with mr. johnson. >> where do you stand on the protection of the wolf, which is arguably eliminating much of the deer population in the northwest peninsula and impacting the economy? mr. johnson: i think we should allow science to dictate our wildlife policies. not politics, not emotion. science. moderator: general? gen. bergman: any wildlife population needs to be managed. our deer population is way down. we walk in the woods with kids and dogs and everything else. nature does what nature does, and we need to make sure that the state manages our populations that need to be managed.

moderator: nick, please direct your question to general bergman. >> the cost of energy is higher for some people in northern michigan, compared to customers in lower michigan. why is this, and what would you do to remedy the issue? gen. bergman: our cost of energy is varied because we have the federal government dictating what kinds of energy we can use, whether it be shut down the coal plants, which increases the cost, whether it would be hydroelectric plants, which change the cost. we have the federal government in our hair that has made life complicated. we need to make sure that affordable power across our grid is available to all our consumers, knowing some have a greater ability to pay than others. but it needs to be affordable and backed up with an all energy , all the time type of mentality, because we utilize what we have here in northern michigan. moderator: mr. johnson? mr. johnson: the upper peninsula pays the second highest rates in the country.

we are in this jam because our leaders have failed to think ahead. we are left -- especially in the u.p. we need to start taking ahead and create energy resources that are reliable and can provide affordable power, especially for seniors on a fixed income. governor snyder has been agreement -- has put an agreement in place to generate facilitiesgenerating in the western u.p. i am in support of that. but we also need to think about renewable energy. we can create renewable energy through the upper and lower peninsula and give us the reliability we need. moderator: kristen, please start with mr. johnson. >> several states are challenging the epa's so-called clean power plant rules.

they argue the epa overstepped its authority under the clean air act, when the agency issued rules to control commissions -- control emissions from coal-fired power plants. are you stand on this issue? -- where do you stand on this issue? mr. johnson: poking our energy grid up to coal is not a wise position. we will be faced with market rate fluctuations. we have natural gas in northern michigan. we need to build natural gas power facilities. in addition, we need to think about renewable energy. regardless of where you are out on the government overstepping its bounds, we need to get off of coal and towards natural gas and renewable energy. >> general, same question. gen. bergman: i would suggest that is much easier said than done, because there is a balance. there is a time. we do need to evaluate new technologies. we need to ensure our transmission lines and how we are looking forward to our generation in the future.

epa is in the middle of it, and all of a sudden, business cannot do what it needs to do, which is the r&d necessary to generate the power, the energy, and utilizing our water resources as best we can. we need to keep the epa in its box, or maybe keep its box out of michigan, because they overregulated and we suffer for it. moderator: general, you have the next question from mark. >> a priority for congressman -- for and congressman congressman was veterans issues. how would you address the need for veterans of the local and national levels? gen. bergman: thank you. that is a passionate question, because veterans deserve every benefit they get, because they have earned it. our veterans health care system is broken, pure and simple.

the doctor gave it a good shot, but it is not one person who makes a huge difference. it is a group that makes sure the v.a. provides affordable, accessible care, because veterans don't have the opportunity or desire to travel long distances. the veterans choice program is a good start. there are some serious challenges to reflect what the provider provides and how long the veteran has to wait. the veterans, and i have said , the v.a.larger forum does not see -- need all the large hospitals it has. it needs specialized clinics for ptsd, brain injury, and prosthetics. moderator: your time has expired. mr. johnson. mr. johnson: i was in iraq as a civilian, i saw firsthand the sacrifices made by our men and women in uniform.

i do not need to be reminded what we owe them. we need to increase our ptsd funding. number two, increase access and availability, serious reforms need to occur. third, we need to increase funds for women's veterans. where we disagree, i do not believe we should be closing down v.a. facilities. this summer, he said he wanted to shut down these big v.a. hospitals, "they were a waste of money." he wants to privatize these. , thethe american legion vietnam veterans of america, every major veteran organization is against privatization. the v.a. needs to be reformed, but it does not need to be privatized. moderator: rebuttal. gen. bergman: i know you felt secure in iraq because the marines were protecting it --

[applause] gen. bergman: you also added, doing combat tourism, that you asked veterans what they want. they do not want v.a. hospitals a long way away, they want hospitals close to them so they can go with their families, with a veteran-oriented mission. moderator: your time expired. >> i risked my life, i did not live in an embassy or an army base. i was a civilian. i was there to create a civilian system so our troops could come back sooner. jack is trying to confuse you. he has said in the past come on in the past,rd, --

on record, that he wants to shut down these hospitals. he says they are a waste of money. he is in disagreement with every service organization in this country. [applause] moderator: ladies and gentlemen, please, no applause. gentlemen, you have two rebuttals each. this question is directed to mr. johnson. >> where do you stand on rate coupling military spending because of a sequester? mr. johnson: we are in a sequester jam because our politicians cannot get along. our members of congress cannot get along. jack bergman has said he does not believe in compromise. that is precisely what has caused sequestration. we need to have members of congress go there and work on a bipartisan basis to get things done. not there representing a party. for 18 years we had that, and as far as sequestration, i do not think it should be applied to our military. we must keep our country and homeland safe. moderator: general?

gen. bergman: there should not be a cap on military spending during sequestration, but that does not mean the department of defense should not be held accountable for its spending. ,e don't need $300 toilet seats -- toilet seats. we need ammunition and weapons and gear that will keep our servicemen and women safe to they can win. as far as compromise, i do not compromise. it i will negotiate until the cows come home to make sure we come up with a solution that neither one of us going and -- going in could have envisioned, but it will lead to the greater good of our country because we negotiated in good faith across party lines, and that is what i plan to do when i get to washington, d.c., is reach across party lines to ensure that we come up with the best solutions for our country. moderator: please direct your first question to general bergman. >> where do you stand on refugee settlement, and you believe the u.s. is properly vetting refugees from syria?

gen. bergman: we have a challenge in this country, not knowing who is in our country. there are entities out there that choose to infiltrate us by using our immigration process, possibly our refugee process. the bottom line is, we need to know who was in our country, and we need to have a plan. i would suggest that most of the people from other parts of the world are forced to leave their homes because of conflict. they really do not want to come to america. there is a better, safer, closer place for them to go and be ready to return to their homeland when the situation is right and safe for them. we need to make sure that we know who is in our country because of the fact that we are america, and we will fight for what we believe is right. but we need to secure our borders. moderator: mr. johnson. mr. johnson: i believe we need to reform our immigration policies to keep us safe and keep our economy functioning.

number one, we need to increase border patrol funding and give them, the agents, increased authority. number two, we need to oppose blanket amnesty by encouraging just like it amnesty. ,y encouraging illegal behavior all we are doing is encouraging future illegal behavior. and number three, we need to address the visa overstays. hundreds of thousands of people come into our country and the department of homeland security has not kept entry and exit records. after 9/11, the dhs was funded to do so and has not implement implemented.en thank you. moderator: please start with mr. johnson. >> access to rural health care is a question across the congressional district. many people must travel hours for their care. what steps could be taken to improve health care access across the district? mr. johnson: we need to fund critical access hospitals. we have over a dozen critical access hospitals.

hospitals in rural areas that are important to the community. we need to make sure they continue to get federal funding. that is very important. number two, we must not privatize medicare. my opponent jack bergman has said he would seek to privatize medicare. medicare works. you pay for it. you aren't it. -- you earned it. it is very efficient. we choose not to privatize medicare. if we did, it would drive up the cost of health care for our seniors and make it more difficult for them. third, i believe we need to allow you, the customer, to go across state lines for health care insurance. not just be limited to what is available in michigan. moderator: general. gen. bergman: the affordable health care act has almost decimated rural health care. number one, it is not affordable. it is the first lie.

