Topic category:  Government/Politics

"Higher up" at The New York Times told Times national correspondent to "stand down" rather than go to Washington, D.C. and pick up documents from ACORN whistleblower Anita MonCrief, her confidential source for more than three months, and then earn a Pulitzer Prize by writing an expose on the true relationships between ACORN and Obama and ACORN and the Obama presidential campaign.

But apparently no one told New York Times Public Editor Clark Hoyt that his defense of the killing of an ACORN/Obama expose, titled "The Tip That Didn't Pan Out," was ineffectual and he should have stopped digging the New York Times hole deeper instead of responding to Bill O'Reilly.

Hoyt's presumptuous response, titled "A Last Word on The Acorn Matter," is NOT the "last word."

Such a claim is utterly absurd, since Michelle Malkin is focused on the matter and Bill O'Reilly is "at war" with The New York Times.

Hoyt: "Bill O’Reilly, on his Fox News program 'The O’Reilly Factor,' accused me of a 'blatant lie' in my May 17 column about allegations that The Times killed an investigative story that could have been a 'game-changer' in the presidential election.'

That's true. O'Reilly accused, and he rightfully did so.

Hoyt: "Richard Toh of Easton, Pa., said he was 'glad there is someone like O’Reilly who is willing to challenge the misinformation by a major news organization.' On the other hand, Barry Feiner of Harrison, N.Y., asked if I intended to respond 'to the vicious and, I believe, completely unwarranted attack' by O’Reilly'."

That's probably true.

Hoyt: "In fact, O’Reilly has peddled false and distorted information as he has tried to twist what I believe was a normal and reasonable editorial decision by The Times into some kind of journalistic scandal. He edited a voicemail from a Times reporter to a confidential source to leave out crucial information that undercut his premise. And he falsely told his viewers that The Times’s source, a disaffected former employee of the left-leaning group Acorn, had made her charge against the paper under oath to Congress.'

That's partly true. O'Reilly begins his show by stating, "CAUTION, you are now entering THE No Spin Zone." Viewers expect him not to spin as well as to challenge spinning by his guests. O'Reilly was right on the main point--"journalistic scandal," but playing an edited version of that devastating voicemail without stating that it was edited and making the full transcript available on O'Reilly's website was foolish. First, it allowed Hoyt to deflect attention from the journalistic scandal by claiming deception. Second, as hereinafter explained, examination of the entire voicemail, the story to which reference was edited out and the basis for that story (the 14-page internal ACORN report on its legal vulnerability prepared by attorney Elizabeth Kingsley) reveals that The Times not only spiked a story that tied Obama to ACORN, but understated ACORN's legal problems.

Hoyt admitted in an email to Ms. MonCrief that he had a copy of the Kingsley report, but refused to provide a copy to her.

Hoyt to MonCrief: "Stephanie provided me with a paper copy of the Elizabeth Kingsley report. She asked that I not share it with you, and I have to respect that. It may have identifying marks on it that would indicate where she obtained it. She said she believes that you have a source for obtaining the report."

Hoyt should delete any identifying marks and publish/post the text of the report. But if he did that, readers who compared the story that was published with the report would realize it was far from the full story that could have been reported.

In fact, Ms. MonCrief accompanied Ms. Heidelbaugh when Ms. Heidelbaugh testified before Congress last March, but did not testify herself. However, she DID testify under oath in the Pennsylvania ACORN case last October, her testimony was under penalty of perjury and her testimony was submitted to Congress by Ms. Heidelbaugh.

Hoyt:

"Here is what happened:

"The accusation that The Times killed a story that would have shown improper coordination between Barack Obama’s campaign and Acorn first surfaced in mid-March in congressional testimony by Heather Heidelbaugh, a Republican lawyer from Pittsburgh. Heidelbaugh said that the former Acorn employee, Anita Moncrief, told her that she had supplied information for a series of articles about troubles inside Acorn but that the stories stopped when Moncrief told The Times that the Obama campaign had given Acorn its list of donors who had contributed the maximum legal amount to the candidate so that they could be solicited for get-out-the-vote efforts.

False! It first surfaced on the Internet on October 22, 2008, in my article titled "ACORN WHISTLEBLOWER ANITA MONCRIEF: OBAMA'S THIRD STRIKE?"

