to prove not only that the facts were wrong and you were defamed, but that whoever did the defaming and got the facts wrong did so either deliberately so they lied or did so with what's called reckless disregard for the accuracy of what they had written. And so basically, this protected you if you made innocent mistakes. If you just screw up, as we all sometimes do, you are still exposed and still vulnerable if you're lying or being reckless. And so it basically, the Supreme Court basically tried to, you know, thread the needle here, where if you actually are maligned by someone deliberately, even if you're a public figure, you can still seek recourse. What it's off limits for you, though, is if the. If this was just, you know, an honest mistake, essentially.
- [12:12]
Mike Pesca
Right, right. Or even. Well, I guess the definition of honest mistake is somewhat contested, but the legal term of art, which I think a lot of people don't understand because the plain meaning of the words seem to run slightly in contradiction to what it means is actual malice. Tell me about this one.
- [12:31]
David Enrich
Yeah. So, I mean, this is a, in hindsight, maybe a kind of poor choice of words by the Supreme Court because it doesn't mean what you would think it means. Like, I hear actual malice, and I think, well, you're mean or you hate the person. Yeah.
- [12:44]
Mike Pesca
You meant to do them harm. Yeah, yeah.
- [12:46]
David Enrich
Well, and it. And basically the meaning to do them harm is close, but not exactly what it actually means legally, which is basically that you lied or were reckless or very, very reckless, in fact, in publishing what turned out to be false information. And so again, it's, you know, if you are lying about someone and you can be proven to be lying about someone, you are completely exposed. Otherwise, there's a higher bar. And again, just to reiterate this is this only applies to public officials and public figures. So if you're a private person just walking down the street and someone even gets facts wrong about you, you can still sue. This is only a higher bar that applies to people who are in the public spotlight.
- [13:28]
Mike Pesca
Right. But later cases, and you detail this, expand what it means to be a public official, how you can sort of temporarily become a public official. There are other cases that get at that. Right?
- [13:42]
David Enrich
Yeah. And basically what the court has been trying to do over the years is to make it to ensure that the media and others. So just like someone who's circulating a petition online, for example, or leaving a comment about a restaurant they recently ate at, that when you're writing or talking about something that has public significance, that you are protected from being, having to self censor or have to fear that if you get a fact or two wrong, you are going to be kind of sued into oblivion. And so you have some kind of borderline people who get drawn into this web. And the example I like to use is, let's say there's an air traffic controller who is on duty when a plane crashes. Now that's someone who did nothing to seek out the public spotlight. They are not a prominent person, no one. They have no name recognition under the court's rulings. If you're an air traffic controller on duty when a plane crashes and the media writes a story looking into your role and they get a fact or two wrong, and those facts are kind of, they injure your reputation, you cannot win that case unless you prove that the whoever wrote the offending piece either lied or knew that what they were writing or should have done, that what they were writing was false.
- [14:51]
Mike Pesca
And the goal at that moment, you become the equivalent of the governor of the state.
- [14:54]
David Enrich
Yeah, exactly. And the goal there, that might seem a little unfair to the anonymous air traffic controller, but the point is that in a matter of public importance, in this case a plane crash and the media's ability to figure out what caused the plane crash and to maybe avoid having it happen again, the media needs to have that breathing room so that they are not intimidated by the prospect of litigation just again, for screwing up a fact in good faith.
- [15:19]
Mike Pesca
It's also interesting because it, what it is, is a weighing of virtues. And one virtue is to allow the media to do its job. But there's another virtue, which is not to unfairly allow reputations of individuals to be harmed. You could argue that in allowing such latitude to the media, you not only hurt the individuals, but you hurt the public discourse. You hurt the media's credibility. We'll get to that in a second. But I want to point out chomping.
- [15:50]
David Enrich
At the bit to get to that. Yeah.
- [15:51]
Mike Pesca
I want to point out another earlier case which you write about in the book when we're talking about the New York Times. On the one side is the New York Times Martin Luther King, and on the other side are racist segregationalists. We know where the sympathy is. But then you have this other case about, I think, a very sympathetic figure, a pilot, a female pilot, who also in this, in this instance, got deemed a public figure. Why don't you tell me about her?
