Noted legal journalist Jeffrey Toobin sat down for an exclusive interview with the Campus Times, fielding questions about the Supreme Court, the state of media today, and his career as both an attorney and a writer. Toobin is the senior legal analyst for CNN, a staff writer for The New Yorker magazine, and the author of several books about the Court and legal affairs, including “The Nine,” “The Oath,” and “The Run of His Life: The People v. O.J. Simpson,” upon which the eponymous FX television series was based.
This interview was conducted on Oct. 14 and has been edited for style and clarity.
Campus Times: How has the experience of covering the Court changed in the last year?
Jeffrey Toobin: One of the things about the Court is, as an institution, it is remarkably unchanging. The rhythm of the year is always the same. You have the first arguments in October. You have the biggest decisions coming down almost always at the end of June. You have the summer off. They’re the only part of the government that just simply decides to take three months off in the summer, which I always find unbelievable. So in that respect, it doesn’t change.
What is very significant is the makeup of the Court. And the difference between Merrick Garland and Neil Gorsuch is just enormous. We’re just starting to absorb how that’s going to play out. The Supreme Court, in my view, is a political branch, and the political winds affect the Court. And that’s what I watch.
CT: The Supreme Court has been famously tight-lipped about what goes on behind the scenes. How do you go about finding people who are close to the Court who are willing to share their experiences?
JT: That is, frankly, the biggest challenge of covering the Court. And on a day-to-day basis, I am not doing a lot of behind-the-scenes reporting about the Court. I did a lot of it for “The Nine” and “The Oath,” and that was the main focus of my energies. But I’m not writing a Supreme Court book now, and so mostly I am focused on the public face of the Court. Fortunately, I’ve been covering the Court for long enough that I do have some entrée into the inner workings.
I am always aware that the most important thing they do is public. Justice [John Paul] Stevens always used to say, “I don’t know why people call us secretive. We’re the only branch of government that explains in writing the reasons we do what we do.” And you can sort of see his point, but you can also see that it’s not exactly right, either. I do try to keep the focus on the decisions. The decisions are what matter, and the decisions are public.
CT: You said you see the Court as a political branch. Has the reputation of the Court as an apolitical or impartial branch changed? How does that affect the gravity of its opinions?
JT: Thanks, I hope, to me and others who cover the Court, I don’t think anyone seriously believes that the Court has ever been outside of politics. If you look at the important decisions of the Court’s history, they’re always intimately bound up with what matters in the country, whether it’s the birth of the government in Marbury v. Madison in 1803, whether it’s slavery in Dred Scott in 1857, whether it’s industrialization with Lochner. The idea that the Court is removed from politics has never been true.
I don’t think the justices are exactly like the politicians who have the face the voters every two, four, or six years. But I do think they are chosen because they reflect a certain ideology, and that’s always been the case.
One of the things that I’m always a little defensive about with the Court is one of the criticisms: “Why do they have to be so political? Why can’t they just do law?” I’ve always thought that’s just impossible. Does the Constitution protect a woman’s right to choose an abortion? Can a university consider race in admissions? Those are questions that just can’t be decided independent of politics.
CT: You called the Court’s refusal to allow television cameras during oral argument “disgraceful” because it inoculates against public scrutiny. Do you think that policy is likely to change anytime in the near future?
JT: The short answer is no. One thing all the justices have in common without regard to politics is that they are all protective of the institution. They all want the Court to remain respected and trusted and followed. I don’t blame them for that. I do think that the possibility of cameras has the potential for a change in how the Court is perceived, and I understand why they would want to proceed cautiously.
What I find completely inexcusable is that the audio of the arguments is not streamed live on the web. That, to me, is a completely indefensible position. The way it works now is the arguments are released on the Friday of the week that they are argued. But, you know, we’re in the news business. The news is the day of the argument, not three or four days later.
I certainly disagree about whether cameras should be in the courtroom, but I can at least understand the arguments against them. I can’t even understand the arguments against live-streaming the audio. But it’s their candy store, and they get to decide how it works.
CT: Why did you make the transition from being an attorney to being a journalist?
JT: I don’t mean to sound 100 years old, but decisions in your life often look more planned out in retrospect than they were at the time. I made considered judgments at various times in my career, but I do think you can overthink these decisions. I think it’s good to go for what you think is interesting at the time. And if it doesn’t work out, do something else.
With that boring caveat: Both my parents were journalists. I always had a foot in both worlds. While I was in law school, I did freelancing. I did student journalism through our college. After my clerkship, I was one of the junior prosecutors in the Iran-Contra case — the Oliver North prosecution, which I decided to write a book about.