number two, politicians have made it worse by meddling. number three, the cost of medicare has increased. we have cut $716 billion from medicare to pay for the affordable health care. think of what we could do in rural health care with a that -- with that kind of money. if increased premiums have forced small businesses to take their employees out on the market, insurance companies are getting out of the exchanges. small businesses in the middle class cannot afford the unaffordable health care act. we need to repeal it and replace it with something that works, with a focus on rural health care so hospitals can provide the level of care in the rural area that the physicians and patients can both say, that is the best step going forward. moderator: rebuttal. mr. johnson: once again, a major

area where we disagree. jack bergman wants to move medicare into a voucher program. medicare is extremely efficient. it is a 1% overhead cost, versus a 6% in the private insurance arena. it works. we need to strengthen medicare and give it the ability to negotiate with drug companies. that would drive down prescription drug costs by about 20% to 30%. not again, hand over what you have earned over a lifetime to private companies so they can make a profit off what you work for. moderator: rebuttal. gen. bergman: my opponent here has said in an interview, he is proud of obamacare and what it has accomplished. very recently, former president clinton said it is the craziest thing i have ever seen. it does not work. so if bill clinton said that, we know it has to be true. [laughter]

moderator: next please start with general bergman. >> gun violence is making a lot of headlines. northern michigan has a rich hunting and firearms tradition. how do you propose addressing the issue of gun violence? gen. bergman: number one, as a member of the united states military, i swore an oath to defend the constitution. i do that in an armed status. i understand what violence is when it comes to utilizing weapons. the bottom line is, we need to make sure that our second amendment maintains its strength. it is not up for negotiation. unlike some of the folks like nancy pelosi or hillary clinton, they would say we need to amend all this or that. well, guess what? we need to support the fact that we have the right to keep and bear arms and do it responsibly. that is what our country is about. moderator: mr. johnson.

mr. johnson: whether you carry a weapon in the war or for sport or protection, you have a responsibility. we have that responsibility here in michigan. that is why i will work to protect the second amendment. in fact, i received an a rating, -- and a rating from the nra. i was endorsed by the detroit news because they were comfortable i would protect our second amendment right inside congress. that being said, we have to go after some of the epidemics of gun violence. we need to increase our mental health funding and increase prosecution of those who break the law with guns. we have seen a 40% decrease in prosecutions of gun violence. moderator: rebuttal. gen. bergman: my opponent says one thing to the nra but said another thing in an interview in detroit a couple years ago about agreeing with president obama's

plans for gun control. i would suggest we have a contrast going here in terms of message. moderator: mr. johnson, you have one remaining. >> university of michigan football players recently made headlines by kneeling during the test by raising their fist during the national anthem. where do you stand on this issue? mr. johnson: there are plenty of ways to protest the country without disrespecting the flag. moderator: general? gen. bergman: it is leadership, and it is respect. we live in a country where there is a responsibility of citizenship, and it needs to be shared with all. some might not understand what it means. it is up to us as a society to educate the folks that live within our borders, what it means and how positive it is to

be an american city -- american citizen. for someone, and i will assume they did not know better, whether it is their teachers, coaches, parents, mentors, needs to make sure they understand that is one of the most disrespectful things that you can do in this country. shame on them. moderator: please start with general bergman. >> northern michigan has a growing opioid problem. it is a problem for small communities. they do not have the resources to combat the issue. what are your proposals? gen. bergman: number one, good family environment, good decision-making, leads to young men and women who know the difference between a good decision and a bad decision. it is the family basis, the faith basis, the community basis that helps these youngsters understand that this is not the right way to go. we need to provide services to

the extent where they can understand that they need to live a cleaner life because they will not live a long life if they continue that way. i believe this is an area that should be handled at state and local levels. the federal government does not necessarily understand the differences between usage in one area as opposed to another area of the country. but i think coordination between state and local agencies goes a long way toward helping these youngsters get straight in my. -- straight in life. it is a challenge and it is a problem. if you talk to any sheriff and prosecutor, it is not just youngsters. mr. johnson: these are people from all walks of life. opioid addiction is a major problem. we have to address that and give it everything we have three the -- everything we have. the federal, state, and local need to work together to do that. in part, we have a drug problem because people work their entire lives, hard jobs like construction and military,

physical jobs, and they blow out a knee or shoulder. they have gone to a doctor and they have these drug companies push opiates on them. all of a sudden, they are addicted. we need to start working with our drug companies to get them to fund what is needed here. we have a massive opiate problem. talk to any judge, it will take all hands on deck, including specialists in the federal government, to act on this. moderator: please start with mr. johnson. >> the typical college student graduates with nearly $30,000 in student loan debt. how do we change this? mr. johnson: first off, we have to start funding universities. state and federal funds toward our universities have been continuously reduced, which is pushing the cost further on the students. number two, we have to allow our students to refinance their

debt. they are graduating with an enormous amount of the debt, and therefore, not able to participate fully in the economy. and cannot buy a house, get married. that is a real problem in terms of our local economy. third, we have to protect the same way we did with our g.i. bill. you are going to hear from my opponent that the federal government has no role in education. but he was also paid to work for a for-profit organization that went belly up. the federal government plays a role in making sure college is affordable, and that we increase our funding for students in college. moderator: general? gen. bergman: folks, we do have a problem with college debt. i would suggest the student loan program as it exists today is a subprime mortgage crisis waiting to blow up. college tuition has risen at the

rate it does because the government is a source of easy money. why not? government prints the money, colleges raise tuition, students end up in debt. what happens eventually? it collapses under its own weight. the reality of it is that we need an education system in this country that is affordable, that gets the government out of printing free money to inflate the prices because the student ends up shouldering the majority. when they cannot shoulder it, you shoulder the loan because they default. mr. johnson: speaking of default, jack bergman here worked when he lived in louisiana, for a company that is now penniless. they produced a for-profit university system. we have an obligation to invest in people, not to spend our dollars to corporate wall street and to see it wasted there.

we have $174 million going to college students in the first congressional district. this notion that the federal government cannot invest in college kids is wrong. it is good enough for the g.i. bill and we need to do it again. thank you. moderator: candidates you have used all your rebuttals. please start with general bergman. >> michigan is number two in the nation in terms of human trafficking. what should be done to combat human trafficking? gen. bergman: i know i do not have rebuttals left, but the bottom line is, he had information wrong on the first and with my role in edmc, but that is ok, that is what political operatives do, they twist, turn, and deceive. the point is, human trafficking c related and cody joined --

o-joined with how we handle immigration policies and law enforcement policies. how we handle all those issues that allow us to understand who is in our country and for what reason. if you do not have law enforcement or immigration agencies talking across the board to understand where people are coming from, how they are overstaying their visas, how they are here, then you do not have a program to ensure that human trafficking is minimized. it is day on, stay on. it will be here as long as we allow it to be here. we have to step on it. moderator: mr. johnson. mr. johnson: we need to work with the department of justice, homeland security, immigration services to go after this in a coordinated fashion. we have individuals bringing young women into this country under false pretenses. under false pretenses and essentially enslaving them. -- under false pretenses and essentially enslaving them. it is a massive problem across the country and i believe it takes a federal response as well

as state and local police forces. they need to recognize it when they see it. often police forces do not understand that the young woman or male arrested was part of a ring. we need to give them the training and funds to address this. moderator: please direct your question to mr. johnson. >> you both indirectly mentioned this topic, a rising number of retirees will be relying on social security and many are uncertain about its future. what should be done about social security for this and future generations? mr. johnson: social security is a promise that was made to you. you deserve a member of congress to make sure that promise is kept. social security has been that through wars, recessions, stock market crashes. we have to make sure that promise is kept. the answer is not moving social security off to wall street. the answer is not privatizing.