- [16:19]
David Enrich
Yeah. So this is the case of Carrie Lorenz and I think this is such a fascinating story, which, by the way, her case gets used all the time by people on the right who are trying to water down freedom of the press protections. And so I was really eager to dig into this and just try to understand it better because the way it gets treated in public is very superficial. And so Carrie Lorenz was one of the first female fighter pilots in the US Military. And that was a role that was.
- [16:45]
Mike Pesca
One of the first two, right?
- [16:46]
David Enrich
Yeah, she was the second, basically. And the first one died in a crash when her F14 was trying to land on an aircraft carrier, which left Carrie Lorenz as the only one. And around this time, a conservative group called the center for Military Readiness, which was run by a woman, Elaine Donnelly, who campaigned, among other things, was campaigning against women serving in combat roles in the military. She published a report that was based on some leaked documents that she had received from a source at the Pentagon that purported to show that Lorenz had advanced to the position of fighter pilot, which, as you can imagine, involves clearing like a thousand tests and all sorts of training that she had gotten that clearance to become a fighter pilot basically by virtue of the military using double standards to promote women to roles that if they had been men, they would not have been allowed to have. And the publication of this report, it basically torpedoed Lorenz's career. She that her days as a fighter pilot ended very shortly after this report was published. And no one really disputes that the reason the her career ended was because of this report. And the report had some. Certainly was lacking some context, arguably, depending on who you ask, had some inaccuracies in it. And so for the sake of argument, just. Let's just assume the report did have some inaccuracies in it. So Lorenz sued Elaine Donnelly in the center for Military Readiness for defamation. And the courts, one court after another, rejected the suit without even getting into the merits of her claim. They rejected the suit because they classified Lorenz as a public figure and said that if she's a public figure, there's no way she clears this high bar to prove that Donnelly lied or was reckless. Because Donnelly, again, had good reason. Again, some of the facts are in dispute, but she received this stuff from a trusted source inside the Pentagon. They were what appeared to be bona fide military records.
- [18:44]
Mike Pesca
So ideological or not, she's acting as the equivalent of the media. And the media has to be. The courts has been given latitude to pursue the truth.
- [18:53]
David Enrich
Well, it's not just the media. Everyone should have latitude to. To pursue the truth, whether it's a journalist or an activist like Elaine Donnelly or just like a random person who's circulating a petition or wants to engage in a debate at like a town hall meeting or something. So the question then becomes, did Kerry Lorenz basically get screwed by this or not? And there's no way to avoid having a lot of sympathy for what Carrie Lorenz went through. I certainly have a lot of sympathy for her. The question though is if you were to treat her as a normal person and not a public figure and it was much easier for her to print a case like this, what effect would that have had on Elaine Donnelly's free speech? And you know, the balance the court is striking in a case like this is one of those borderline cases is the truth. And you can make a good argument, which I try to in the book, that, you know, the public has an overwhelmingly clear interest in having unfettered discourse and debate about the wisdom of Pentagon policies. Right? In this case, this happens to be a policy that most liberals presumably would like, which is encouraging more women to serve in combat roles. But no one disputes that it is in the public's interest for there to be free ranging scrutiny of what the US Military is doing. And the argument that. So if you get, if you make it easy for someone like Gary Lorenz to sue Elaine Donnelly, that's creating a precedent that will could be used in the future to make it much harder for the media or anyone else to speak or write critically or even to really scrutinize internal Pentagon policies. Now, again, I have a lot of sympathy for Carrie Lorenz and I can very much understand her side of the argument. But I think the other really important thing to understand about this case is that this is an outlier. This is a case that conservatives going back through decades of case law have settled on as their leading example of injustice to someone whose individual rights maybe get trampled by the public's right to have free debate and to scrutinize powerful people and institutions. And the truth of the matter is, and maybe we'll get into this in a sec, but this case is being held up as an example of someone's rights getting hurt, but it's being held up by people who in general, who are not looking to represent people like Carrie Lorenz, they're representing people and threatening the media on behalf of and bringing lawsuits on behalf of people who are enormously powerful, often extremely rich, and have, are waging wars against the media in an effort to suppress scrutiny of them. And again, we can debate that, but that, that based on my reporting, is the fact of what's happened.
