THE BLOG
11/24/2016 11:37 am ET Updated Nov 25, 2017

Mainstream Media Deserves Disbelief

The mainstream media deserves disbelief.

It chronically publishes false or misleading stories by omitting material facts necessary for reader understanding. If the mainstream media were selling stock instead of news protected by the First Amendment, the Securities and Exchange Commission would have a full docket under SEC Rule 10b-5 prosecuting cases of misinforming readers by omitting "to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading."

Emblematic have been a proliferation of stories or editorials expressing alarm that President-elect Donald Trump had stated in a November 22 interview with The New York Times that he would not pursue criminal investigations of Hillary Clinton's use of a private email server while serving as Secretary of State or the funding or operations of the Clinton Foundation. It was said or insinuated that the President-elect was improperly interfering in the operations of the Department of Justice and the FBI.

Exhibiting a spirit of magnanimity, the President-elect explained to the Times:

"I don't want to hurt the Clintons, I really don't. She went through a lot and suffered greatly in many different ways, and I am not looking to hurt them at all. The campaign was vicious."

In other words, Mr. Trump had decided that the Executive Branch would exercise the prosecutorial discretion conferred under Article II of the Constitution to heal rather than to convulse the nation.

On this score, Mr. Trump was following the instruction of President Barack Obama. He refrained from investigating former President George W. Bush, former Vice President Dick Cheney, and other high level Bush administration officials for acknowledged complicity in torturing alleged Al Qaeda terrorists with waterboarding to avoid political divisiveness. In a White House press conference on April 29, 2009, President Obama affirmed, "I believe that waterboarding was torture...." During his confirmation hearing as Attorney General Eric Holder testified: "Waterboarding is torture."

The federal criminal code, 18 U.S. C. 2340A and 2441 prohibits torture or any conspiracy to torture Al Qaeda suspects detained abroad. The Convention Against Torture, which the United States ratified in 1994, requires signatory nations to "ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction."

President Obama, nevertheless, exercised prosecutorial discretion to desist from any torture investigation of the former President or Vice President because "I have a belief that we need to look forward as opposed to looking backward." He opposed a "Truth Commission" on torture proposed by Senator Pat Leahy (D-Vt.) because, "We want to look forward and not back."

Thus, President-elect Trump was following in President Obama's footsteps in deciding against a criminal investigation of Ms. Clinton or the Clinton Foundation. Indeed, Mr. Trump's decision was far less momentous that Mr. Obama's because torture is a crime against mankind, whereas the suspected crimes of Clinton and the Foundation implicate far less moral turpitude.

But while President Obama escaped any mainstream media rebuke for turning a blind eye to prosecuting open and notorious torture suspects according to his own and Attorney General Holder's understandings of the crime, President-elect Trump has been scolded for alleged constitutional or ethical waywardness. On November 22, 2016, for instance, The Washington Post published a news story declaring: "If Trump decided to pursue or not pursue a criminal investigation from the Oval Office, it would be an extraordinary break with political and legal protocol, which holds that the attorney general and FBI make decisions on whether to conduct investigations and file charges, free of pressure from the president." But the newspaper story failed to inform the reader of President Obama's decision not to pursue torture investigations against high level Bush Administration officials, which would have discredited its alarmist narrative featuring President-elect Trump.

Ditto for its failure to report that President Gerald Ford had similarly dictated administrative, alternate service dispositions to resolve outstanding prosecutions of Vietnam Era draft evaders in Proclamation 4313 issued on September 16, 1974. I was then serving as Assistant Director in the Office of Legal Planning at the Department of Justice. Not a single official in the Department believed the Proclamation represented improper Oval Office interference or violated any protocol.

If the mainstream media hopes to recover public credibility, it should begin by voluntarily adopting the equivalent of SEC Rule 10b-5 to insure reporting all of a story, not misleading fragments.