my opponent said straight to reform orn asked, privatized? he gave his answer of advertised. -- answer of privatized. i do not believe that. that is wrong. we do need to make sure that it is kept solvent and every person pays into social security who receives it. if we can left of the cap off $118,000, when you pay into it you are no longer taxed at $118,500. moderator: general? gen. bergman: seniors out there and audience and television land, your benefits will not be changed. you have paid in your entire working career, you deserve it, you earned it, you will get it. but when you think about the long-term of how we are trying to shape this world for our kids and grandkids, how do we ensure that social security is there for them?

we do not have the opportunity to continue that program as it exists today. because under the current rules, it will be dead, unfunded, in 2032. we need to make sure that whatever it is in the future, it needs to look like, a contribution plan where you as the individual control the risk of your investments so you get the return on your money that you want. moderator: please direct your question to general bergman. >> congress has a low public approval rating, why is this? gen. bergman: you are sending the wrong type of person to be your congressman. bottom line is if all you have ever done in life is be a political insider, and worked through the system, does not matter which party, the bottom line, that is all you know.

why should you have a high approval rating, you are not doing anything? we need members of congress who actually have experience in various forms of leadership roles, so they can learn to work together like a good business leaders do. they are held accountable and responsible for their actions, and when you cast your vote, you need to make sure that the person you are electing is not going there just to get another promotion on their political career ladder. but for someone who really wants to go there to do the job for you, the constituent. that is what will make the ratings go up. moderator: mr. johnson. mr. johnson: we need to bring compromise and civility back. that takes a leading by example. we have left for 18 years. he rolled up his sleeves, and went to washington and worked on a bipartisan basis to get things done. you cannot work with other members of congress without questioning their motives. we have got to work with both

sides to get things done in the country. i have the experience of doing that. i thought in my own party -- i in my own party on tpp. i disagree with most of my party on the second amendment. i worked with both sunni and shiites. i am proud to have the -- have multiple endorsements. it is about setting aside by partisan differences in getting the job done for the american people. moderator: that concludes the question portion. gentlemen, you have 60 seconds each for concluding remarks. general, you are first. gen. bergman: thank you for being here tonight. i am a proud united states marine and i love our country deeply. that is why i decided to step up. november 8, you have a choice. the good news is, the choice is clear. you want leaders without prior

experience, or do you want more lyrical operatives to represent you? a straight talking marine corps general, or a political operative? someone with experience and accountability, a general officer commanding thousands of troops? and airline captain who took responsibility for lives on a daily basis am a and still a small business owner. my opponent was chairman of the democratic party, that is his resume. we need to repeal obamacare, we need to secure our borders, protect the middle class. i humbly ask for your vote. voting honors the sacrifice of the men and women who served. thank you, god bless you, and god bless america. moderator: mr. johnson. mr. johnson: thank you mark, and thank you to the audience. we heard a very clear difference between jack and me. jack, on all fronts, wants to take what you have earned, a lifetime working for, your social security, medicare, ba

-- v.a. benefits and allow a corporation to come in and profit from it. that is wrong. jack wants to take our tax money and ship it off to wall street. i do not agree with that. we need to invest in us, our people, our land, our great lakes so our families can stay here and succeed. to bring high-speed internet across the district, return passenger rail services. we need a member of congress who will look 5, 10, 15 years ahead. that is the type of congress member i will be for you. i appreciate consideration for your vote on november 8. thank you very much. moderator: we would like to thank the candidates for your purse -- participation. we would like to thank northwestern michigan college for hosting this evening. and i would like to thank my colleagues for the wonderful work they have done this evening. thank you at home for joining us

here at make sure you watch our late news for reaction to the debate and all the days breaking news. continue the conversation and tell us who you think won the debate, login and vote on facebook. military, law-enforcement, firefighters, emts and other personnel for the service to our communities and our nation. good night. [applause] [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> our coverage of races around the country continues friday with senate race and wisconsin and nevada. russ feingold is trying to win back the seat he lost to ron johnson in 2010.

friday at 8:00 p.m. eastern in a debate. nevada republican congressman is running against the former attorney general to fill the open seat left by the retirement of senate minority leader, harry reid. debates are live on c-span as well as the c-span radio app. >> a court decision yesterday looks at the operation of the consumer financial protection bureau and takes a look at its leadership. and takes a look at its leadership. joining us on the phone to talk about it is lydia wheeler with the hill. can you start with how they are currently headed up? what did the court have to say about it? is headed up by

by the, he was appointed president to head this independent agency in 2013. foru.s. court of appeals the d c circuit ruled the way it is set up now is unconstitutional. congress made a mistake by creating a far-reaching agency led by a single director. it should have had a number of commissioners and a board of directors to keep it in check. host: why was the current structure set up in the first place? guest: that was a decision that congress made. frankgency came out of. -- dodd frank financial reform. there are other agencies like the treasury department, but the

treasury department has to report to the president and follow the president's directives. no, the court says you have to act more like the treasury department. you have to be governed by the president and the government can supervise you and remove your director at will. if the organization is declared unconstitutional, does it have to stop operations? guest: absolutely not. this does not impact the operations of cfpb. rolling out its rules and taking enforcement action. this is a tweak of how the agency should be run. it does threaten its current director. in, itresident comes gives the new president the power to get rid of richard,

even if he wants to finish out his five-year term. -- thesethe cfpb actions would be voided? guest: that is something you may see. people come in and challenge actions they've already taken against companies claiming they are unconstitutional. now, the agencies under the supervision of the president, you might not see those challenges. what was the reaction from the white house? guest: the white house said this is a tweak and it does not change cfpb. they don't seem too concerned about it. said that thisn agency is her brainchild, said we are going to appeal this decision and it will get overturned. that is an option that cfpb has.

they can ask the d.c. circuit for a full review of its decision by its full roster of judges. or, they can appeal to the supreme court. host: who brought up the lawsuit in the first place? guest: phh corp, a new jersey mortgage lender that took the agency to court after cfpb fined it for allegedly accepting kickbacks from mortgage insurers. takeaction pushed them to the agency to court. and argue something republicans have long been arguing, that cfpb is unconstitutional. lydia wheeler is the federal regulations reporter for the hill.

>> when i was trying to come up with my documentary or studentcam, i was adopted because there were so many elements i was trying to put into it, and a lot of information to try and communicate. realizedstep back and it is like a visual essay. i did essays all throughout high school, so it was something less daunting. i looked at it from that perspective of gathering information, and instead of writing that information, i am filming it. i would urge anybody who is thinking about making a piece for studentcam to reach out to as many people as they can to get a lot of interviews. get as many perspectives as they can. they are experts that are so much more knowledgeable about the subjects. as many of those people that you can get in your piece, the more

credibility your piece is going to have. it is not just going to the a high school student trying to solve massive problems, it turns into you are consenting useful information by compiling all of these perspectives. >> your message to washington, dc. tell us what are somebody most urgent issues for the new president to address in 2017. it is open to all middle and high school students, grades six through 12 with $100,000 rewarded in cash prizes. students can work alone or in a group of three. andude some c-span program score opposing opinions. the $100,000 will be awarded and shared between 150 students and teachers. the grand prize will go to the student or team with the overall best entry. the deadline is generally 20th,

2017. mark your calendar and help spread the word to student film makers. 20,he deadline is january 2017. market calendar and help spread the word to student film makers. 6:00 p.m. lynch -- eastern on c-span. >> reporters covering the supreme court and white house talk about the impacts of a donald trump or hillary clinton presidency -- presidency. hosted by the national press club, this is about a hour and a half.