- [21:30]
Mike Pesca
While true, the client list of the individuals who are looking to carve out or chip away from Sullivan is of interest, but I don't know that it's of material importance. If powerful people who can hire lawyers benefit, but also some unpowerful people who we don't even yet know about would benefit, maybe that would be a consideration in tightening the NY V. Sullivan, which, for the record, I don't think is a good idea. I just think that there are trade offs. And some of the trade offs are that the media is quite often not held to account for inaccuracies. Not legally held to account. Sometimes they are. You write about this very famous case, the Rolling Stone UVA rape case. Rolling Stone lost millions of dollars because the courts and the jury did find that they violated the actual malice legal standard. Right.
- [22:23]
David Enrich
But Mike, I just, I would challenge, and I'm not trying to put you on the spot here, but I would challenge any of the lawyers making these arguments to identify a case where the media has not been held to account legally because of the actual malice standard in New York Times versus Sullivan. There are plenty of cases where they lose. Right. But there is, that is usually on the merits or the cases that are getting thrown out on procedural grounds because of Times versus Sullivan are often not very good cases. And I think.
- [22:51]
Mike Pesca
What about the Sarah Palin case against the New York Times? Are you free to talk about that as a Times employee?
- [22:56]
David Enrich
I am happy to talk about that. Let's talk about that. So basically this dates back to 2017. There was a mass shooting and the Times wrote an editorial that basically essentially accused Palin of having inspired a previous shooting that was targeted at, among others, a congresswoman. And the Times got it wrong. The editorial, it, I mean, it was a small part of the editorial, but it was definitely wrong. It wrongly linked Palin to a shooting that while it had been like, often cited at the time, later evidence, no later evidence had emerged to verify or validate that claim. And so it was wrong. The Times, I believe it was 15 hours, the editorial was published at night. Fifteen hours later, they had corrected and apologized for the editorial without any request by Palin. They just did it on their own because they had been hearing from readers and from other colleagues internally at the Times. And Palin sued, claiming that the brief mention, the brief and fleeting mention of her in connection with this shooting had defamed her and, you know, caused millions of dollars in damages to her reputation. And The Times's argument is that, you know, this is exactly what Sullivan is meant to protect against, that they there's a good faith error. It was a screw up and it was quickly corrected and apologized for. And if, and you should not have to pay ruinous damages because of an innocence group. Palin's camp argues that the Times should have known better. They should have known that this claim that her and again, I'm not getting into the details, but that there have been lots written in the past about this claim that Palin had inspired this previous shooting. Those claims have been discredited and Palin's side argues that they should have known better. And I don't know. So this case has been through like 15 different appeals. That's not true, but many appeals. It went to trial. The Times won a trial that got appealed on a bunch of different grounds. It just got sent back for retrial, which will start in about a month. And so first of all, that is not an example of her not winning. I think it probably will be. But to me, I don't know, this isn't a case of an innocent person getting her reputation destroyed. I mean, Palin's reputation was what Palin's reputation was. And a brief and fleeting mention in a Times editorial, albeit a wrong one, like to me doesn't, I don't know, I just don't think it's like that strong an example personally. Well, but I'm biased. I mean, and let me just say one other thing, like the literally the first two or three words of my book, the very first ones, or are I am biased. I'm a journalist. I've been doing this my entire career. I've had it programmed into me from a young age at New York Times versus Sullivan is kind of the bedrock or one of the bedrocks of my profession. I believe journalists, by and large, we, while we definitely screw up all the time, and I personally do sometimes, that we generally are acting in good faith and trying to do our best and that that should not expose us to endless lawsuits.
