Anatomy of a lie.

President Trump claims millions of people committed voter fraud. We’ve been told he plans to launch an investigation into this alleged fraud. Here’s what we know: this is false. There is no proof. No one has corroborated this investigation.

(Maybe I should say few people have corroborated; a golfer friend of President Trump’s is the origin of the claim.)

Under normal circumstances, this is a lie. Journalists understandably have to take a more cautionary approach. There’s risk in publishing something so strongly worded. For starters, it’s so concrete a statement and rooted as a factual allegation that it would trigger libel concerns. No worries in this specific situation because a defense to libel is truth and the bar for a public figure is malice, but it’s still part of a publication’s calculus.

Another hurdle is the integrity of reporting. There’s always the usual concern over due diligence and corroboration, but there’s the additional risk of political reporting where truth exists on a spectrum. By this I mean not every statement exists on a binary scale where we can measure its validity and determine in an absolute sense if something is exactly true or exactly false.

There’s virtually no argument over the falsity of this Trump’s claim. Rather, the hand-wringing that has occurred is the severity of language publications should use. The New York Times decided to use the word “lie.” NPR used “falsehood.” NPR justifies its use by way of the dictionary, which requires intent and, they argue, they cannot know what goes on in the president’s mind:

“A false statement made with intent to deceive,” Kelly says. “Intent being the key word there. Without the ability to peer into Donald Trump’s head, I can’t tell you what his intent was. I can tell you what he said and how that squares, or doesn’t, with facts.”

I disagree. Now, they’re journalists, and I’m a lawyer, so our problem-solving mechanisms are likely quite different. Plausible deniability is something with which us law-folk are quite familiar. Many people like to believe the law is read so literally that you can be vindicated under the most technical reading of the law.

Not so. People do not act literally; we do not bind ourselves to linear readings of behavior. We speak casually and we contort. Sometimes we act deliberately, but nonetheless rashly. The law captures this and, when determining liability or culpability, will frequently impute knowledge and intent. Thus the standard for “intent” is would a reasonably prudent person or should a reasonably prudent person have known X, where “X” is an act that would happen.

I think that should be the standard here. No, I’m not arguing for legal culpability or anything of that sort. I do want to argue that this is a useful framework, especially when writing about someone who is potentially very well-practiced in deception (“truthful hyperbole.”)

If President Trump did not already know that his claim was false, he should have known. This information is readily available. As president, he has ample resources at his disposal to uncover the truth. The bare minimum of due diligence on his part would have revealed that voter fraud is sparse, let alone rising to the threshold of millions of people.

Moreover, this standard can ramp up. A reasonable person – human buzzkill, the kind of person who always looks both ways, runs against traffic, and uses his blinkers – could have accomplished the above. President Trump is President of the United States. Our bar for the presidency is high regardless of our thoughts on the outcome of the election. No one would claim that idiocy is the standard by design, all joking aside. In a car accident, I would be held to the standard of a reasonably prudent person because I’m an average driving adult. A professional driver, in contrast, would be held to the standard of a reasonably prudent professional driver, complete with his or her entire sophisticated and practiced driving skill set. President Trump should be held to the standard of a reasonably prudent President.

Likewise, when it comes to public claims made to the American people and have shocking implications about the state and integrity of American democracy, the President is not held to the standard of the average twitter user. He should be held to the standard of the Commander and Chief of the United States – doubly so when he requires his press secretary, official representative of the White House, to evangelize these claims.

Finally, this is a pattern. Trump’s claims predate his inauguration. People, including presidents, make mistakes, speak quickly, and sometimes casually. Even if we were to be forgiving about the above standard and argue this was a passing comment, that is contravened by the fact that he has repeated this argument. There is no ambiguity in his intent to spread what is frankly disinformation.

I understand the hesitancy. A peril of political reporting is that politicians make spurious statements all the time. One also doesn’t want the potency of “lie” to be entirely loss. Tossing strong language around is a way to completely undermine the power of those words, and thus we want it reserved for the most egregious acts.

