A letter is a worthwhile communication tool only if the recipient understands, and is receptive to, its content. Knowing this, the conscientious lawyer tailors the letter to meet the characteristics of the person to whom the letter is directed.
—Gretchen Viney, “101: Writing a Professional Letter,” Wisconsin Lawyer magazine, June 2013
Don’t use value judgments designed to make readers feel bad about past mistakes. Instead, try to motivate your reader to improve behavior in the future.
—Gary Blake, “A Few Tips on Writing to Opposing Attorneys,” International Risk Management Institute, Jan. 2004
The writing is clear while at the same time being legally precise.… It’s also perhaps the first time in legal history in which “libel per se” and “piece of ass” were used in the same document.
—Brian Carroll, Writing and Editing for Digital Media (2017)
TWO YEARS LATER, after Sean Spicer and alternative facts, after the endless insults about the “enemy of the American people” and fake news, after James Comey and Anonymous and Stormy Daniels and Bob Mueller, after the flood of White House leaks, after Harvey Weinstein and #MeToo, I sometimes thought back to October 2016 with something akin to nostalgia. For all the intensity and zaniness and viciousness of the 2016 presidential campaign, there was a certain simplicity to those days; at least that is how it seemed in retrospect. It was a crazy time, yes, but the craziness seemed more sheet cake than layer cake.
Do we need to respond? my boss wanted to know, as we looked over a letter from Candidate Trump’s attorneys one October morning. The letter was about a story we had just run in which two women said Trump had groped them years earlier. It was a huff-and-puff, blow-your-house-down sort of lawyer letter. It had nothing of substance to say. It didn’t offer any proof. Donald Trump was not likely to sue The New York Times for printing the story. Hadn’t he just been all over TV and the internet bragging about grabbing women by the pussy? What was the point of spending time writing a letter that would either be ignored or just fuel some infuriatingly pointless back-and-forth with Team Trump?
I don’t know, I said. There had been so much attention already to the letter. Our PR people were being hounded about what we had to say and whether we intended to respond. Our readers don’t understand how these things work. They don’t understand that these fire-breathing letters come in all the time and then the lawyers are never heard from again. Won’t a non-response be read as a sign we’re worried or intimidated or have doubts about our own story, and maybe all three? And wasn’t it just a little outrageous that Donald Trump was blaming us for his crappy reputation for treating women badly? Maybe I should try to bang out something later that morning and then we could decide. We were already late for a meeting.
The night before, Twitter had been ablaze (as it often is when nothing real is actually happening). Trump’s lawyers had written us a letter even before we published the story saying we would be sued if we went ahead with publication. We printed the story. It detailed the women’s accounts of two separate incidents. Immediately, Trump campaign aides were telling anyone who would listen that there was going to be a lawsuit. “Assume you will tell us if we receive anything tonight,” Eileen Murphy, the head of Corporate Communications, wrote to me at 10:30 that night. “It’s a hot topic and the Trump people are saying they’re preparing a lawsuit for delivery tonight.” That struck me as a particularly unlikely event. A real summons and complaint, which are needed to start any lawsuit, had to be filed in court before the papers could be served on us, and as far as I knew, about the only court open late for business was the night arraignment part in the Bronx Criminal Court. The judges there see some wickedly crazy stuff, night in and night out, but, as far as I knew, they didn’t handle a lot of after-hours libel suits from presidential candidates.
An hour later, as midnight approached, a lawyer at one of the country’s biggest law firms wrote me: “If Trump really does sue, you have got to give me a shot.” “I hear you,” I wrote back, “but I might have to go with someone with a bigger groping law practice.” I went to bed.
I woke up to an email from Dean Baquet. There was no message, just the subject line “After Midnight.” (I would later get some seriously indignant mail from Times readers/music purists when I referred to “After Midnight” as an Eric Clapton song in an article I wrote. Everybody knows it’s a J. J. Cale song. Clapton stole it and ruined it. Only a hopeless corporate puke would think it was a Clapton song.) Attached to Dean’s email was the late-night letter from Trump’s lawyers demanding a retraction:
We represent Donald J. Trump. We write in response to the libelous article published October 12, 2015 by The New York Times entitled Two Women Say Donald Trump Touched Them Inappropriately.