- [26:09]
Mike Pesca
But I agree. I mean, I'm glad that Palin has not yet won. I hope that she doesn't win. And yet at the same time, it might have been innocent. I don't know what we mean necessarily by an innocent mistake. It was a mistake, from what I'm remembering and having recently refreshed myself about this, that the the editorial page leader, James Bennett at the time inserted inaccuracies in this and he was alerted by the op ed columnist Ross Doth it who had his ear to the conservative world saying, shouldn't we correct this? And then he did, or they did, when it was made clear that they were going to be quite embarrassed by this glaring omission of fact. And without the lawsuit, I don't know that any of these internal machinations would have come to light. Well, that's true, though embarrassing for the Times. It's good and interesting for the public that they did. And it doesn't to me, show a picture of, at least in that case, the Times acting innocently or within good faith. I don't know. This is why it's hard. And there are competing virtues. I don't think Sarah Palin, not a sympathetic figure, should have won a lawsuit. At the same time, you know, the New York Times should have some means of answering or engaging with the process of what happened. I don't know that they would have was just based on the law they ever would have if they weren't sued.
- [27:40]
David Enrich
Look, I, first of all, I, I don't fully agree with everything you said, but I 100% agree with you that the Times and other big, powerful mainstream news outlets, like, deserve accountability, scrutiny, and that we need, we are not as transparent when we screw up as we need to be. And Frank, to me, like, I mean, we could have a whole conversation about this, but to me, like, the biggest problem is that, you know, we're pretty good about transparency when we get a fact wrong, like misspell someone's name or something like that. We're a lot less good when we're wrong on kind of a broader thematic thing, like a line of coverage or something like that. And I think it is very rare that anyone in the mainstream media, including the Times, like, really deals with that in a way that's satisfying to most readers who rightly or wrongly perceive us as biased or at least really sloppy. And I think, obviously, trust in the media is not super high right now. And I think some of that is because there's like an orchestrated campaign to discredit and weaken us. But I also think it's because we have not been responding to what a lot of readers have been saying, which is that you guys get things wrong. You don't really. You own up to it in kind of a technical way, but without having a. A real proper reckoning about it. And what reckonings do occur, occur, like behind closed doors. And I think we could be a whole lot better than I agree in this case, actually, it hadn't occurred to me until right now, when you're mentioning it that like, you're right, the lawsuit has brought to light interesting and important kind of internal, like it really showed what happened inside the Times. I personally think what it showed is that it was a series of like, like screw ups, but like innocent ones done under intense time pressure. Reasonable people maybe can disagree with that about that. But I agree with you that the transparency, transparency that's afforded has been valuable. And I don't think the solution is more lawsuits, but I do think it would be worth places like the Times thinking hard about the value of that kind of transparency.
- [29:35]
Mike Pesca
Well, the value of transparency comes into play in part two of our discussion between me and David Enrich, author of the book Murder the Truth. And thus ends our portion of the conversation about that very good and valuable book. Now, coming up after the break, I will tell you about two articles that Enrich co authored about then Judge Brett Kavanaugh during the confirmation hearings of the NOW justice. In just a minute, we will discuss the friend and former classmate of Kavanaugh who says that Enrich is expressing remorse about the stories that he wrote. That's not close to the full story. We'll hear Enrich's part of the full story in about a minute. We're back with David Enrich, who I had on to talk about his book Murder the Truth. It's about the efforts to beat back America's fairly high defamation standards. Good book, good issue. But Enrich, as a journalist for the New York Times, sometimes finds himself as the focus of criticism in such an instance recently occurred or is occurring. Mark Judge, childhood friend of Brett Kavanaugh and said by Christine Blasey Ford to be in the bedroom at a high school party where Kavanaugh jumped on. Ford has vocally defended his former classmate and himself. Judge is a writer and an essayist recently of the book the Devil's Triangle. Mark Judge versus The New American Stasi. Judge reached out to Enrich, seeing that Enrich was writing about press freedoms. How do you square your commitment to truth with your smears of me? Was the essence of the request. Here's what Judge himself wrote and Rich, like the rest of the Stasi media, willingly participated in the media's attempt to destroy us in order to prevent Brett from being seated on the court. So Enrich engaged with this question, this rhetorical question, the how dare you type question, and he wrote back to Judge, quote, I've spent a lot of time thinking about my role in the Kavanaugh coverage. I would be happy to talk to you about it at some point for Now I will just say that I have learned some lessons and would probably do certain things differently next time from this Mark Judge wrote an article for a magazine with the headline, new York Times Reporter who Regrets Kavanaugh Hit Writes Book Defending the Media. Well, that wasn't the sentiment accurately conveyed. This is. I asked Enrich for his side.
