Behind the scenes at Justice Alito’s unprecedented Wall Street Journal Pre-Buttal

This story was originally published by ProPublica.

Around noon on Friday, June 16, ProPublica reporters Justin Elliott and Josh Kaplan emailed Supreme Court spokeswoman Patricia McCabe with questions for Justice Samuel Alito about an upcoming story about his fishing trip to Alaska a hedge fund billionaire.

The deadline for a response is the following Tuesday at 12:00 p.m.

Fifteen minutes later, McCabe called the reporters. It was an unusual moment in our dealings with the Supreme Court Press Office, the first time in our many months dealing with the ethics and behavior of judges that one of their information officers spoke directly to ProPublica journalists . When we sent the court detailed questions about our stories about Judge Clarence Thomas, McCabe responded with an email saying they had been forwarded to the judiciary. Before these stories appeared, there was no further word from her, not even a statement that Thomas would not comment.

The conversation about Alito was lively and professional. McCabe said she noticed a formatting issue with an email, and the reporters agreed to resend the 18 questions in a Word document. Kaplan and Elliott told McCabe that they understood this was a busy time at court and that they were willing to extend the deadline if Alito needed more time.

Monday was a federal holiday, June 19th. On Tuesday, McCabe called reporters to tell them Alito would not respond to our requests for comment, but said not to write that he declined to comment. (In the story, we wrote that she told us he “wouldn’t comment.”)

She asked when the story was expected to be published. Certainly not today, the reporters replied. Maybe on Wednesday.

Six hours later, the Wall Street Journal editorial page published an essay by Alito in which he used our questions to guess the points of our unpublished story and disprove them in advance. His post, titled “Justice Samuel Alito: ProPublica Misleads Readers,” was difficult for anyone outside of ProPublica to understand, as he dismissed allegations (particularly the alleged consumption of expensive wine) that had not yet been made.

In the hours following Alito’s response, editors and reporters worked quickly to complete our investigative story. We created additional reports to put Alito’s claims into context. The judge wrote in the Journal: “I remember only having spoken to Mr. Singer a couple of times” and that none of those conversations concerned “any case or matter before the court”. He said he was unaware of Singer’s involvement in a case over a longstanding dispute with Argentina because the fund involved in the lawsuit was called NML Capital and the billionaire’s name did not appear in Supreme Court briefs.

Alex Mierjeski, another reporter on the team, quickly compiled a long list of prominent stories from The Journal, The New York Times, and The Financial Times identifying Singer as the head of the hedge fund made sizable by a lawsuit against Argentina in the United States Courts wanted to make a profit. (The Supreme Court backed Singer’s arguments on a key legal issue, with Alito joining the 7-1 majority, and Argentina eventually paid the hedge fund $2.4 billion to settle the dispute.)

It appears that the Journal’s editors have not made much effort to fact-check Alito’s claims.

If Alito had sent us his answer, we would have asked a few more questions. For example, Alito wrote that Supreme Court justices “commonly interpreted” the gift disclosure requirement as not applying to “accommodation and transportation for social events.” We asked if he was saying that it was common practice for judges to accept free vacations and private jet flights without disclosing them.

We would have also asked Alito more about his interpretation of the Watergate-era disclosure law, which requires judges and many other federal officials to publicly display most gifts. The law provides a narrow “personal entertainment” exemption that allows federal officials to avoid disclosing “food, lodging, or entertainment” that a host provides on their own property. Seven ethics law experts, including former government ethics attorneys from both Republican and Democratic governments, have told ProPublica that the exception doesn’t apply to private jet flights — and never has. Such flights are clearly not a form of food, accommodation or entertainment. Having already combed through the court disclosures, we knew that several federal judges had disclosed donations of private jet flights.

We may also have sent Alito some of the contemporary stories about Singer’s falling out with Argentina that were readily available online. Given Alito’s previous ties to the journal’s editorial page — he gave her an exclusive interview earlier this year in which he complained about the negative coverage of the court — it’s likely that the stories we sent him inspired the site’s article from the 2013 titled Deadbeats Down South, which approvingly pointed out that “a subsidiary of Paul Singer’s Elliott Management” was waiting for a better deal from Argentina. We would have asked how his office checks for conflicts and if he’s concerned it hasn’t caught Singer’s widespread connection to the case.

The journal’s editorial page is completely separate from the newsroom. Nonetheless, journalists sharply criticized the decision to help the subject of another news organization “pre-announce” the findings.

“This is a terrible look for @WSJ” tweeted John Carreyrou, a former investigative reporter for The Journal whose award-winning articles on Theranos led to the indictment and criminal conviction of its founder, Elizabeth Holmes. “Let’s see how it feels when another news organization comments on a sensitive story they’re working on with preemptive comment on the subject of the story.”

Bill Grueskin, a former executive editor of the journal and a professor of journalism at Columbia, told the Times, “Judge Alito could have released this as a statement on the SCOTUS website. But the fact that he chose The Journal — and that the editorial page was willing to serve as his trusty factotum — says a lot about the relationship between the two parties.”

Even Fox News got involved. “Alito will certainly congratulate himself on his pre-emptive strike, but was that really fair considering the nonprofit news agency sent him questions last week? And should the journal, which criticized ProPublica as a left-wing organization, have gone along with it? The newspaper included an editor’s note that ProPublica had sent the questions to the judiciary, but did not mention that their story had not yet been published,” wrote Howard Kurtz, cable news channel media monitor.

Lessons can be learned for ProPublica from this experience. Our reporters are probably a bit more skeptical when a speaker asks when a story will be released.

But one thing doesn’t change. Regardless of the consequences, we will continue to give everyone featured in our stories the opportunity to respond to what we intend to say about them prior to publication.

Our practice, which is known internally as “no surprises,” emphasizes both accuracy and fairness. As editors, we’ve seen numerous instances over the years where the answers to our detailed questions have changed the story. Some have been substantially rewritten and rethought in light of new information providing the stories’ themes. On rare occasions, we have ended stories after learning new facts.

We’ll leave it to the PR pros to judge if pre-buttals are an effective strategy. Alito’s claim that the private flight to Alaska was worthless because the seat was already empty caused quite a stir on the internet.

And our story’s readership is solid: 2 million page views and counting. It’s possible Alito won the argument with the audience he cares about most. But it seems just as plausible that he drew even more attention to the very story he wanted to undo.

Alito’s behavior underscores that the “no surprises” approach means taking a risk and allowing subjects to “spit us in the soup,” as Paul Steiger, the journal’s former editor and founder of ProPublica, liked to say.

However, following our practice, we reached out to the journal’s editorial board, Alito and McCabe, for comment before this column appeared. We didn’t get an immediate response from them.

Watch the video of Editor-in-Chief Jesse Eisinger and reporter Justin Elliott discussing the investigation.

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