Your article is reckless, defamatory and constitutes libel per se. It is apparent from, among other things, the timing of the article, that it is nothing more than a politically motivated effort to defeat Mr. Trump’s candidacy. That is why you apparently performed an entirely inadequate investigation to test the veracity of these false and malicious allegations, including why these two individuals waited, in one case, 11 years, and, in another case, more than three decades, before deciding to come forward with these false and defamatory statements. Clearly, The New York Times is willing to provide a platform to anyone wishing to smear Mr. Trump’s name and reputation prior to the election irrespective of whether the alleged statements have any basis in fact.
We hereby demand that you immediately cease any further publication of this article, remove it from your website and issue a full and immediate retraction and apology. Failure to do so will leave my client with no option but to pursue all available actions and remedies.
It was not yet 6:00 in the morning when I read the letter, and I immediately did what lawyers do when someone puts a client on notice of a possible suit. I typed out an email to everyone who had been involved in the story. We needed to make sure no one in the company was saying anything off message that might complicate the company’s legal position later if a lawsuit did actually come. I suggested we needed to have only one person speak for the company. It made sense to have that be Eileen Murphy in Corporate Communications. Could we agree on that? I hit send.
I heard straight away from reporter Michael Barbaro: “We are headed to do CBS This Morning,” he wrote. Then his reporting partner Megan Twohey weighed in: “I just did NPR. We’re scheduled to do CBS morning news at 730.”
The sound I heard was the litigation playbook being chucked out the window.
I did think there was some chance that Trump might sue. Not right away, of course, but after his inevitable upcoming loss in the election. What was the incentive for him not to sue then? He had the money to come after The Times, and he would no doubt blame us for his defeat. He had chased author Tim O’Brien around for years with his unwinnable libel lawsuit over nothing more than how much he was worth. Why wouldn’t he do the same thing this time? He had no realistic chance of winning a suit that I could see, and I trusted our journalists’ reporting, but lawyers are paid to prepare for the worst. I didn’t know how the two women would stand up as witnesses if they were suddenly dragged into a libel suit. Why had they been silent for so many years? Why were they coming forward now? Let’s guess who had their votes in the election.
Eileen wanted to know whether we should head off further interviews. She was worried that pulling out of the TV news spots would send the wrong message. She was right. There was no turning back. This was going to be a public brawl. Al DeVivo, head of our security desk, sent out an email letting everyone know that the news trucks were already lined up outside the building. And because the day was not shaping up to be strange enough, a news alert blinked across my computer screen: Bob Dylan had just won the Nobel Prize for Literature.
When my meeting wrapped up, I headed down the hall to write a response to Trump’s attorneys. I only had 45 minutes. Later, I was always amused that the number of people who said “That letter must have written itself” was more or less equal to the number of people who said “You must have had somebody write it for you.” Great to learn that the people who knew me best thought the letter was either ridiculously easy or way, way beyond my abilities.
I typed away, took a conference call, and then, shortly before noon, got a group of colleagues together to do a joint read of the draft—our general counsel, Ken Richieri, his deputy, Diane Brayton, and our new First Amendment fellow, Ian MacDougall. By then, everyone was onboard with doing a strong response, but I wasn’t sure I had it right. We went around for about 30 minutes, talking about whether the overall point and tone were right, whether words should be tweaked, whether the ending was too much. I went online to double-check the facts. We tried to gauge the likely public reaction. I made some minor edits. There was some uneasiness in the room about the second paragraph:
The essence of a libel claim, of course, is that a statement lowers the good reputation of another in the eyes of his community. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on naked beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss his own daughter as a “piece of ass.” Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.
It made sense legally—a person whose reputation is already in the dumper cannot claim that a story harmed his reputation further—but even as lawyer letters go, the paragraph was more sledgehammer than surgical knife. It also contained the somewhat less than lawyerly and decidedly non-Timesian phrase “piece of ass.” And then there was that ending:
It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published important information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.
Welcome the opportunity? Really? Maybe something more like “we are prepared to vigorously defend any claim,” I suggested, lapsing back into full-lawyer mode. I typed out some possible new endings so we could all look at the words. We tried something more on the theme of “such a case would be unsuccessful.” I typed some more. Nothing quite carried the message as well as the original. We decided to go with it.
Like lots of lawyers, I write dozens of lawyer letters every year. They tend to have an audience of one. An attorney writes to the paper unhappy with something we have done. I write back. More often than not, nothing more is ever heard. We take no offense. We’re lawyers, not novelists.