- [32:00]
David Enrich
So he reached out to me months ago at this point for an advanced copy of my book, which he said he was having trouble getting, which I assume is because he's not a traditional journalist. I said, not a problem, let me take care of it. I got him a copy of the book. He said he was going to give it a review. That's fine. I anticipated he would not, you know, like, we don't see the world eye to eye on a lot of things was my assumption. He came to me with a bunch of follow up questions over, I think was over like a Twitter direct message or something. And among the questions he asked was, how do you square your desire for truth with how you treated me during the Kavanaugh hearings? And I wasn't even quite sure what he was talking about at first because my entire role in the Kavanaugh coverage at the New York Times, I wrote two pieces. Neither of them would really particularly concern Judge. They were about Kavanaugh's behavior during his high school years. And some stuff that was on Kavanaugh's yearbook page and a letter he had written to some friends before, I think it was before spring break, and talking about how they were all going to get drunk on spring break as high school kids. And so, yeah, yeah, I'm looking at.
- [33:07]
Mike Pesca
These letter, I'm looking at these articles. One is Kavanaugh's 1983 letter offers inside look at High School Clique. And that's what it was.
- [33:15]
David Enrich
It's.
- [33:15]
Mike Pesca
You have pages from his yearbook and it's a bunch of high school kids talking to each other about getting drunk. And then Kavanaugh's yearbook page is horrible, hurtful to a woman it named. And you quote this woman who was. Well, you could. Now you take it from there.
- [33:31]
David Enrich
Yeah, I mean, look there. Basically what he was asking me, I was, I was talking earlier with you just about how I think it's important for the media to be transparent and to own when we, like, do things that we wish in hindsight we'd done differently. And honestly, like, I probably. I'm gonna get in trouble for doing this. But there's like, in that spirit, like, I felt bad that I felt that I don't feel like we got any facts wrong. In fact, I know we didn't get any facts wrong. I also 100% comfortable with the reporting that we did and the methods we used. Judge just kind of spun this into like something about how, you know, we were using shady reporting tactics, which is not true. The thing I wish in hindsight that I personally had done a little differently is that I'm not sure we needed. I needed to be part of two separate stories digging into the like, nitty gritty details of what Kavanaugh did during his high school years. In his yearbook, again, there was obviously, in the context of Christine Blasey Ford, much very well deserved scrutiny of his behavior at that time and whether he was telling the truth about his conduct at the time. And that was the spirit in which those articles were written. I feel like I didn't need to go in such detail twice on, just from a kind of a news judgment standpoint. And I feel like it created an impression with some readers that we were obsessing over like a high school era screw up. And again, that's not talking about Christine Blasey Ford's allegations. That's simply talking about him talking about being drunk all the time and.
- [34:59]
Mike Pesca
Right. You know, drunk in high school or maybe he and his friends, like, kiss this girl or something.
- [35:03]
David Enrich
Yeah, they were just.
- [35:04]
Mike Pesca
Yeah.
- [35:05]
David Enrich
And again, I'm not condoning any of Kavanaugh's behavior. I'm just saying personally, having reflected on this for what, like seven years now or six years, that I think that I personally overdid it a tiny bit. Again, the facts were right, our reporting methods were solid. And I don't. Again, this is. These are two stories in the context of what must have been hundreds of stories that the New York Times did. I'd never spoken to Mark Judge. I never sought to speak to Mark Judge. I never sought to talk to any of his friends or family members, to my knowledge. So, like, Judge has used this, used me candidly saying there's some things I would have done differently this time or differently next time. He's spun that into me suggesting that there's something wrong with our reporting or that we were doing shady stuff. And that's. I mean, I guess it's kind of my fault for not having been more specific with him and just like dangling that out there. But. Well, there you have it. That's. That's the full story.