I was a federal prosecutor, an assistant U.S. attorney, in Brooklyn after my book came out. And I thought the book was a one-off thing. But Tina Brown got hired as editor of The New Yorker, I had the opportunity to go work there as a “Talk of the Town” writer. I thought, what the hell, I’ll do it for a year or two. How bad can it be?
And a year later, the O.J. Simpson case happened. That completely changed my life because I had some important stories. I started appearing on television. That was the career-making case for me. But I certainly didn’t plan for that, and I certainly had no idea that my career would be so changed by it. That’s just how it all evolved.
CT: How did being an attorney benefit you as a journalist?
JT: It was indispensable, given the kind of journalist I am. I set out to cover law, broadly defined. Through magazines, books, and TV, I have really focused on that. Fortunately, law is such a big subject that it’s hardly much of a limitation.
There are lots of good journalists who cover law without having a law degree, so I don’t think it’s obligatory. I do have a certain expertise in it, so it’s helpful. The stories often affect many different fields, but I keep my focus on law.
CT: How much weight should readers put on stories that deal in anonymous sources — especially stories that deal entirely in anonymous sources?
JT: I think it’s always a good idea to be a skeptical reader. But I also think you should consider the source of the news. I happen to believe that The New York Times is a great newspaper, and is highly reliable — not 100 percent, but if you read an article in The New York Times that includes anonymous sources, it’s carrying the institutional weight of that organization. That matters to me, and I think it should matter to other people.
All of us who use anonymous sources wish it were otherwise. I try to avoid it if I can. But often, it’s a choice between anonymous sources and no sources. As a journalist, you have to make a decision about whether it’s worth it to offer anonymity to a source. Then you have to consult, as I do, with your editors, who always know who the sources are. It is not ideal, but it is a commonplace of American journalism. The number of times that it leads to major inaccuracies in respectable news outlets is pretty small. It’s not zero, but it’s small.
CT: Your magazine, The New Yorker, published a bombshell story on the history of alleged sexual assault and harassment committed by movie producer Harvey Weinstein. In this and similar cases, how should news agencies go about determining what is reportable?
JT: The story of Harvey Weinstein has a long history. I remember my colleague, Ken Auletta, did a piece about Harvey Weinstein at least 10 years ago where he was looking into rumors about Weinstein’s untoward behavior toward women. His lawyers executed a full-court press against The New Yorker to persuade the editor not to run some of it. I wasn’t privy to all of it, but I certainly was aware that this controversy was going on. Basically, they pulled a lot — they pulled basically all the accusations of that nature against him from the article.
These stories are hard to do. If you’re wrong, you risk serious lawsuits. A false statement of sexual misconduct is almost the definition of libel. You never want to be wrong about anything, but you certainly don’t want to be wrong about something that could have terrible consequences for your news organization. Plus, the women who are victims are often very reluctant to come forward. They are sometimes only willing to come forward without identifying themselves, which leads to the issue of anonymous sources. Do you let someone make such an incendiary accusation anonymously? It’s hard to create a blanket rule, but you certainly should hesitate before you do that.
I think what happened was the combination of dogged effort by Ronan Farrow and The New York Times journalists, the passage of time, and the sheer number of complainants led people to go on the record. That makes the story a lot more bulletproof. I’m very proud of The New Yorker for its role.
CT: Do you think political coverage has changed in the last couple of years, with respect to what is considered newsworthy?
JT: I’m not sure I would put it that way. I think political coverage has changed in the sense that it’s become much more aggressive.
I have different parts of my world: The New Yorker always gives its writers a certain amount of license to express opinions or views in the work that we do. CNN always prided itself on being much more down the middle. I am an analyst at CNN, not a straight news reporter, so I always have a little more license. Through 15 years at CNN, I have always taken seriously that idea that it’s the most trusted name in news, and that people are going to us not because they want a party line reaffirmed but because they want good, fair journalism.
Donald Trump really changed the calculus in an important way. He started telling falsehoods in such an obvious way that we had to change how we operate. Traditionally, the rule had been that if a politician had said something debatable, we’d say, “Politician A said ‘X,’ but Politician B said ‘not X.’” — “some agree, others differ” was the model. But with Trump, we started saying he made false statements. Because he makes a lot of false statements. He makes objectively false statements. We have become much more aggressive about calling him out.
The interesting next step that I haven’t taken — and I don’t speak for all of CNN or all of cable news — is, when do you say someone is lying? “False” is subject to a fairly direct test. When he says that his inauguration crowd was the largest in history, that you can just demonstrate is false. But when do you say that he’s lying? Obviously the difference is a matter of intent.