And I had learned early on in my career at The Times that there is almost a direct correlation between the speciousness of the complaint and the level of audacious self-righteousness contained in the letters I receive. Lawyers who write to complain about The Times’s coverage can’t seem to help themselves. Words like “malicious,” “deliberate falsehood,” “impugn,” “utterly lacking,” and “reckless disregard” must be hot-keyed on their laptops. Never mind the client’s recent indictment. Never mind the videotape, the recordings, the documentary evidence, the 27 sources, the federal investigation, or the damning admissions. Never mind the First Amendment. I once got an impassioned letter from a lawyer complaining about how one of our local newspapers had covered the arrest of his client. Outrage poured forth, interspersed with protestations of his client’s innocence. What was odd—or perhaps telling—was that the lawyer never once mentioned exactly what his client had been arrested for. I tracked the article down. It was a routine police story based on the police logs. The client had been accused of masturbating while his car was stopped at a red light next to a vehicle driven by a woman. When the police caught up with him, he assured them that it was all a tragic mistake. Nothing like that had happened. He was, he told the cops, just checking for tick bites.
I also knew a little about how letter-to-letter combat plays out in public. Earlier in 2016, The Times found itself in a very public standoff with the National Football League. We had run a story tracing how the NFL’s response to research on concussions resembled the tobacco industry’s response to research linking smoking to cancer, and we reported on some of the connections between the tobacco industry and the NFL. The league posted a long lawyer letter saying it intended to sue us unless we retracted the story and took it down from the internet. I responded with a letter of my own, pushing back on the league for—as I saw it—trying to silence critics and keep fans in the dark. Sports being sports and lawyers being lawyers, the internet loved the exchange. It was the first time I ever found my work being handicapped by both legal blogs and sports columnists. I had been struck by the letters from the NFL’s lawyers, in particular a reference to how “odious” the tobacco industry was. For The Times to associate the NFL with such corporate pariahs was outrageous, the lawyers said. No decent business would want to be associated with the likes of Big Tobacco. Only then I remembered that a few years earlier the same law firm had represented one of the big tobacco companies in the famous lawsuit brought by the Department of Justice over the tobacco industry’s misrepresentations of smoking’s health risks. Yes, the firm disputing our reporting that links existed between tobacco and football represented tobacco and football. I couldn’t let it pass. After pages of legal argument, I moved to the conclusion: “While your earlier letter to The Times called the tobacco industry ‘perhaps the most odious industry in American history,’ you somehow fail to mention in either letter that it was your firm that represented Philip Morris in that RICO case.”
I knew the Trump letter would go public, too. The Trump campaign had distributed the threat letter on the internet overnight. The morning news shows were leading with it. Still, when all the political hyperventilating ceased, my letter was just a lawyer letter. “Stand by your Twitter accounts. We are about to go live,” I wrote to my colleagues in the Legal Department. I intended it to be a joke. In the first 90 minutes, I had 90 emails from readers. Then the pace picked up.
Hundreds of emails poured in. They came from Tanzania, the Northern Mariana Islands, England, Sri Lanka, Australia, and all over the U.S. Someone asked to translate the letter into Spanish. Most of the emails were from strangers, many from lawyers, but also from a nurse and a doctor, retired people, the founder of a nonprofit, law school students, parents whose kids had seen the letter online at college, journalists from other news organizations. I heard from students I had taught 30 years ago when I was a college professor, former colleagues, law school classmates I hadn’t seen in two decades, my brother’s high school girlfriend, a person who says we met at a wedding 10 years ago, my ex-wife.
One person took issue with my comma usage. Somebody suggested I be disbarred. I was made aware of a raging online debate set off by the letter over whether there should be two spaces or one after a period. (It ended when a young woman asked people to knock off the carping about the double spaces in my letter because, well, that was just how old people write.)
By Friday night, more than a million people would come to The Times website to read the letter. Hundreds of thousands of others were reading it on other sites. On Saturday, two days after the letter went public, it still topped the “most emailed” and “most viewed” list on nytimes.com. A reporter was in a downtown bar that weekend and heard a table of twentysomethings quoting the letter from memory as they drank beers. Two women proposed to me online.