>> the idea for tonight's event came listening to a lot of the rhetoric this campaign season. it is no news that both candidates have not been awesome on issues of press freedoms, giggly issue of access, transparency. hillary clinton's issue with her private e-mail server, as well as information during her tenure at the state department, as well as giving interviews to the media have not been great. well known to have had a black list for a number of less organizations. an environment of hostility among his supporters toward the media who he likes to blame for problems in the election cycle. in his comments about what he

would do to the press organizations he doesn't like if he becomes president, specifically how he would change libel laws, that really peaked my interest because we didn't want to explore what could happen if a future u.s. president is elected who would -- we do have first amendment protections in the constitution, but how -- if the supreme court's makeup is changed here at what can be chipped away by practice in terms of our rights. i would like to turn over to our moderator, chuck who will layout the format of the event. thank you. >> thank you to the national press club journalism institute for hosting this event. thanks to the folks who are here in our audience and thank you to the c-span audience watching this from home. the national press club

journalism -- providing professional development and train services for the journalism community and scholarships to aspiring journalists. we thank them for their work in service. we are coming to you live from the historic national press club . the perfect setting for the topic of our discussion tonight which is can a president really rewrite the first amendment? after all, before donald trump famously told us all that he was going to utter the keyword -- we" word --" -- are going to examine exactly what from both parties standpoint, it is a bipartisan

issue. who is in the white house can have on the public's right of access to information. as rachel mentioned, my name is chuck. i'm a partner at the law firm. i represent journalists and washington, dc, and around the country. joining me to give us different perspectives, starting on my far left is can it just. -- kenneth just. kenneth is an author of the "supreme court yearbook." he authors a popular blog. he graduated from georgetown -- he graduated from harvard college and georgetown university. he serves as an adjunct professor and often appears on broadcast commentary.

next to me is kitty townsend. she is at a wonderful non-profit that is dedicated to press issues. she is a brief filer and she is suing the government under the freedom of information act. she delivered an outstanding arguments to the d.c. circuit that actually won. it is a case that stands for the proposition that when a government employee puts their government e-mails on a private server, the foia law follows. >> not that government employee, though. >> we will talk about that one. it may have ramifications. seated to my right is anita kumar. she covers new information every day about the white house and she has been covering the

clinton campaign, sharing her company's coverage of clinton, in addition to her work as a white house reporter. she previously worked at the washington post and the tampa bay times, covering government at every level. she is a graduate of the university of virginia. finally, my friend at the end is adam, the united states supreme court reporter for the new york times. we will discuss some of his work in his sidebar and his news stories. he is a graduate of the yield law school and he practiced law for 14 years before joining the new york times in 2002. he spent a great deal of that time defending the new york times as one of its in-house

counsel. he has taught courses at yale and the university of chicago. thank you for joining us. the jumping off point was the trump comments where he expressed frustration about journalism and journalists, making suggestions that caught the attention of a lot of people. i thought we might show the clip that launched us into this area of discussion. >> you have talked about being unhappy with the new york times and the washington post. you said you should open up a libel laws. you can see right now but you have to prove that they published something they knew was false or acted with reckless disregard. how would you change that?

>> the new york times has written stories about me that are false. they know they are false. they are so false. they are defamatory. everything is libelous. the problem is, the libel laws are nonexistent. i could say you are x and it is unfair. if somebody writes falsely, you should be able to sue. >> you can see tomorrow. >> you can sue, but you can't win. they are set up that way for the papers. if i get in, i'm going to make the laws fair. if somebody writes a knowingly defamatory story about me, i should be able to sue and get damages. i will have the laws changed. people say, "let's go after them more." but the laws are unfair and it

makes the media dishonest. >> that was trump, the republican candidate, on fox news. he talked about wanting to open up the libel laws and he says , "i am going to make those laws president." am if donald trump is elected, he will be the head of the executive branch. does the executive branch control the flow of libel laws? >> thanks for the question. thank you for inviting me. chuck has spoken to my law school class several times. either you are returning the favor asking me to return the favor. >> retaliation. [laughter]

>> the question goes back to high school civics. most of us will remember that the government of the united states has three branches. congress is the one in article i. the president is in article ii. the president is entrusted with executive power. the judicial power is with the supreme court. so, when donald trump uses the phrase, "i am going to open up the libel laws," he is behaving as a candidate would, using the first-person singler. -- the firstss person singular. that is a gross oversimplification.

the governing libel law of the united states stems from a landmark decision from the supreme court of the united states from before i was covering for anybody. it is a case that many, if not most, may recognize by name, new york times v. sullivan. i have not heard mr. trump terms, and exactly those but if i heard him correctly, he said that you ought to be able to sue when it is false, defamatory, and they know it is. that sounds to me like new york times versus sullivan. i do not know how he plans on changing the law to open it up. chuck asked for a historical sketch.

let's go back 300 years to the case of a german immigrant who printed a paper called "the new york weekly journal." in that journal, some writer, i'm not sure if we know the writer of the story, accused the colonial governor of various acts of corruption and the colonial government charged the printer with libel, like charging your i.t. staff for libel for whatever is published in your news organization. libel law as it existed in common law in england was very favorable to plaintiffs on the presumption -- and the perception -- and the

presumption was that you had the character. so, if somebody published something defamatory, you were presumed to be liable, unless you could prove innocence. that was the law that the judge gave to the jury in the zinger case but these are he -- but the jury spent 10 minutes and finding him not guilty. it was a landmark in the free press law in the united states. unfortunately, when the united states became a republic, the first amendment took up -- it says that congress will make no law abridging the freedom of speech or press. today we would say of the media. the first amendment sounded good. it was seven years after ratification that the federalist president, john adams, and his

allies made a law called the sedition act of 1798, which drove a truck through the first amendment, making it a crime to print malicious writing against the government of the united states, either house of congress, or the president with the intent to defame. that does not sound like free speech. several people, including editors and a sitting member of congress were thrown in jail under that law. the anti-federalist had the last laugh, thomas jefferson. the jeffersonian congress repealed that law. >> donald trump has a precedent of john adams to fall back to. he says he wants to open up libel laws.

>> that is exactly right. let's fast-forward to the new york times versus sullivan. this case does not involve a story or an editorial written by the new york times. it is an advertorial, which defended martin luther king. he was at the time in jail. the new york times published it and it had some minor errors about the montgomery police department which the police commissioner construed as personal defamation. he won and got a big verdict, which i think was six figures. it reached the supreme court and the supreme court said, we have never had the occasion to consider the constitutionality of libel laws. we now have the chance.

justice brennan wrote his best decision ever. he said, look, false speech is constitutionally detected, because otherwise you would have a chilling effect. defamatory speech, you can write and be critical of the government. that is protected. when i teach this class, i make a circle. the other circle and say when the two circles intersect, it is still constitutionally protected, unless the statement was published, knowing that it was false. or with reckless disregard. that is the test called "actual malice." that is a misleading term because it doesn't have anything to do with it well.

that actual malice test was applied and adopted for suits against public officials and that was expanded to cover low ranking public officials, candidates for public office, public figures, public figures including a football coach at a football college, a retired general who led a demonstration against desegregation, the chief executive of mobil oil. a public figure does not necessarily include a prominent socialite in a high-profile divorce case. somewhere between public and private, the protection for a libel defendant is weakened. donald trump, ever since he has been public --