- [35:59]
Mike Pesca
Well, that is my question. Is it your fault for not being more specific or just engaging at all? He clearly did not engage in a good faith reporting of what your exact qualms were. He just held it out like, yeah.
- [36:16]
David Enrich
I don't want to, like, I don't want to make this worse by suggesting that judges something wrong. I don't personally like, like the tactics that he and some of his allies use, especially on social media to harass people but like, and to kind of twist things. But look, all I, I, I think he quoted literally everything I told him. Again, this was over like instant messenger text or something. And so it's just, it's all there. And then I saw how he kind of spun it everywhere and I was like, I'm not going to talk to you anymore.
- [36:47]
Mike Pesca
But yeah, he says that you are having an attack of conscience. Doesn't seem to me that, well it's.
- [36:53]
David Enrich
Not an attack of conscience. I'm trying to be reflective and introspective and like self critical when I am trying to like kind of walk the talk or talk the walk or whatever the expression is. And I, I again this is something where I in hindsight like knowing what I know now and having the added wisdom of six years or whatever, like I would do things a little bit differently and I don't think there should be shame in the media about acknowledging when we want to do something a little bit differently in hindsight. And I feel like judge was like very, purported to be very refreshed by my candor and then proceeded to really kind of twist the knife in my back back. That's how it felt to me.
- [37:34]
Mike Pesca
Huh. Do you regret or have whatever pangs of conscience? Because here we are years later, Kavanaugh is on the court. The things that you wrote about did not lead to some deeper scandal of him being anything other than a high school boy. So with the benefit of hindsight and retrospect, the stuff that might have seen seemed like it was going somewhere, didn't. And so there therefore you could say, oh, we didn't need two stories.
- [38:11]
David Enrich
No, that's really not what it is. Like there's like our job as journalists is to do our best at kind of telling the truth and holding powerful people to account. That at least that's my conception of it. And this was a good faith effort to do that. Like we, Christine Blasey Ford had come forward with some very serious allegations about Kavanaugh during his high school years. My colleague Kate Kelly and I sought out among like 15,000 other reporters all over the country, sought out. We were trying to either substantiate or refute those allegations based on what Kavanaugh was like during his high school years. I think that is a worthy line of inquiry. I think. I think that if we had learned a bunch about what a choir boy Kavanaugh was, we probably would have done that story, but we probably only would have done it once. And so I guess that's kind of my thing for. I wish we had done this story once rather than twice, because I don't think we needed the. I just don't feel like we needed to hit it twice. And I think it created the impression with, like, a fair number of readers and certainly with our. Among our critics that this was us, like, you know, trying to take someone down, which is not. I understand why people would think that. And I think that's a perception that people often have of investigative reporting. And the truth is, that's not what this was. This was us trying to figure out what the truth was. And again, like, there's. I do think we figured out what the truth was in these particular cases. I think we. The facts were accurate. I have 110% confidence in the propriety and ethics of our.
- [39:47]
Mike Pesca
The truth of him. Him getting drunk with friends in high school.
- [39:50]
David Enrich
Yes, exactly.
- [39:52]
Mike Pesca
Not the truth of Blasey Ford. Yeah.
- [39:54]
David Enrich
No, I have no idea. Yeah, I don't. I mean, look, there's been a ton written about the Blasey Ford allegations. I don't know what the truth is there. I rely on what I read in the media for that. And that's. I was not trying to answer that question. We had a much narrower task that I think could have been achieved through one story rather than two. And I wish that's what we had done. But I also, you know, it's like, I'm not, like, staying awake at night beating myself up over this. This is. He judge asked me a specific question about his or about my reporting that kind of indirectly touched on him. And I gave him what was meant to be a candid answer and instead opened up like a whole can of worms. I kind of regret opening up. And now I've, like, opened up 15 more cans of worms with you right now, which is.
