Covering the DC Appeals Panel Immunity Decision

A look at three papers

I’m a nerd. I freely admit it. In addition to be an unrepentant political junkie, I read major court cases.

I started this seriously in the post-election period in 2020 and have kept it up through the various briefs and rulings since then. So when I got the alerts that the DC Court of Appeals had released their ruling on the former president’s broad claims of presidential immunity, I went to find the actual decision before looking at any reporting about the ruling.

Admittedly, I don’t read EVERY word of a decision like this. It’s pretty easy to skip the jurisdictional passages. It’s not necessary to read all of the parentheticals about prior precedents. They explain why they’re important in the text. It is still clear that this is a remarkable decision. It is clear, well-reasoned, and draws on history and constitutional wording to support the argument. In a fair world, it’s the kind of decision that the so-called originalists on the Supreme Court would love.

The DC Appeals panel has given the former president until Monday to request a stay from SCOTUS while his team prepares a request for certiorari. In the absence of that, on Tuesday the case returns to the district court. The grant of a stay requires five votes (cert requires four). I’m of the opinion that SCOTUS will grant the stay but deny cert.

But this post isn’t about the DC Appeals Court. It’s about how the story gets covered in the press.

---

Journalism is literally in my blood. My parents met while on the staff of the Butler Collegian. My dad had a career as a reporter/photographer before going back to college earning degrees in political science and criminal justice. My mom finished her BA and MA and became a high school journalism teacher for much of my elementary and high school years.

It’s not surprising, then, that my morning routine involves reading highlights from two papers (The Washington Post and The Denver Post), several newsletters, and updates on Threads (I’ve tried to leave X behind). I regularly observe comments from media critics like Jay Rosen, Dan Froomkin, James Fallows, Eric Wemple, and Brian Stelter.

So I want to do my own media criticism by exploring how three news sources — the Associated Press (aggregated in the Denver Post), The Washington Post, and The New York Times — covered the DC Appeals Court decision.

frontpages.com

One of my pet peeves is stories that provide a shallow treatment of the issue in question surrounded by a lot of prior history, comments from supporters and critics, and prognostication about what it will all mean (especially for the election). The result of such stories is that the reader is left feeling like they have a vague sense of what is happening surrounded by “more of the same” as every other story. This is especially true when everything reverts to horse-race coverage — will this help Biden or hurt Trump and do voters care?

The AP story illustrates my complaint. The piece is twenty paragraphs long. Only five of those paragraphs are about the appeals court decision, running from paragraph five to paragraph nine. The opening paragraphs review the context of the DC trial. Paragraph ten has the expected reaction from a Trump spokeman and a Truth from Trump. Paragraphs eleven to fourteen examine options SCOTUS has without conclusion. The remaining six paragraphs provide a history of the DC case and summarize arguments made at the oral arguments a month ago.

The Washington Post treatment begins with the decision right from the top. The first three paragraphs (out of twenty-two total) summarize key quotes from the decision. The next three paragraphs are history of how we got here. This is followed by a paragraph on the importance of “per currium” (meaning all the judges) and another with a reaction from a legal scholar who favors the decision. The next four paragraphs deal with prior Justice department rulings and Trump’s prior claims. The next paragraph provides important factors in the decision, citing Nixon and Clinton as examples. This is followed by three paragraphs on last month’s oral arguments and one paragraph on how those arguments were rejected in the decision. The last two paragraphs return to process questions.

The New York Times story also starts out with paragraphs summarizing the ruling (seven paragraphs out of twenty). This is followed by two paragraphs of responses from Trump spokesman and Jack Smith. Next are four paragraphs of history of the case. The story returns to the DC Appeals court in the next three paragraphs. After returning claims in the oral arguments, which the judges rejected, the last nine paragraphs are about the Supreme Court as the case potentially goes forward.

I realize that reporters have to write under the gun. They have so many column inches to achieve and want to provide context for what has happened. It’s easy for some retired guy to sit back and analyze their decisions after the fact.

Still, I’m reminded of Jay Rosen’s mantra: “Not the odds, but the stakes.” Readers of the mainstream press or viewers of cable news need to understand how the DC Appeals panel reached their decision and why those precedents are so important to our ongoing democracy.

I know that lots of voters don’t follow the news closely. Those that do might stay in their balkanized bubble and hear interpretations favorable to them. This doesn’t even consider all those who get their news from YouTube and TicToc.

But maybe, just maybe, if the news did a more in-depth job of covering a decision like the one handed down yesterday — leaving out the past, the opinions, and the prognostications — people would find the news more worthwhile.