>> donald trump would be a public figure and you make it hard -- you make it seem hard to win, as a public figure. >> it is a substantial obstacle that few plaintiffs could overcome. it can be overcome. , you canactual malice show, for instance, that there is a case where a reporter had a tape that showed what he was about to write was false and the editors said that he would

publish it. the actual malice test would be overcome in that case. it was hard and it was intended to be. >> donald trump says that he is being maligned and that he is offended. he uses the word, "knowingly." it sounds like umbridge, not falsehood. does the law allow for that? >> it does not. offensiveness is a criteria in private lawsuits. if you publish something, an embarrassing fact about somebody, a private and embarrassing fact that is

offended will tsive to the "reasonable" person, yes. does offensiveness trump the first amendment? sorry. that was not intentional. probably going to do that a lot. the most recent iteration of this is from the roberts court. that was in snyder versus phelps where the westborough baptist church people were demonstrating a funeral of a fallen servicemember and the demonstration was very offensive, but the supreme court the snydersorry" to family. "i'm sorry this was offensive, but that is what the first amendment is all about." the notion that the trump

criteria, "personally horrible," the horribleness of the article would have no bearing on a libel suit. >> in fact, there is an argument that you sometimes have to offend and that is the job of journalists, to push the buttons of public officials to promote discussion. so, you know, looking at the snyder versus phelps decision, which says offensiveness is not grounds enough to bring a lawsuit and that the offensive speech is protected. that decision came out of the roberts' court. chief justice roberts has been the chief justice for 10 to 11 years now. going forward, how strong has this court been on the first amendment issues? >> i think for our purposes,

quite strong. there are knoocks and c rannies where people say that the roberts court has not done as much as it could. the first amendment tries to guarantee that the government will not censor speech the people need to know to be active citizens in the democracy and i so on that score, i don't think there should be particular reason to be afraid of the roberts court in this regard, that somehow they will cut back on the new york times versus sullivan. there are questions on whether law enforcement officers are public officials. that is generally what the courts have held. publicry beat cop sets policy. so, you can see the argument going the other way. there is no interest on the current court on cutting back on new york times v. sullivan.

the person i had a problem with, justice scalia died. way is aand its problematic decision. it is in the fabric of the country now. nobody wants to cut back on it. can was saying, the northern -- ken was saying, the northern press was being sued by wallace southerlawless southern officials who wanted to make sure that they did not cover the civil rights movement. they needed us like oxygen to show what was happening. in that session, the court constitutionalize these courts. and then, moreover, because brennan could not get a majority for what he really wanted to do, and what would be the correct first amendment

lawsuitsorbidding for public officials. there was a false standard of reckless. i can understand why scalia did not originally love that interpretation of the first amendment. but if trump were elected and wanted to do something about times versus sullivan would be to go against the supreme court. changes ate are seat times in the supreme court. we just had lawrence v. texas, a right to marry case. and for the audience's benefit, the background. in 1986, the supreme court held the state could criminalize gay sex. thein 2000 something, supreme court reversed itself.

>> it is true that cases are occasionally overruled. that is correct. >> you are saying that could happen. it is not likely to happen with this court. >> the current court, i don't see at all. with trump nominees, perhaps. but this is one of those principles that is so settled and ingrained that i don't think this court will give the press any further protection, but nor do i think it will cut back on what for two generations now has been thought to be a core protection. >> can i just note. i believe that chief justice burger and chief justice byron white are the only two justices over a 50 year period who have called for reconsidering times versus sullivan. more.d not agree there is no one on the current court who wants to take a bite out of it. >> we could not expected this court to extend the rights any

further? >> katie may have a view on this, but if i were still a press lawyer, i would try pretty hard to keep a press case out of the court. idol think they are eager to do us a lot of favors. >> it is an interesting point because every few years, we have a reporter's privilege case with juda judith miller or james rise, getting threatened. >> we have not had a press case -- are they receptive to reporters on these cases? think godank god, no. i don't know if we would get a single vote for the reporters privilege. i am reliably told that when judy's case went to the court, there was not a single vote to take the case. not that i wanted to see my colleague in jail, but for the

good of the reporter's privilege , that might have been the right outcome. >> this is the time when it put the plug in for a federal shield law. write your congressperson immediately, please. you made an illusion to justice scalia, who famously had said abhored the actualthe actua malice standard. >> he was not a huge fan of the press. but he got the first amendment had an original meaning. it does not fit very well with the original meaning of the constitution to have these false standards. i think it is possible you could have made the argument to justice scalia that public officials, as such, should not be able to sue because what the first amendment should protect is all criticism of the government. is to fine-tune it in a way

hard to support as an original matter. >> what about in terms of the offensiveness cases? the court still seems to be clinging to the notion that criticizing people in power should not be actionable. >> not only people in power, but snyder's against phelps. this grieving father was trying iraqry his son who died in for his country. he had to put up with lunatics. the supreme court said, we have to protect this, that we don't like it. >> there was one dissent in that case. >> justices occasionally dissent. justice alito thought that this was in the nature of "fighting words." i think it was bob barnes at "the post" who interviewed the grieving father, who said

they did note, understand the human values at stake. >> what about some of the other justices, if you would not mind talking briefly about justice breyer and justice thomas, their particular views on the first amendment issues. in somece thomas is, ways, pretty good on the first amendment, particularly when it is powerful people's or corporation's rights at stake. people with students or in unions. justice breyer might be the worst judge on the cord from the perspective of the press. from theon the court perspective of the press. most people think the united states first amendment law is categorical. if you are within the category of protected speech, you get complete protection. justice breyer takes a european

view. he will balance the competing interests at stake. he will often come out on the right side of the balance, as he lying the case about about having received medals. he will do that only after the kind of balancing that makes it clear if the balancing or slightly different comic he would come out a different way. >> it makes it harder for these folks when it is less of a white line, and more of a balance. you mentioned earlier, if we do in a president drop i trump office, the apparent power of the president. we have one vacancy right now. is that a legitimate and valid concern? >> we have three justices who are approaching or past 80. kennedy and ginsburg among them. they will not be on the court very much longer. the next president, particularly

a two term president, will appoint those three, and maybe others. , you had aginsburg wonderful interview with her recently. has justice ginsburg shown any sign that she is ready to step down? >> to the contrary. she is sharp. she says she will keep doing it as long as she is able to. and she is chomping at the bit at the act of having another democratic appointee. that makes her the senior liberal justice in a five-member liberal majority and she will come up for the first time in her long career, get to start signing majority decisions. that prospect seems to brighten her day. [laughter] >> and i don't think she is going anywhere, and less there are health problems. >> she is determined. let me ask you, you are out on the campaign trail with the candidates. they are talking about their particular preferences for either people are profiles of

the supreme court. donald trump has mentioned the silicon valley billionaire who bankrolled hulk hogan's lawsuit against galker. is it run a sitting with voters? do you hear people talking about that? >> not really. the part about the media bothers us. we complain about it all the time, but not really. when we write stories, i am sure you get the same readers -- if you write about yourself or about the media, people are always complaining that it is all about us. i don't know. i definitely get voters talking about the supreme court, not about the media part. just wondering who they are going to a point, what will that be like. i just spoke with the younger voter today who said, i am trying to convince my friends to vote -- he was going in for hillary clinton -- two vote thinkin-- to vote thinking about

the next 30 years. thinking about the supreme court. we cannot look at the next 4-8 years. >> adam, let's make this a little bipartisan and look at the clinton side of things, at least from a pro-press standpoint. as a president and automatic ticket to pro-press justices? >> there are many conservatives who take a very expensive view of the first amendment. it might not be the first amendment that liberals recognize, but citizens united was a classical first amendment decision. i don't know this is a partisan issue, in that sense. >> and justice brennan was obviously a republican appointee, considered by eisenhower to be one of his two biggest mistakes was putting him in office. maybe there is something historically to that. >> right. though brennan was not an example of an ideological

appointment, and rather, the re to get the catholic vote. for the first time in american history, and it seems so normal in our polarized country, that in a closely divided court, every conservative justice was appointed by a republican president and every liberal justice by a democratic president. that is not the way it used to be. other criteria used to happen. gerald ford said, bring me the best lawyer in america when he appointed judge stevenson. other people put their cronies on the court. there used to be a jewish seat. ra where thein an e court sadly, reflects the polarization of the nation. trump recently threatened the "new york times. would you be worried? it was about the leak of the tax records that was reported on,

his 1995 tax returns. would you be worried about a case like that bubbling its way up through the court system? >> no. we are right and he is wrong. [laughter] >> you are allowed to publish newsworthy information that is accurate to inform the electorate during a presidential debate. that is not a closed question. >> so, let me as anita. if the courts will not bend to the president's will, would you be worried nonetheless? let's talk about president trump in the white house with a freedom of press standpoint. >> i think we would be worried with either of them. i know a lot of attention has been paid to trump, but we think whoever wins the election that atlas will be less than it currently is. president obama is not looking so bad anymore.