Someone asked what it was like to be the guy who “broke the internet.” I was pretty sure I was not yet in Kardashian territory. Plus there was this: My day job didn’t care how I was doing on Twitter. A photo editor wanted me to help a freelancer who was running into problems getting access to a college campus. Our bureau in Hong Kong was doing a sensitive story about the Thai royal family, and we were once again dealing with Thailand’s oppressive lèse-majesté laws, which bar any criticism of the monarchs. A lawyer got in touch with me to try to resolve (once again) a never-ending contract dispute over delivery routes in the city of Boston. I spent a big chunk of the day deep in the misery of producing documents and data for a class-action suit we were facing over our marketing materials in the state of California. Meanwhile, the emails about the letter kept pouring in. At night, I would sit up late and reply to them, dozens and dozens every night. People had taken the time to write. I thought they deserved a response. Totally Midwestern. I still correspond with a 90-year-old woman named Rusty who wrote to me then and, every couple of weeks, lets me know what the world looks like from the vantage point of Colorado and all those years.
A year before the #MeToo movement would rise up, the notes from women who had experienced harassment in their own lives were moving. “I felt you were also speaking … for all of the women that have been bullied after reporting sexual harassment/assault/abuse. For that I sincerely thank you,” one wrote. Another said, “I don’t know one woman who has not experienced some level of this sort of aggressive, entitled behavior over the course of her life. Yet so many of us just try to bury it and move on, while arguing within ourselves whether we weren’t partially to blame. Perhaps this new discussion will help bring about meaningful change. Thank you for helping bring this into sharp relief.” Someone else tried to capture the discouraging reality of what women went through on the job. “I know more women than I can count on both my hands and feet who have had similar experiences to my own. The number of said women who had the courage to push against these more powerful men can be, sadly, counted on one hand alone.… I thank the New York Times for standing strong.”
Other people simply wanted to express their appreciation. A guy wrote to say that it made him proud to have gone to the same high school as I did—unless I was some other David McCraw. “Even if you are not an MHS grad—I still admire what you did.” “Sending you the highest of fives,” wrote another reader, although she predicted my spam filter would end up snagging her email. A couple in California said they had opened a bottle of wine and toasted the letter. A New Yorker said he wanted to be the “289,000th human being to say thank you.” The best email was the one that ended: “As my sister put it, ‘I’ve never wanted to hang a paragraph from a lawyer on my fridge before.’”
Then there was the note from the lawyer in California. He said he had spent his entire career working for a movie studio, which meant that he had spent a lifetime writing polite responses to all the jerks in his industry. You must be lucky, he said, to work at a company where they let you respond by saying what you really think and believe.
His email hinted at what many people wanted to know. Did the senior management of The New York Times really let me write a letter like that? That would be a letter that not only said “please sue us” but also contained that choice phrase “piece of ass.” In those days I had a glass office, and about 10 minutes after the letter went up I found out one of the not-so-great things about having a glass office. One of the not-so-great things is that you can see when the CEO of your company is walking toward your office with a certain look on his face and certain letter in one hand. In that instance, you begin to wonder whether it was such a super-great idea to send a “bring it on” letter to the next president of the United States without first checking with senior management. Our CEO, Mark Thompson, is an Englishman. He walked right in and he was direct. He held the letter up in front of me. “Brilliant letter,” he said, “but there’s one thing I’ll never understand. Why do you Americans insist on capitalizing after a colon?”
That could have turned out much worse.
In the months after the letter went viral, I became one of the faces of the press freedom movement, speaking on campuses about the Trump presidency and the war the president was waging against independent media. Inevitably, people wanted to know whether The Times ever got a response. I had heard from thousands of people about my letter. The one person I didn’t hear from was the actual recipient of the letter, Trump’s lawyer. In time I stopped looking for a response. The election was over. Trump had won. The threat of any suit faded into an afterthought.
Then one night in February 2017, as I sat eating dinner at another endless meeting in a law firm conference room, an email showed up in my inbox. Checking my phone under the table, I recognized the sender immediately. It was the lawyer. There was nothing on the subject line. Just his name and a blank space. I hesitated for a moment, then I clicked.
At the bottom of the email was a brief news item about a commencement speech I had been invited to give at a law school. Above that was a simple message: “I think it’s about time that you began cutting me in on your honorariums, don’t you think? Congratulations. Hope you are well.”
I couldn’t resist. “I completely agree,” I wrote back. “But being the enemy of the people doesn’t pay the way it used to. I think I am up to $900 total.” Two lawyers treating each other as professional colleagues? As human beings? Normal stuff. Maybe there was hope for America after all.