By way of contrast, President Trump’s claim that Mexico will pay for the wall is specious at best. The proposed 20% tariff will foreseeably land on the American consumer. However, it’s not false. Mexico will pay that tariff. We can argue that Mexico’s decision to pass that along to the consumer is independent and out of the hands of the administration, and that they’ve fulfilled their obligation by attempting to hold Mexico to account. It’s dubious and arguable, but it’s precisely because it occupies such a gray area that we need to provide some benefit of the doubt to politicians operating in an imperfect world with fallible human institutions.

That’s not the case here. The repetitious nature of President Trump’s claims, coupled with his utter lack of due diligence and failure to corroborate or otherwise provide some prima facie (face value) case for his claim has every indication that he knows he’s wrong. Even if he’s completely bubbled, he absolutely should know and it’s fair for publications to impute that intent on him for the aforementioned reasons – namely that he had ample opportunity and resource to uncover the veracity of his claim and either didn’t or chose to act contrary to it.

I’m frankly not sure of any other situation where “lie” might appropriately be used. Publications presumably think that the word is acceptable in some circumstances or else we wouldn’t be having this debate at all. The mind reader standard completely precludes this ever happening, though. Short of walking out on stage and prefacing his statement with “Okay, I’m going to lie now,” we’ll never know the inner motivations of President Trump or any other human beings. We do not possess the capacity to meet NPR’s hurdle.

To conclude, the Prudent President standard illustrates the level of disregard for proof that is palpable and within the realm of actual human faculties, and therefore this is one of those rare occasions where a judicious use of “lie” is wholly appropriate.

Ethics in journalism – no, for real this time.

Tons of thoughts swirling about Buzzfeed’s decision to post the unverified dossier on alleged Trump actions while in Russia.

Pardon my sarcasm: but I’m sure many of you can take a hint with words like “unverified” and alleged.”

My sarcasm stems from the rather patronizing admonishments towards Buzzfeed, which seemingly revolve around the understanding that readers are going to be misled by its publication — a publication Buzzfeed took great pains to explicitly note had not been corroborated.

If it’s not verified, why publish? Because the newsworthiness of this publication was primarily in that it existed; that politicians and journalists alike knew of its existence; that politicians and journalists were talking about it; that Trump and Obama were both briefed on its existence; that John McCain had passed this to the FBI prior to Election Day; that there are facts consistent with the allegation that Trump (either directly or through his campaign staff) have some connection with Russia, and; this connection could range anywhere from deliberate and nefarious to incidental and potentially reckless.

Even if this turns out to be false – and I suspect a lot of it probably is – few people (if any) are defending this on the basis of absurdity. There’s enough of a brick wall of concern regarding Trump’s business and potential Russian ties that keeps this within the realm of plausibility. That’s not just newsworthy; that should get over the hump for official inquiries and investigation.

It’s frankly absurd that the political and media class get to blanketly gatekeep information highly relevant to the American people both as voters and as citizens. For the latter, this should increase demand for Congress to require some kind of disclosure on behalf of Trump with respect to his international business ties, including, potentially, Russian ones. Likewise, the allegation that his staffers, some of whom have a direct working relationship with powerful Russians, visited Prague, is especially disconcerting in light of confirmed intelligence reports of Russian interference with our election. All of this makes the mere existence of this publication material to our interests.

Moreover, it begs into question why James Comey made the unprecedented decision to release two letters on the cusp of the election regarding Hillary Clinton’s e-mails, but not with respect to the existence of this rough report. Comey made this release before warrant with any kind of specific request was made; there was no concrete knowledge of what those recently found emails entailed (it ended up being nothing) but it was nonetheless deemed important for voters to know.

I understand the concern about feeding the right wing narrative that the media is out to get them. I also get that now the right has co-opted the fake news concerns, framing themselves as the victim. These are bad, yes, but given a call between free information for democratic readership and the continued attempt to discredit the media, the former wins.