we have been complaining about him for years on press access. and i think the white house press corps, and those of us on the campaign, think either candidate will be worse for press access. i think we would be worried, not necessarily about legal cases. i think we would be worried about every day access in the white house, what information we would get. you can just look at both candidates and look at how they are treating the press. >> tellis and accurately. anecdotally. us start with trump. >> trump is pretty vocal. those that cover him. and i have been covering president obama now and hillary clinton. , i thinkt cover him the way i would characterize it, he is out there talking about what he does not like. he is complaining about it.

of course, we all hear from people when they don't like stories, but this is part of his campaign now. campaign rhetoric, it is about the media and, "when i get into the white house, i'm going to change things. anecdotally, i will use this example from sunday. he has a traveling press corps. most of the major media outlet, television, print, and radio follow him around, follow both candidates around. seconday, which was the presidential debate, we were all in st. louis. a note came across from the trump press corps, which was from new york, saying they just learned donald trump had left them behind and had already traveled to st. louis and they did not even know it. the candidate is not traveling on the same plane with the press, which is why that could happen. and we know that, but there is not even information there. he is not providing information

that candidates have provided before. very littleing information about fundraising, beyond what he is legally required to report. scheduling -- there is just no information coming out. >> that he is being managed, for political reasons, in some respects the management has become higher and has had more influence over him. every once in a while, he gets off the leash. what about a president trump, though? what would that look like? >> i think we don't really know because it is hard to tell what is rhetoric and what he will really follow through on. i think he will have press conferences because i think he would not be able to resist doing that. i think he would lash out at the media, but still have more than president clinton, which is a funny thing to say. there are many things that could happen that are not lost in legal issues.

how would his administration handle foia? it is not great right now. it is pretty slow right now. you know, the reporters that come into the white house, could he restrict the access in the white house? that is unclear to us. don't want to"i have a set of reporters follow us around?" when president obama leaves the white house, we are with him. for me, somebody is representing the newspapers, radio, and television. when president obama goes to his daughter's school, we are there. when he goes out with his wife, we are there. we are worried about all of those things on a daily basis. so, small things every single day. >> what about candidate clinton on the campaign trail. how has her access been? hear about it as

much because she is not vocal about it. i would say hillary clinton famously has not gotten along with the media since she was first lady. i mean, she is not talking about it every day. access would not be a priority if she became president. on the campaign trail, we pushed for more access, for flying on the same plane with her for a long time. just to give you perspective. for the last two cycles, 2008 and 2012, both candidates, regardless of party, allowed their to be a protective pool. reporters who are traveling with him, no matter what. if something happens in history illness and there is an or god forbid, a terrorist attack, we are there to witness history. neither candidate has done that yet in the air not going to.

both of them did it, or all three did it twice before they became nominees. so, for hillary clinton, we for that to happen, at least when she became the nominee. it still has not happened. of what we an idea are talking about, on september 11 of this year when she fell ill during the ceremony, they've left the media. that is not supposed to happen. i don't think it would be a priority on her. she is giving out much less information than president obama did as a candidate. yes, she is giving out some information on fundraisers, but she is not giving out what he gave out. president obama, i don't think he did it in a very good arm, but he was giving up visitor log

. at least there is some form out there. do i think hillary clinton would that?at but smar i think they would be less information, less news conferences, less interaction with the media. >> let me open this to the panel. is that an increasing trend we are seeing in whoever occupies the white house, that there is more control and less willingness to engage? >> can i just recall briefly, i was writing about health care when the first lady was head of the health care task force. i believe i am remembering correctly that she successfully resisted having the open meeting at applied to the task force withshe was convening

industry and consumer representatives to say that hillary clinton would not make --ess a priority is >> i was being diplomatic. even if it was not trump and clinton now, whoever the candidates would be, i think we more traditional press access. the obama white house says it all the time, not in a mean way, but they don't need us as much. they have got facebook, twitter, blogs. they can directly get information out. they don't have to go through what they consider a filter. we complain about that all the time. their answer is just, "that is just the world we live in now. no matter who wins, that would be the case. >> do they need you? do they really need your

interpretation if they can directly impact the public and directly get the information out? >> feel free to jump in on this one. i think people get information in many different ways. we know newsprint is going down, but we still provide information in ways that people read or listen or watch on tv. and also, what they are calling journalism, we do not call journalism. they can get out there and message. that is fine. but we are actually taking that information filtering it for you and explaining it for you. what they are talking about is it outrnalism, putting to people who are, in this polarized world, it is basically on the right and left. they are taking information and saying what they want with it. obviously, i know we are still needed,. it is just a question of whether the president thinks that. >> i do get the sense that they

read is very closely. i don't cover the white house, but the white house cares what the "new york times" says about the white house? does the supreme court care about what the "new york times" says about it? >> on occasion. >> good to know. >> i would like to ask a question. obama has been criticized for for the press in launching leak investigations. do you have any sense of what these candidates would be like? >> no, but that is the wary. years ago when people thought the obama administration was actually going to go after reporters criminally for leaks and they were going to start investigating, and then they kind of toned it down. i think we all thought that was .he way it was going to be

and i think definitely with a donald trump, you would worry about that. i am not sure about that would hillary clinton. again, i was being diplomatic when i said it is not a priority. she clearly does not want some information. that is not even putting information out there. that is actually going after reporters. that is a huge leap. >> let me pivot over to kaite and let's talk about the obama administration's record for going after journalists. there were a couple of the famous instances lately with the department of justice and subpoenas. >> attorney general holder was led to revisions through guidelines. one of the cases most prominent isan.mes rice anre they were also issues for the phone workers of the associated press, which they were not aware

of. rosen had his e-mail, a warrant basically under the store communications act for his e-mail. light reallyto alarmed the media. by theoup was formed righ department of justice. now, the reforms made are not perfect, but i think they were meaningful. the guidelines now cover warrants, when they previously only covered subpoenas. but the devil, and i talk of it

about this with respect to for you as well. people say the devil is in the details. i think the devil is in the implications. are set forthts by congress. they of course, decided not to apply them to themselves, only to the executive branch. at how those mandates are carried out depends very heavily, i would they on the administration, what the priorities are, what the views are on transparency. even though it is a congressional mandate, it can be shifted, depending on not just to the president is, but who the president appoints as the attorney general. at also goes for foia implementation. >> when i teach the freedom of information act, i say, this sounds really good, and then you list the 13 exemptions and they

turn out to be a roadmap for getting out of it. >> or, look at the dog guidelines on how to want -- or, look at the doj guidelines on how to respond to foia requests. there is always more to foia than what is in the statutes. >> and of course, the delay. the delay is endemic. anybody can ask for a document under the freedom of information act. requests too many process quickly, but the important ones are not prioritized. >> there are deadlines under foia, right? that is the law. read, katie? >> there are deadlines, though they are routinely ignored. is extraordinarily slow. the situation became worse under the obama administration with

the backlog and delay. and the assertions of exemptions that increased. famously, on his first day in office, obama pledged to have "the most transparent administration in history." let's go back to the memos. the focus of the panel is who is in the white house and who control the access of information. it was a major shift, at least on paper, between two administrations. >> this is a great example of how an administration can impact very seriously the efficacy of the law. this is the memo from 1986. the memorandum said, famously, put in place a policy that was in place for over two decades

that essentially told agence these that if records were requested that were excluded from you, not subject to one of the exemptions, but an exclusion, meaning it was somebody requesting information ,bout an informant, for example than the agency could respond, but there were not any such records because there was a built-in assumption that the request meant records subject to foia. a lot of folks portrayed this as , you're basically giving license to the agency to live, to say there are no records, when in fact there are. >> it was actually passed by the, it was an executive move by the reagan administration under edward mayes. it had some sense to it. in order to prevent the mafia from sending foia requests to the government for information that might lead to the disclosure of information about investigations against them.