The responses that mattered most to me, though, were the ones that came from journalists. Inside The Times newsroom, the reaction had been bracing. Reporters circulated the report that I got a standing ovation as I walked into the room on the day after the letter was sent, and pretty soon that anecdote was in media accounts. As sometimes is the case in journalism, the truth was a little more complicated. I did get an ovation. And some of the journalists were standing around when I came into the room. I leave it to others to decide whether that constitutes a standing ovation.
But elsewhere journalists had reservations about what I had done, especially the paragraph about Trump’s reputation for inappropriate behavior toward women. In the fall of 2017, during an interview at an NPR station in St. Paul, Minnesota, the host drilled down on that paragraph, wanting to know why I had included it. The questioning was sharp and smart. I explained that my letter was a lawyer letter, that I was setting out the legal argument we would make in court. That is how these letters go. You let the other side know what your case is going to look like if they are foolish enough to run into court. It was, I tried to say, just garden-variety lawyering: laying out the law and applying it to the facts. I didn’t sound all that convincing—face it: the paragraph was a take-no-prisoners volley—and I wasn’t looking forward to the NPR host’s follow-up. Then, suddenly, behind me someone in the control room signaled that President Trump was going live with an address to the nation. The station was cutting away from my interview to cover it. I turned and saw on a hanging TV monitor Trump heading for a lectern at the White House. I had never been so happy to see the guy. The interview was over.
Even at the time the letter came out, there were dissenting voices. Mark Halperin, then a highly regarded political correspondent at Bloomberg, said the letter had veered into partisanship. “To put that letter in public making those accusations.… If my news organization did that, I would be uncomfortable,” he said. He saw the letter as an “ad hominem” attack and said The Times “should do their speaking in the paper” and “do their arguing in court if necessary.”
Some of what Halperin had to say didn’t track. Was The Times supposed to not respond to a demand for a retraction from lawyers that the Trump campaign had released publicly? If we did respond, were we then supposed to hide the fact that we had done so? Erik Wemple in The Washington Post came to The Times’s defense: “A word to Halperin: If Trump wants to make noise about legal action, the New York Times may deploy its lawyers to provide a response. Releasing it to the public is merely an act of transparency that merits the support of journalists, not a silly and faux-ethical condemnation.”
Still, I could understand the discomfort of some journalists. My role is to defend The Times’s work and, more often than not, to advocate for a single position: that we got the story right, we were within our legal rights to do it, and the person threatening us or suing is wrong. It is impossible in that situation not to be adversarial, even if our reporters can’t be and shouldn’t be. But I knew, for the paper’s own good, there was a line somewhere out there not to be crossed. I tried to be careful to build my case from facts we had reported and to have my judgments be legal opinions, not political ones. In an article in The Times after the letter, I expressed my own uneasiness with people who wanted to embrace the letter as one part of some anti-Trump offensive. That was not how I saw it. My role was to take on anyone who was trying to silence the truth or wrap the government in secrecy. When people attempted to bully us or when officials were trying to conceal what the public deserved to know, it didn’t matter to me what their political views were. I fought with New York’s arrogant Democratic leaders, I sued the Obama administration more than 30 times for withholding information, and I took on the Republicans whenever they were trying to make America a less transparent nation. My job didn’t change with the administrations. My job was to do whatever I could to make sure our reporters had a chance to pursue the truth and tell it the best they could.
I was glad that Clarence Jones was there to remind me of that in October 2016.
Clarence was in his mid-80s. In the early 1960s he was Martin Luther King’s personal lawyer. Times v. Sullivan had arisen from an ad placed in The Times by Dr. King’s supporters detailing the violence and abuse that civil rights protesters had endured in Montgomery, Alabama. Sullivan was a local police official in Alabama, and all across the South power brokers were using libel suits to intimidate news organizations like The Times that were trying to tell the world about the civil rights movement.
Clarence Jones wrote to me in October 2016 to remind me that when The Times and the Sulzberger family had stood up for the newspaper in the Sullivan case, they were also standing up for the civil rights leaders who had published the ad. “All of my then 31-year-old self advised Dr. King and The Times that Sullivan’s suit was an effort to silence the Times and decapitate the leadership of the Southern Civil Rights Movement,” he said. “We and the Times had no choice but to fight it. We were fighting for our survival.”
Clarence Jones was right then, and he is right now. Fifty-five years after Sullivan, there is still no choice to be made but to fight.