I reported:

"It had to be very hard for a 'progressive' who supported Obama to come forward.

"But before Anita emailed Michelle Malkin and me, she had been working with New York Times national correspondent Stephanie Strom, but what ended up published as Ms. Strom’s ACORN articles were so 'watered down' that Anita decided to turn elsewhere.

"Wisely so.

"Yesterday, Anita advised me, Ms. Strom apologetically canceled a meeting for today and explained that New York Times policy was not to publish what might be a game changing article this close to the election.

"I think that should be in a footnote to The Times’ “All the news that’s fit to print” motto."

Hoyt: "Quoting Moncrief, Heidelbaugh said that the reporter on the Acorn story, Stephanie Strom, explained, 'Her editors at The New York Times wanted her to kill the story because, and I quote, "it was a game-changer."'"

True.

Hoyt: "O’Reilly picked up the allegation two weeks later. During his April 1 broadcast, he said The Times had been investigating links between Acorn and the Obama campaign, then played this excerpt of a voicemail: 'Hi, Anita. It’s Stephanie. I have just been asked by my bosses to stand down. They want me to hold off on coming to Washington. Sorry, I take my orders from higher up – ah, sometimes. Anyway, um, I’m sorry about this and we’ll still be in touch. Take care. And let me know if there is anything I can do to help you. Take care. Bye-bye.'"

True.

Hoyt: "In the context of an accusation that The Times was killing the story, presumably because it would hurt Obama, this message fit perfectly. And O’Reilly said immediately after playing the tape, 'Now, if The Times killed that investigation, it’s a violation of every journalistic ethic and may have even influenced the election.'"

True.

Hoyt: "But O’Reilly had cut from Strom’s message her reason for canceling her trip to Washington to meet with Moncrief about the Obama campaign, Acorn and an Acorn affiliate called Project Vote. Right after 'stand down,' Strom had said, 'We’re running a story tonight for tomorrow that, ah, pretty well lays out the partisanship problems that Project Vote may have, ah, based on a report that I got. So, ah, they think that going to do – that’s going to be the story about the partisanship issue, and so they want me to hold off on coming to Washington.'"

True.

Hoyt: "Putting those words back in paints quite a different picture. David Tabacoff, senior executive producer for The O’Reilly Factor, told me in e-mail that the phone call 'was simply edited for time.' That would be like saving space by boiling Dick Cheney’s recent speech on national security to a single quote: 'President Obama makes wise decisions.' Cheney actually did say that, but tearing it from the rest of what he said would completely distort his meaning.'

"The Factor" oversimplified. Unfortunately. But the whole story actual is WORSE for The Times.

Further, it was NOT Ms. MonCrief's decision. She not only provided the entire voicemail to "The Factor," but also immediately checked when I asked her if there had been a redaction and provided the redacted words for me to post promptly.

Hoyt: "O’Reilly called me a liar because I did not mention what he said after he played the edited recording and suggested that The Times had violated 'every journalistic ethic.' He had added, 'To be fair, The Times did run a story before the election about Acorn’s partisan approach, but stopped there.' This, however, separated that story from Strom’s voicemail, did not mention it as the reason for canceling the Washington trip and made it seem as though it was some disconnected article that had run at some later date, not the very day after Strom’s call to Moncrief. That fails any test of fair reporting."

Both "The Factor" and Hoyt failed to fully report.

Hoyt: "To emphasize the credibility of Moncrief’s charge against The Times, O’Reilly told his viewers: 'Okay, now, that phone call was made by the New York Times reporter to a whistleblower. That’s Anita, okay? The whistleblower testified under oath before Conyers’ committee in Washington that The New York Times killed the story.' He added, 'If she lies, a crime, she goes to jail.'"

O'Reilly misstated where and when Ms. MonCrief testified under oath, but perjury is a crime in Pennsylvania too.

Hoyt: "But Moncrief did not testify before Congress. Heidelbaugh did. Tabacoff acknowledged that. 'Heidelbaugh represented the Pennsylvania GOP in litigation against Acorn, and Anita Moncrief testified under oath at those proceedings,' he said, adding that Heidelbaugh related Moncrief’s accusations at the congressional hearing.'

True.