i will just share an anecdote with you. fast forward to 2013 when my firm litigated a case on the surveillance of martin luther king and the records related were an issue and the obama administration did not tell us that the records existed. they denied the existence under the so-called exception "c" to foia. you usually talk about the "b's." >> exactly. this demonstrates a manner in which foia can be undermined through advice from the department of justice. the office ofer information policy within the department of justice. they are in charge of giving guidance to all agencies

as to how foia should be implemented. you can see how this devise, which was in place for two and a half decades, until 2011, when it came into light again, when it was discussed, should we be applying this policy? is this good for transparency? i think you can look at the holder memo, which was within days of president obama taking , which talked about a presumption of openness, a presumption of transparency under foia, and this going to be the most transparent administration in history. it did not quite turn out that way. i will say that in the last foia reform bill that just passed this last your, are actually, earlier this year, the presumption of openness that was in the holder memo was codified. so, it is now part of the statute it health, which does

sometimes happen with executive orders, discussing implementation. it is not clear whether or not that will have any impact. we will have to say how that plays out through the courts, or the interpretation of that presumption. but i think that does demonstrate that there is a give and take. one thing i wanted to say about -- goes back to ken foster best point about -- that goes back to ken's point about the three branches of government. there was a tension between the party in the white house and the party in congress. that tension is not always there. when you think about who the next president is going to be and how that might affect implementation, and whether or not there is additional foia reform in congress. you should look at the entire a literal map.

not only who will be president, but who will be in control of the house and the senate. but historically, to the extent we have seen where they are controlled by the same party, it is less likely that you are going to get aggressive calls from congress for more transparency from the executive branch. and it is worth noting that the supreme court is no friend to the freedom of information act claimants. most of the cases go in favor of the government agency resisting disclosure. >> that is true. i would be interested in the thoughts of adam on this. this is not a favorite topic area. a judge who had a lot of expertise on this was scalia and of course, the current obama appointee, who i think is just floating out there somewhere, merrick garland.

>> he has pretty good on foia. >> he has been. i have appeared before him in foia cases. the cases he listed as one of his most important -- in fact, a number of them were foia cases. i wonder if you think that would change if he ended up being -- >> i am not dying for them to take the foia cases. these are not big picture cases. they turn on very small interest special interest issues. cover,y are no fun to but more importantly, they will not change the lot in any fundamental way. >> also, merrick garland is not going to get that spot. i mean, here we are. the countdown has begun today with president obama's last 100

days. lameu see no chance of the and the hillary wins, republican saying, "maybe we will take the 63-year-old moderate after sall?" >> better now. i guess i take mitch mcconnell on his word and i shouldn't. let's talk about for your practice. tell us. has there been a trend, has it been a good trend? been a trend has and no, it has not been a good trend. i think this does reflect a little bit about the bipartisan towards the trend is less transparency. administration,ansitio regardless of party, has been

more secretive than the last in terms of foia. part of that is the increase in the number of foia request. the number of withholdings has increased in a way that is not -- and when i say withholdings, i mean exertions of exempted. this is not really an inflammation for that. i think that if you take the obama administration first day proclamation at face value and say, this is what this administration intended. they intended for this to be the most transparent administration in history, you have to ask yourself, "what went wrong?" i think part of what might explain that is simple inertia within a bureaucracy. foia is agency by agency. it is completely unfunded.

congress allocates no funds for foia. each agency must respond out of their own budget. there needs to be leadership, top-down, from the agency that really views foia compliance and transparency. be viewed as a real priority. simply saying, we take foia really seriously as an administration is not enough. real -- it is difficult. it is really difficult to counter act the delays in the backlog and to move to make those improvements. i think that if you -- that is not going to improve, right? it doesn't matter whether it is president trump or president clinton. frankly would not matter if it was some other candidate who believed so wholeheartedly and

transparency that they wanted to really make it a priority. it would take a lot of effort. so, to the extent it is not a priority for either president trump or president clinton. transparency is not going to be a priority for them. i think it is only going to get worse full -- i think it is only going to get worse. the administration really has to put some effort into addressing the problems that are there. >> obama, and they love to say this as they talk about legacy, "they are the most transparent administration in history." you have people who say, "i have waited years and i do not have an answer to my foia's." and, the only way the hillary clinton e-mails got out were because people sued. that is the reality. >> and it obviously takes money,

effort, and lawyers. how has the administration responded differently from the bush and administration? when it comes to foia litigation? you spend your days in the trenches in court. >> i don't think so. and again, i think it does matter, not just to the president is, but who the president appoints to be there attorney general. for example, a president trump might have a view on transparency. attorney general christie might have a different video, or a worse the new. -- might have a different view, or a worse view. it matters who the appointee is. i do not think there has been a real shift in how the cases are handled by the department of justice. i think that is one way things could be improved.

i think oftentimes, you get into litigation and how those cases are handled or litigated, where maybe you should not take three rounds to tell the plaintiff that yes, in fact, there are documents responsive to your request. help reflectcould a bigger and better commitment to transparency. >> we litigate quite a bit of foia work and we have seen quite the same template in the bush administration and obama administration in terms of the dismissive practice and aggressiveness. it takes getting in front of the right judge, oftentimes, to make all the difference. till thell the folks about your holdron case, a fascinating exercise. >> this was a case that was brought by a conservative, the competitive enterprise institute, as they would call

themselves. they sued the office of science technology policy. they were attempting to get e-mails of the director of that agency that he had stored on basically, his non-governmental e-mail server. he was conducting agency business through this nongovernmental e-mail account. the agency responded that the nongovernmental e-mail account was outside the scope of foia because it was not the agency's e-mail server. we became involved in the case, it sounds familiar. i know, it sounds familiar, right? because it sounds so familiar, we and a number of media organizations begin concerned that a bad ruling in this case, was affirmed by the d.c. circuit. it was a bad court ruling approving the government's argument that the agency has no obligation to search for this, it is outside their control, not subject to foia. the competitive enterprise

appealed, and a host of organizations, including the "new york times" and the amicington post" filed an us brief, basically saying how disastrous this would be if it was upheld. it was not upheld by the d.c. circuit. it was reversed and the court made it very clear it does not really matter if those agency records are on a nongovernmental e-mail account, a nongovernmental server, if they are in the agency director's drawer back home, they are still subject to foia. an importante ruling. i do think that is the kind of case where, it is a very good example of, should the department of justice the making those types of arguments to begin with? i think we were very troubled

actually, not just the ruling in that case, but by the arguments made by the government, and by the fact that after the district court opinion came out, the government began citing it in other foia cases for the proposition that, "we don't need to search e-mail accounts or servers or anything like that .hat are not governmental when you have a commitment to transparency, or you say you have a commitment to transparent the, i would think those are not because of arguments you would want your lawyers under your administration to be making. .> i mentioned earlier i was very interested in the case. i watched katie do a marvelous job. you have a very interesting makeup of your panel in the d.c.'s. two senior judges. providedudge that

over the panel was judged turn rumored to be a possible contender for the supreme court. edwards, one of the senior judges, and judge sentel, the other senior judge. they had done a number of foia cases. >> and what wa one was considered on the left and one was considered on the right. >> right, but generally pretty pro-transparency. judge edwards flatly told the government's attorney that he would be embarrassed to be making the argument the government was making at that case. i felt pretty good at that [laughter] point. >> i did the appellant. >> i congratulate you on winning

that. it is somewhat at variance with case thenger supreme court decided. kissinger walked away from the state department with all of his records. and with state department was sued under the freedom of information act, that state department that, we don't have us?, so why are you suing and the dissenters said you could adjust ask for the records back. and the state department did not. >> right. kissinger against the reporters committee for freedom of the press is not the ones we are most proud of. it was the central issue, how to interpret kissinger in light of the situation. that was the central issue. they distinguished it. not necessarily, i would say, very clearly.