CT: Is the coverage of politics, as opposed to the effects of specific policies, important?
JT: This issue that you’re asking about is a pet peeve of mine. This just came up on “The Situation Room.” We were talking about Trump and Obamacare, and the changes he was making to the Affordable Care Act. One of my colleagues was saying, “Well, this is an appeal to base voters,” talking about it in familiar political language. I asked, “Can we talk for a second about a person going to an oncologist, getting bad news, and thinking, ‘How am I going to pay for chemotherapy?’ It is a factual matter that people who lack health insurance die at a faster rate than people who have health insurance. Can we talk about the policy impact, and the policy, as opposed to the politics of it?”
I think I successfully annoyed my colleagues several times about this, because I do think we spend too much time talking about politics and not enough about policy. But I’m not in charge.
CT: How do you think that affects the way we think about politics in the U.S.?
JT: I don’t have a clear answer for that. The media is not held in great esteem — although Trump has helped. I think people recognize that we have performed a valuable service during Trump’s campaign and presidency.
But remember, we’re a business. We respond to consumer cues and consumer demands. There is not a lot of demand for hour-long analyses of the Affordable Care Act. But there is plenty of demand for who’s up and who’s down, who’s going to run for president in 2020. What viewers and consumers say they want is often different from what their behavior shows they really want. People say there’s too much sex and violence on TV, but they watch sex and violence. It’s just hard to generalize such a big set of actors and consumers.
CT: How did law school shape the way that you think about media?
JT: Sometimes I think that the best thing I learned in law school and law practice is what’s not important. Sometimes I look at my colleagues, and they get a legal document, they get an indictment, or they get a brief, and they’ll go, “I don’t get what all this is about.” I think I can look at a legal document and see what’s important about it, and understand the language and the procedures in a way that I can strip away what’s not important.
Yesterday, we were talking about Reince Priebus having just given his statement to the Mueller investigation. When you are interviewed by an FBI agent, as he was, it’s not under oath. It’s not like testifying before a grand jury, where you can commit perjury. But it is a federal felony to make a false statement to an FBI agent. There is a law called Title 18, U.S. Code § 1001, under which people are often prosecuted for lying to FBI agents. That, to me, is a useful fact to impart to our audience on CNN.
I don’t supply that information because I’m some genius. It’s just that I’ve lived in that world and reported in that world, and it’s something that I know. It’s something that I think I can put in plain English for the audience. And I like that.
CT: We were curious to hear what advice you might have for aspiring attorneys and journalists.
JT: I think if there’s anything that we know for sure, it’s that it’s very hard to predict what law practice, what journalism, or what the economy is going to look like five, 10, 20 years from now. You shouldn’t over-plan, because — what’s the expression? — “Man plans, God laughs.”
I’m a big fan of enthusiasm. If you are enthusiastically embracing some area of the law, chances are you’re going to be good at it, chances are you’re going to find a way to make a living at it. Criminal defense, criminal prosecution — they’re not going away. Just be good at it, be enthusiastic about it, be curious. See what’s happening around you. But don’t think that you need a five- and 10-year plan. I think it’s pretty futile.
CT: One last question: How were you involved with the making of the FX series based on your book?
JT: It was fun, it was really fun. I was involved at different stages. At the very beginning stage, I talked to the producers and the writers about the story and the themes. I reviewed some of the scripts. Not for accuracy, because one of the things I recognized from the very beginning was that this was not a documentary. This was a docu-drama. This was a story based on the truth, but it was not intended to be a verbatim portrayal of what went on. I understood that it was different. But I did know the chronology very well. I knew the characters well. I knew what sounded right and what sounded wrong, and I contributed to that.
The most surprising part to me was that the actors wanted to talk to me. In certain cases, their counterparts were gone. Johnnie Cochran had died, so Courtney Vance, whom I’ve known for a long time, had no way of talking to Johnnie. So he and I talked. David Schwimmer, who played Robert Kardashian, who is also dead, wanted to talk. John Travolta didn’t want to talk to Robert Shapiro, his counterpart. He wanted to talk about what Robert Shapiro was like. Sarah Paulson, who played Marcia Clark, became very close friends with Marcia Clark. She made the opposite choice, wanted to get to know her real-life counterpart. Cuba Gooding didn’t talk to O.J.
Talking to me, for the actors, served as a kind of interim step to talking to their real-life counterparts. And they found it useful. That was fun.
Wesline Manuelpillai ’16 contributed reporting to this piece.