Bench Memos

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Response to NYT’s Public Editor on Greenhouse Conflict—Part 2


In his column, public editor Clark Hoyt presents, with very little commentary and only the softest of indirect criticism, the peculiar views of Greenhouse and her editors on her conflict of interest. 

Let’s begin with Greenhouse.  Greenhouse finds it significant that “her husband does not represent any prisoners.”  “There is to my mind,” she says, “a significant difference between representing a party in a case and taking a position on an issue raised by a case.”

As I understand it, Greenhouse is drawing a bright line between cases in which her husband is counsel for a party and cases in which he takes part as counsel for an amicus (or in which his nonprofit alter ego, the National Institute of Military Justice, is an amicus).  It would be good if she said so plainly, for her reference to “taking a position on an issue raised by a case” dramatically understates the breadth of the amicus briefs that her husband and NIMJ filed in Hamdan and Boumediene.

Perhaps there is a serious argument for the line that Greenhouse is drawing, but I don’t see it—and she doesn’t try to spell it out.  One can readily understand that an actual party has a greater and more concrete interest in a case than an amicus.  (That wouldn’t mean, though, that the amicus itself doesn’t have an interest sufficient to trigger conflicts).  But no such difference would seem to exist between the interests of counsel for the actual party and the interests of counsel for the amicus.  Whether the interests are financial, reputational, or ideological, it’s far from clear that there’s generally any meaningful difference among the interests of counsel.  In any event, Greenhouse can’t explain how her husband isn’t meaningfully involved, for purposes of conflict rules, in the cases in which he takes part, and Hoyt in the end soundly rejects her position—“Greenhouse is writing about something in which her husband is a player”—even if he does so in a way that might escape the notice of some readers.

Now for the editors.  Dean Baquet calls the conflict “abstract” and the role of Greenhouse’s husband in the cases minor.  But the actual conflict, far from being abstract, is a concrete and particularized instance, and (again, as Hoyt in the end determines) her husband’s role plainly suffices to create a conflict.   

Jill Abramson says that Greenhouse’s “professionalism over the years is unquestioned here” and that she “can wall off the views of her close friends and her spouse.”  But even if one sets aside that Greenhouse’s professionalism is seriously questioned outside the narrow confines of the Times’s news room, it’s odd to exempt Greenhouse from the conflict-of-interest principles that the Times so readily applies to others whose professionalism isn’t questioned.  The fact that Abramson conflates the significant difference between Greenhouse’s “close friends” and “her spouse” hardly lends credence to her judgment. 

Finally, executive editor Bill Keller objects even to Hoyt’s proposed website disclosure because (in Hoyt’s paraphrase) “it would appear to be a tacit rebuke in the face of a [supposed] partisan assault.”  It’s difficult to imagine that the Times would accept that as an excuse for anyone else not to do the right thing. 

Tags: Whelan


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