the judge wrote a separate opinion that did not clarify matters, i would say in terms of how exactly to distinguish kissinger, but that was the central issue. >> for those of us who watched the judges very carefully for predilections and ideas, i would say the judge's concurrent opinion, which went in favor of katie's position in the case, was unhelpful because he said it leaves the door open to kissinger types of situations and a lower court should explore whether mr. holdren conceded the material over to a private server, which was the distinction that was made. go get them, he is obligated to go get them. that is what the majority said. my other favorite moment was judged sentel, who is a rather matlock type of character, who said, counsel, i think you just met yourself on

the way back from that argument. i felt pretty good for katie and that argument as well. do we have any predictions or takes on how a president trump versus a president clinton might do under foia, for example, are we equally in trouble the matter what? >> i do not think probably the short answer is yes. in part because of what i said earlier, which is, the way there is nation creep, there is a secrecy creep. it is really hard to pull back from that. i also think you are dealing with two candidates. obviously, former secretary clinton was a government official. we have some indication as to how she handled federal records. we have a record to look at. and obviously, that is not the best indication. even setting aside, regardless

of what the federal records act caused her to do what she did of the time, she was secretary of state. focusk it shows a lack of or, just that it was not a .riority for her i think -- i am being diplomatic. clearly, that was her e-mail set up, it was designed to be secret. that is why she did it. even the e-mails showed that is why she did it. you can argue about the records act and what she should have done and the bureaucracy and the sloppiness, but the original intent that from the beginning, why she set it up the way she did, was because she did not want people to see her personal information. and now look what happened. >> there is a lot of litigation involved here. intervene, but we

had to unseal some deposition any number of the foia cases against the state department that involve her e-mail are a very limited capacity. i think it is very fair to say in the same way that hillary clinton has no, there is no love lost for the media. i do not think there is love lost for foia and transparency. i think she hates hearing the word foia as much as she hates hearing the word e-mails. i had do not have high hopes that she will embrace transparency on day one of her administration. with respect to donald trump, we do not have a record of his public service. he has never been a government official before so we do not know exact a how he might treat foia -- exactly how he might treat foia. he does not seem very transparent so he does not seem to be inclined toward transparency. we do not know what it would look like. he has not spoken about foia from what we can tell on the campaign trail.

except to criticize his opponent. >> in regard to a hypothetical trump presidency, let me recall an episode from the 1960's. the supreme court case that upheld the fairness doctrine was, i think the history shows it was instigated or supported in part by the kennedy administration, a liberal democratic administration suing a radio station that broadcasted john birch type material. that is one thing a president could do, a president with hostility toward the established press, institutional press might try to stimulate private litigation against "the new york times" or others.

i hope i am not planting a suggestion in his mind. >> i don't think you need to plan one. -- i don't think you need to plant one. donald trump has threatened or sued the media dozens of times over. >> and presumably, he would be happy to finance libel litigation in the same way he is offered -- has offered to finance legal defense for anyone who roughs up a anti-trump protester. >> i think that is right. i have wrestled with this from a legal standpoint. anita, do you ever get exclusive interviews with politicians? either you have got a particular outlet they are interested in, or because you have established a rapport, you get the ability to sit down with them. well, i would say sometimes they get information, but we don't get an interview.

hillary clinton, it was 200 days and she had not been any press conferences but she did do especially during the primaries, she was very interested in doing local media. she did not do a lot of national media at all but she went into small markets or markets in the primary states and did interviews that were three minutes or whatever. and so for example, one of the papers that mcclatchy owns in columbia, south carolina got an interview. south carolina was one of the first primaries. i think -- president obama does that all the time. he looks at the map and says, this is a battleground state or states where he has a particular message and he will go in and do interviews. mostly, that is local. he has done a lot of local message and he will go in and do interviews. guest: -- he has done a lot of local media.

>> sometimes -- president bush tended to favor an interview on fox and gave exclusive access. president obama might favor a different network. >> i would definitely say that. he has talked about what newspapers and tv stations he watches and reads. he did something with espn the other day. i don't know if you side. it was a town hall with espn two days ago. not your traditional news outlet for the white house. but he watches a lot of sports and watches espn. >> so, if they can play avorites, can they disfavor journalist, can they put you outside of the room if they don't like what you have to say? let me ask the lawyers, is that constitutional? is that acceptable? >> there are different ways to approach it, but one way is to look at the standards and traditions and which room that individual is being put out of. so, for example, donald trump,

if he were to become president, would realize very quickly that excluding one particular member of the press from a weekly press briefing is not quite as easy as it is to exclude a member of the press from one of your campaign events. the white house correspondents association is the body, the independent body that selects who sits in the room and where they said. the tougher question i think on that is hypothetically, what if the word goes out to the press secretary and everyone else that this particular reporter never gets called on, or this particular reporter never gets questions answered, never gets inquiries answered. that is a much tougher question and that is a question you have experience with because he represented the "baltimore sun" in one of the only cases to address that type of retaliatory

behavior. and the decision did not turn out the way we would have wanted it to turn out. inortunately, if there is, that case, they were holding reporters, even though the governor of that state issued a memorandum saying, don't talk to these reporters. there was a wholesale ban on these reporters, like a blacklist. the court said, you don't have any special right of access to a member of the media. you do not have the right to have someone answer your questions. essentially, the fourth circuit pointed to competition among the news media. that was in a situation that involved clear evidence of retaliation. that does not apply and where you might get a closer question

on issues like that, constitutionally is when the reporter does have special rights either because, they have been credentialed or they have received embed status. something they get that gives them a special right. if it is revoked for reasons having really nothing to do with whether they followed the rules, but really has to do with their reporting, then you have an issue or a question. it is whether or not the constitution comes into play. it is the same under foia, really. those reporters have the same rights to use foia as any other member of the public. when you get into the grayer area -- >> ithe give and take. >> yeah, and we don't really talk about it very much and it is not for the reasons donald

trump says, that somebody has this story and "i'm going to hurt this publication." but sure, it happens all the time. just because they give "the new york times" something doesn't mean it will give it to anyone else. there is an interesting dynamic inside the white house right now. there are a lot of people who are credentialed and covering the white house every single day , but they are at smaller publications. there is a big discrepancy between bigger and smaller there. and so, sure, do the bigger outlets get invited to things like background briefings where they explain how president obama made a decision about, you name it, syria. then, the small nations complain all the time they are not invited because they are not big enough. they are there every single day, they are covering it. did somebody not get called on during the briefing? it happens all the time and i don't think it is sinister. i think it might be, "it is more

helpful to answer this question times" or, the "new york has more readers. it happens all the time and i do not think it is sinister. mcclatchy has more readers or "the new york times" has more readers. the question is whether donald trump would do it because i do not like that story and i will kick them out of the room. i do not think they can be kicked out that they can never have their question answered. >> katie alluded to a case we litigated in the fourth circuit and the fourth circuit did uphold and said, reporters should expect the -- if they are given favors they could be disfavored. the universe was made whole. we have a few minutes to see if there are any questions. we have some people here. >> this is for anita. could you speak about the degree