- [40:39]
Mike Pesca
Well, I got it. I just want to ask you one more. One more question about this. And it's that you. You've said a couple times, good faith, effort. And I take it on faith that it was good faith and the reporting was accurate. And this was, of course, the most. The biggest story going, if not these particular slices of it. But you also said, you know, in retrospect, it could have given the impression. So is the. If you want to say regret or if you. In a more perfect world, if you had to recast what you did. Is it. I'm hearing that it was overkill. This is a word in my mind that I'm coming back to. His bit of overkill to do two stories is. But what about the idea that at the time, if we can't know about what sometimes called the he said, she said, if we can't really nail down the details of a sexual assault allegation. A useful purpose of journalism is to report out many of the details about the person alleged to see if there was a pattern. And I'm wondering if you look back and say either that there are flaws to that way of doing. Reporting on he said, she said allegation, report out everything else that the person might have done. Or maybe you say that at the time, the two stories you did could be seen as contributing to fleshing out what kind of person. But in retrospect, it really didn't.
- [42:05]
David Enrich
No, I. I'm not sure I would characterize it in either of those ways. I mean, there's. I agree with you. Overkill is kind of how I have come to see this, to be honest with you. I think I'm just trying to think how to, like, frame this in a truthful way. Like there's. Because it's complicated. Right. Like, I don't think I do. And I should also say here that I don't have a lot of experience reporting on sexual assault allegations. I've surrounded by colleagues who are the best in the business of doing this. I am not one of them. So. But you're right that this is kind of part of. This was part of an effort to, you know, it was kind of he said, she said. There was not a whole. To my record, to my. I might be getting this wrong. My recollection is that there was not a whole lot of hard evidence supporting what Blasey Ford or what Kavanaugh were saying.
- [42:51]
Mike Pesca
And no, it wasn't. That's why Blasey Ford's testimony was all about being lodged in hippocampus.
- [42:56]
David Enrich
I remember that there's. And so our job is to try and stand that up or shoot it down. And looking at someone's kind of contemporaneous behavior, which is what we were doing, is, I think, generally like a good part of trying to answer that question. Now, does it stand on its own as validation or refutation of the underlying conduct? No, it absolutely does not. And to me, this is why it would have been better. As if there's one story rather than two, because we had. In the first story. I can't even remember which of these two stories came first, but in whatever story came first, we did a pretty good job, I think, as. As had many others, like, of showing that Kavanaugh was drinking a lot. He was speaking in very disrespectful ways toward women or girls. And that is the point, right? In our defense. In my defense, the reason there were two stories, if I'm recalling this correctly, is that, you know, this is a very competitive story. There were congressional hearings that were about to start. We felt that it was important to get whatever we could in the newspaper to, like, allow for public debate and public transparency about this. And so we, you know, as journalists are. Want to do, we went as fast as we could. And that meant that only half of the story or, well, only one of the stories was there to be published. That's my recollection. Again, this is six years ago, so if I'm. I hope I'm not getting these facts a little bit wrong, but, I mean, I can tell you definitively that this is. This is something that there's a fair amount of introspection at the New York Times about this type of issue. In hindsight, on lots of stories, we talk about things. We debate things. We recognize that we get things. Sometimes we get, like we overplay something or we underplay something. And I was trying with Judge, when he asked me this question, to just give. Like, I was just trying to be honest with them, and they're. I feel like it kind of backfired. And, you know, I've actually apologized to some of my colleagues internally because I blindsided them with that. And so now I'm gonna have to apologize to some more of them because I'm talking even more about this with you.
- [45:05]
Mike Pesca
David Enrich is the author of Murder the Truth, Fear, the First Amendment, and A Secret Campaign to Protect the Powerful. It is an excellent book. And his book tour and apology tour continues apace. Thank you, David. I appreciate it. And I do. I literally do appreciate your attempt at being honest with all the issues we talked about.
- [45:26]
David Enrich
Thanks for having me.
- [45:33]
Mike Pesca
And that's it for today's show. The Gist was produced by Cory Wara and Michelle Pesca is the CBSO improve G Peru Duper. Thanks for listening.