Robert Capers is the United States Attorney for the Eastern District of New York, former home to Loretta Lynch and the once-lovely and genteel Idlewild Airport. Lynch has now gone into the history books as a former Attorney General. Idlewild is now a dump called JFK Airport. There was nothing lovely about the place following the Friday Fiasco of Trump’s travel ban.
According to the Harry Siegel of the Daily News, Capers was home that Friday when he received a call from the White House. No, not the big guy. Not even the other big guy. The little guy. This guy, 31-year-old Stephen Miller, who may be the most unpleasant face to ever greet a Sunday morning.
Siegel describes the call thus:
In the chaotic hours after President Trump signed on a Friday afternoon the sloppily written executive order meant to fulfill his Muslim ban campaign promise, Stephen Miller called the home of Robert Capers to dictate to the U.S. Attorney for the Eastern District how he should defend that order at a Saturday emergency federal court hearing.
“Dictate”? Miller is no lawyer. Miller never went to law school. Miller isn’t a law professor despite these two things. So who is Miller to dictate anything to a United States Attorney?
That’s according to a federal law enforcement official with knowledge of the call, which happened as Department of Justice attorneys cancelled plans, found babysitters and rushed back to their Brooklyn office to try and find out what exactly it was they were defending and who was being affected by it — how many people were already being held in America, how many were being barred from arriving here and the exact status of each person.
This is what gives rise to shouts of “fake news,” not because it’s necessary fake, but because it’s entirely unproven. Siegel has third-hand information from an unnamed source that this call happened. Let’s assume, for the sake of argument, that the call happened. There’s been no denial, so it’s a fair assumption, even though it’s still an assumption.
But the characterization of “dictate” is Siegel’s. There are no quotes around it, suggesting the word came from Siegel’s thesaurus and not his source.
And who is this source? Unnamed sources have become pervasive of late. We had the most famous unnamed source, Deep Throat, who was so unusual, so deeply vetted, that the Washington Post, when it was a newspaper, took down a presidency with it. But then, it was so unusual that the name “Deep Throat” is remembered by all. Every story based on unnamed sources isn’t Deep Throat. It’s rumor.
The source, according to Siegel, is a “federal law enforcement official,” meaning not a member of Capers’ staff. How does he know about the call? Was he at Capers’ home at the time? Did he listen in? Did he hear about it around the water cooler? There isn’t a hint as to how he came upon this information.
But the most important question is what was said by Miller to Capers.
The Eastern District declined to comment on any contact between Capers and Miller, the 31-year-old former Jeff Sessions aide and America First true believer with no legal background of his own, who a few months ago was warming up Trump’s campaign crowds and is now writing executive orders for the President to sign.
There are two separate and entirely things done in Siegel’s sentence. First, the “Eastern District” declined to comment. Notably, the Eastern District is not a person, but a geographical designation. Usually, only people speak.
But the second thing, done in the same sentence, is to denigrate Miller as much as possible. Not that Miller doesn’t deserve it, but it deflects attention away from the topic, that there was no information provided to Siegel. When you have no information, smear the participants?
We know that Capers didn’t refuse or resign but kept the stuff rolling downhill. It landed on his civil division chief, Susan Riley, who appeared herself Saturday, perhaps to protect attorneys in her shop from the humiliation of publicly telling a federal judge on behalf of the White House that she had no clue what she was talking about.
Had the content of the telephone call reflected an attempt by the White House to politicize the EDNY United States Attorney’s position in court, one would expect, hope may be a better word,* that Capers or Riley would have refused to play. Whether refuse or resign, one or both would not have allowed themselves to become subject to improper political influence from the White House. This has happened before, and resulted in scandal, as well as it should.
But this time, there was no refusal or resignation. There was no statement by Capers that any impropriety happened or was suggested. Riley didn’t walk. Capers didn’t walk.
There are potentially bad things Miller might have said to Capers. And there are potentially benign things. Assuming the call occurred at all, we cannot attribute words and nefarious purposes to Miller because he’s such an unattractive young man. There is absolutely nothing in Siegel’s article to provide a factual basis to believe that any impropriety occurred, no less some forced diktat from some white supremacist to politicize the actions of the EDNY United States Attorney.
Is it possible that something really bad happened, that this unnamed source in law enforcement is right, that Siegel’s characterization and innunendo captured it, that Robert Capers and Susan Riley are complicit in this scandal and unwilling to risk their careers by coming forward and outing the impropriety of this despicable weasel kid? Of course it is.
But being lawyers, we can only work with the facts available, and Siegel is shooting blanks. What he offers is a series of baseless inferential leaps, infused with the taint of Miller’s awfulness to fill the void where a journalist would have used facts, to create the impression of impropriety and foster outrage and hysteria.
Except there is nothing whatsoever to show that any impropriety occurred. Hate Trump, and Miller too, all you want, but in the absence of facts, don’t indulge in fantasy. Lawyers use facts. We’re still lawyers, even though reporters have given up on facts to support their advocacy.
*If Siegel’s series of assumptions are real, then Robert Capers is complicit in this impropriety for not revealing, refusing and/or resigning. Does he suggest that Capers is now part of the Trump “conspiracy” to subvert the independence of his office and the rule of law?
SG: “There are two separate and entirely things done in Seigel’s sentence. First, the “Eastern District” declined to comment. Notably, the Eastern District is not a person, but a geographical designation. Usually, only people speak.”
SG: “Had the content of the telephone call reflected an attempt by the White House to politicize…”
SG: “The White House Calls” (the title).
In other news, the White House appears it might be a person.
Maybe, you made the same “mistake” ironically but it’s not really a mistake (it’s a common metaphorical usage).
As for the title. you misapprehend the word play. Don’t feel badly. Most people do. But don’t confuse my reference back to the impropriety raised by the NYDN article suggesting improper WH influence with his reportage. He’s writing a factless story. I’m commenting on his story.
If he’s going to write about someone declining comment, then basic reporting would require that accurate info be provided, such as a name, the question asked and the actual response. The response may well have been limited to “I decline,” but did Capers say that, a spokesperson? Did they affirmatively say that or fail to reply to an email or phone call? I realize this is a tough one, but I have faith in you.
Hope this isn’t off topic. But I really prefer your phrase “Factless Story” over the amorphous phrase “Fake News”
It’s all trite already. If a phrase can last a day, we’re lucky.
Interesting point, it like the whole world has shiny object syndrome on a daily basis.
“It’s all trite already. If a phrase can last a day, we’re lucky.”
Very dangerous slippery slope here. Fortunately we’ve already hit rock bottom.
SHG: “As for the title. you misapprehend the word play. Don’t feel badly.”
I didn’t miss the word play in the title (the metaphor wasn’t just used in the title).
SHG: “He’s writing a factless story. I’m commenting on his story.”
Which I got (and appreciate).
SHG: “If he’s going to write about someone declining comment, then basic reporting would require that accurate info be provided, such as a name, the question asked and the actual response.”
I suspect basic reporting routinely doesn’t include this information unless it’s the head of (or some one with a similar degree of notability representing) the organization. That no name was mentioned is an admission that the contact (if any) wasn’t notable.
Well, this was fun and useful.
if corporations can be people, why can’t the eastern district speak?
It’s not a corporation.
“we can only work with the facts available”
You are such a giant stick-in-the-mud killjoy I swear.