Hoyt: "'This was something that perhaps should have been made clearer,' Tabacoff said. Clearer? If you say George W. Bush, not George Washington, was the first president of the United States, you aren’t being unclear. You are flat wrong. Much worse, while testifying in Pennsylvania, Moncrief never made any charge under oath that The Times killed a story."

"The Factor" got a detail wrong, but the essential story right. What matters is the truth. The entire voicemail confirms that The Times DID 'kill[] a story." Ms. MonCrief told the truth and agreed to take a polygraph. Is Ms. Strom agreeable to a polygraph test?

Hoyt: "The way Heidelbaugh constructed her testimony, someone who didn’t do some homework could have made the mistake of thinking that she was repeating charges against The Times that Moncrief made under oath. Shortly after saying, 'Ms. Moncrief agreed to testify under oath, subject to the penalty of perjury,' Heidelbaugh said Moncrief had told her how The Times killed the 'game-changer' story."

Really! Ms. Heidelbaugh is responsible for what she states, not misreadings.

Hoyt: "I became skeptical about Heidelbaugh because there appeared to be inaccuracies in her testimony about The Times – including her claim that all stories about Acorn stopped after Moncrief revealed to Strom that the Obama campaign had given Acorn its maxed-out donor list. They did not. Moncrief told Strom about the donor list on Sept. 7. The Times published four articles after that date looking into troubles at Acorn. (See below). So, I bought the transcript of Moncrief’s Pennsylvania testimony and saw that she had not accused The Times under oath."

More attempted deflection by a New York Times apologist! I have the transcript of Ms. Heidelbaugh's Congressional testimony. It is true that Ms. MonCrief told Ms. Strom about the donor list on September 7, 2008 and the four articles appeared after that date, but Ms. Heidelbaugh identified on page 2 of her statement all four of the articles to which Hoyt referred! Ms. Heidelbaugh further stated that Ms. Strom "never wrote another article about ACORN for the New York Times for the remainder of the period before Election Day, i.e. November 4, 2008." Ms. Heidelbaugh meant to refer to the period from October 22, 2008, not September 7, 2008, so credit Hoyt with catching a date misidentification. The important point is that none of those four stories mentioned that ACORN had obtained an Obama donor list, much less obtained it from the Obama campaign.

Hoyt: "Strom told me that Moncrief was a useful source for several of her Acorn articles and that after Moncrief told her about the Obama donor list, she asked for it, so she could pursue the story. The list Moncrief ultimately provided contained nearly 56,000 entries, but it bore no indication of its origin. It contained what appeared to be a Federal Election Commission number beside each name and dollar amount, but those numbers did not relate to anything in the F.E.C. database."

It was the COMPLETE Obama donor list for the second quarter of 2007, not the list filed with the FEC. And if it had been a McCain donor list that was part of improper coordination, do you doubt that The Times would have contacted donors to verify the list?

Hoyt: "Strom said she that she made repeated efforts to verify the list and where it came from. Moncrief finally agreed to go on the record, but she was a problematic source for a news article. She had been fired from Acorn after running up personal charges on an Acorn credit card."

Apparently Ms. Strom is not a competent list verifier. Ms. MonCrief's termination for credit card misuse is old news that does not discredit her documents or make her email exchanges with Ms. Strom and Hoyt suspect. It was acknowledged by Ms. MonCrief in the Pennsylvania case last October and by Ms. Heidelbaugh before Congress last March. Ms. Heidelbaugh testified: "One of the first things that Ms. MonCrief told me was that she had been fired from her job for using an ACORN credit card for personal expenses. When she worked at ACORN in DC, she lived in a low rent apartment with rats in Baltimore with a new baby and was only making $25,000 per year with ACORN. She charged moving expenses to the ACORN credit card, wrongly, and hoped to pay it back. The total amount owed is less than $2,000 but she was fired."

Hoyt: "The problem for Strom and The Times was that, after investing weeks of reporting effort, Moncrief’s allegations could not be independently verified. Despite denials all around, maybe there will turn out to be a story about the Obama campaign and Acorn, but it would involve fairly technical violations of campaign finance law that experts told me are difficult to prove. So far, although Moncrief has gone public with her information, nobody has produced a convincing report that corroborates it."

Ms. Strom might have verified if she had been allowed to come to DC as scheduled to obtain documents from Ms. MonCrief instead of being made to "stand down."

Follow Michelle Malkin's and Fox News's reporting in June.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.