BuzzFeed itself made news Tuesday when it published a 35-page dossier detailing Donald Trump’s alleged relationship with Russia.
Most news outlets, including the Times, The Washington Post and CNN, refrained from publishing the document, which as far as I know remains unverified. Dean Baquet, executive editor of the Times, said his organization would not publish “totally unsubstantiated” allegations.
BuzzFeed said it published the dossier “so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the US government.”
But how can readers make up their minds about the truth of the charges, which include claims of meetings between Trump aides and Russian operatives, as well as sexual acts? As Erik Wemple wrote in The Washington Post, “Americans can only ‘make up their own minds’ if they build their own intelligence agencies, with a heavy concentration of operatives in Russia and Eastern Europe.”
That intelligence agencies briefed both the president and president-elect about the allegations did not sway me either. I imagine the agencies brief the president about all sorts of unsubstantiated information – possible terrorist plots, for example – that I would be in no position to assess if I learned of them.
At the same time, the existence of the dossier was known throughout official Washington. Mother Jones reported the information in October. Senator John McCain said he passed the dossier to the FBI.
As Jack Shafer argued in Politico, “… when such a report is flung about by people in power, as this one was, and its allegations are beginning to inform governance, more damage is done to trust in government and confidence in journalism by withholding it from public scrutiny.”
Ben Smith, BuzzFeed’s editor-in-chief, appeared Sunday on CNN to defend the decision to publish. “Our job is not to be gatekeepers,” he told host Brian Stelter. Smith compared the dossier to an indictment – a charge of a serious crime – which news outlets report on all the time, usually by prefacing the allegations with the word alleged. As Smith sees it:
We are I think well within the tradition of American journalism, which is every time you use the world ‘alleged’ on your air, every time you see the word ‘alleged’ in print or on the web, that is saying we are repeating a claim we can’t verify. That is totally, within the standard particularly of covering law enforcement.
The dossier reportedly originated as opposition research commissioned by one of Trump’s Republican rivals for the White House. It was later championed by a Democrat, though not necessarily the Hillary Clinton campaign.
To bring criminal charges, prosecutors generally must have probable cause, which courts have construed as meaning they must have a reasonable basis for believing that a crime has been committed.
According to the Justice Department’s charging guidelines, the requirement of probable cause merely begins the inquiry and does not alone automatically warrant prosecution.
“On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well,” the guidelines instruct.
Opposition researchers do not need to worry whether an allegation will hold up in court.
That’s not to suggest that criminal charges necessarily have merit because prosecutors have assessed probable cause or that charges do not need to be substantiated. But they reflect a calculation by prosecutors, as the guidelines put it, “that the admissible evidence will probably be sufficient to obtain and sustain” a conviction.
Of course, journalists are not prosecutors. And I share the instinct to want to provide readers with primary sources. But the dossier differs from an indictment.