It’s important that news media play their hand carefully with respect to maintaining and rebuilding their credibility, but that was lost in a separate conversation about false equivalencies and disproportionate critique of candidates. The narrative that the media is part of some vast left wing conspiracy to harm Republican interests is, however, not new, and the attempts by many outlets to assuage their fears by cow-towing to them is what got us to that coverage issue in the first place. Moreover, while this is an important conversation to have, it’s more about reputation-building and narrative-crafting. Ethics are not dictated by how well those ethics are received. They simply are, and let’s not conflate the “Was this ethical?” conversation with machinations.

As a reader, I’m personally glad Buzzfeed published the report. Knowing it was unverified, I took the substantive part of it with a grain of salt. My main takeaway was that someone considered credible had this information, passed it to his contacts, and my government sat on it. Meanwhile, they were bending over backwards to accommodate and, arguably, fan an e-mail scandal close to election day where there was a heightened potential of influencing its outcome. (Update: boom.)

The publication hammered home not just that some amorphous report was out there, yet another intelligence report on the Russians lost in a sea of intelligence reports about the Russians and Trump. Armed with this information, it only bolsters my concerns and suspicions about the tie between my president-elect and a nation hostile not just to our government, but the ideals upon which that government was formed. That goes a lot farther than “salacious.”

I don’t begrudge other outlets for their timidity. Media ethics have long told reporters that they’re gatekeepers in the sense that publishing unverified information without context can be misleading and fraudulent. However, I think whether something is misleading turns an awful lot on the circumstances and the information provided. If everybody part of a special class gets to talk about unclassified reports and it can be clearly published as an unverified, uncorroborated report, I’d respectfully request that they give readers some benefit of the doubt that they know what those words mean.

The value of print media.

On the whole, I have heard a lot of journalists wax poetic about print media. I think there’s a lot of romanticism going on here, but there is one thing of value I’ve been mulling over, and that’s the value of having limited real estate.

By “real estate,” I mean the physical space on which words are printed. There are only so many pages one can use, and only so much space on that page. This creates an increased imperative of prioritization that doesn’t exist in digital media.

Prioritization exists in both print and digital media, but I think the increased amount comes from the limitation of finite space. With digital media, you can (theoretically) put every bit of information on your site and prioritize therein. With print media, you need to decide which information even gets to the paper and prioritize from there. The result is that there is a likely cut of stories that have a de minimis political, social or cultural value.

Another way to put it would be like having an open-book test that lets you bring a one-sided notecard. Maybe you’d be tempted to lug around your textbook or thirty pages of notes if given the chance, but the physical space forces you to only include the most important information. From there, you probably put the most likely to be tested information at the top and prioritize in descending order.

What spurred this thought was a conversation about why I don’t care much about cable news. If I have it on, it’s probably to have noise in the background, not because I think it really gives me a lot of necessary information. There have always been twenty-four hours in the day but has there always been twenty four hours worth of news? While we can certainly argue about the news value of some lighter stories, if CNN et al. didn’t have the objective of filling in that time, a lot of stories probably wouldn’t make the cut. In fact, some of these stories probably wouldn’t be proposed, as I think there’s a high likelihood that a lot of non-news is dramatized to fill that space.

Likewise with websites that, I feel, don’t have any nefarious intent or machinations to mislead or distract, but nonetheless try to occupy the space given to them, which is a lot. It’s possible we’re, as a journalism-heavy society, woefully out of practice when it comes to sifting through all the news in a given day and deciding which stories are of consequence and which are not. Perhaps if journalists and readers alike had to revive this exercise, we’d not only be less saturated in “light,” irrelevant, dramatized, or clickbait stories, but we’d also be better practiced at deciding which stories are worth consuming and which are merely placeholders.

Too simple? Low hanging fruit? Let me know. I’m curious to hear others’ perspectives.