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'The New York Times,' The Unreliable Source And The Exposé That Missed The Mark

Mar 12, 2020
Originally published on March 12, 2020 11:17 am

The intriguing tale began in mid-September with an invitation for two New York Times reporters to come to the Midtown Manhattan offices of the legendary lawyer David Boies for an off-the-record session.

The two reporters — Jake Bernstein and Emily Steel — were asked to leave their phones and laptops outside the conference room. No taping.

The guest of honor: a hard-drinking, burly man who promised that he could link powerful politicians and globe-trotting luminaries to the late Jeffrey Epstein, the financier and sexual predator. Boies and another lawyer for Epstein accusers introduced the reporters to the apparent informant.

The man went by a pseudonym, Patrick Kessler, saying he feared retribution. He boasted about damning videos of prominent men at Epstein's properties. And Kessler showed the reporters, as he had the lawyers, blurry stills of what he said were men having sex with women and girls.

He claimed the men were in the top echelons of politics, finance and law. He promised proof.

But the informant appears to have been a fraud. And he has since vanished. Even so, he inspired an investigation by the Times not of Epstein, but of one of the country's most famous lawyers. In a 5,400-word expose published on Nov. 30 and an hourlong television show, the Times placed Boies at the center of a narrative that insinuates deceit and greed inside a morally corrupt legal system.

The story, the result of months of reporting by a team of four Times journalists, promised to reveal how even the lawyers representing alleged victims of sexual predators seek paydays in ways that enable powerful men to avoid accountability.

Boies says the Times account is terribly unfair. "I didn't do anything deceitful here, and there's no basis for that allegation," Boies tells NPR in December. "For them to put that in the article that is about me, without making clear that they're not making that allegation about me, it is, I think, quite misleading."

To this day, it remains unclear what the newspaper's reporting uncovered.

Boies' own actions on other matters had already tarnished his reputation. But the Times journalists acknowledge they didn't have evidence that proved Boies either acted wrongfully or intended to profit from the Epstein cases. And their chief informant for the story had lied repeatedly, the Times itself concluded.

* * *

Epstein was arrested last July on sex trafficking charges. A month later, he was found dead in his jail cell in what has been ruled a suicide.

In August, the man calling himself Patrick Kessler approached The Winchester Star in Virginia's Shenandoah Valley with the same story about Epstein's powerful friends. As captured on an audio recording, one of the Winchester reporters asked Kessler why he didn't seek out a national news outlet. Kessler said he trusted the Star because he had grown up nearby.

Reporters there soon questioned his veracity. The Star spoke to a lawyer whom Kessler claimed to have consulted. He said he hadn't heard of Kessler.

"When he did not show up a week later, I thought, 'Well, this guy's a crackpot or, you know, a fabulist,' somebody who just likes to spin stories and just wasted our time," says Winchester Star reporter Evan Goodenow. "And so I kind of dismissed it."

Just a week after that, the two Times reporters met Kessler at Boies' office.

Not even an hour after the meeting, Kessler sent a text message to Times reporter Emily Steel saying that he wanted to meet again. That afternoon, at the back of a Chinese restaurant, Kessler steered the two Times reporters, Steel and Bernstein, toward what he argued was a different scandal: the behavior of the two lawyers they had just met. Kessler alleged the attorneys wanted to turn his material to their own advantage, rather than that of their clients — the women who said they had been victimized by Epstein and his social circle.

This new direction appealed to the Times. Investigative reporter and one of the four journalists on the story Jessica Silver-Greenberg tells NPR that she had been seeking a window into "the universe of people, powerful men, that had potentially enabled Epstein and allowed him to continue to allegedly abuse women for decades."

Lawyers had helped to shield Epstein, Silver-Greenberg says, creating a financial model in which they could secure big payouts for accusers and fees for themselves from the prominent men their clients accused — but let those men keep their actions secret.

It reminded her of nondisclosure agreements in settlements of harassment claims against Hollywood producer Harvey Weinstein. Women were paid but had to keep silent, keeping the pattern of his behavior from public view. Lawyers struck similar deals for accusations against the late Roger Ailes and Bill O'Reilly, now both gone from Fox News. (Ailes, Weinstein and O'Reilly all denied those allegations.) The Times reported extensively on them all, helping to usher in the #MeToo movement.

Nondisclosure pacts are legal and even common in corporate life. Some attorneys for alleged victims say clients seek to avoid public glare. Yet NDAs are increasingly under attack. Most recently, now-former presidential candidate Mike Bloomberg announced he would release three women who filed complaints against him at Bloomberg LP from confidentiality clauses after rivals blasted him for it at a Democratic presidential debate.

"I had been looking at all this huge network of lawyers," Silver-Greenberg tells NPR, "not only in the defense attorneys who were representing Epstein, but also the attorneys that had represented the victims."

Boies stood out. He was a towering figure with an illustrious record as a litigator. He had argued the government's antitrust case against Microsoft a generation ago. He was Al Gore's go-to attorney in the 2000 election recount debacle. Boies helped persuade the U.S. Supreme Court to legalize gay marriage.

Boies also caught their attention because he represented the Hollywood producer Harvey Weinstein, accused of sexual assault or harassment by 100 women. Weinstein was convicted last month of felony sex crime and rape and sentenced Wednesday to 23 years in prison.

In Epstein's case, Boies Schiller represents several women with claims against the financier's estate and friends.

In that first meeting with the Times reporters, a second lawyer was present, by the name of Stan Pottinger. Pottinger would play an essential role in the Times' tale. He and Boies are friends; their unrelated firms represent different clients with similar accusations against Epstein and his associates. (Pottinger did not return four messages from NPR seeking comment.) Though he is not nearly as prominent as Boies, Pottinger was a Justice Department official under President Ford and dated Gloria Steinem in the 1970s and 1980s. He is now at Edwards Pottinger.

Kessler promised the reporters a window into how the lawyers operated.

Kessler shared with the Times texts that Pottinger had sent in which he had drawn up a "hot list" of prominent men as possible targets. Boies was not copied on the exchanges.

The Times wrote, "It seemed [to Kessler] like Mr. Boies and Mr. Pottinger were plotting to use his footage to demand huge sums from billionaires. He said it looked like blackmail."

Pottinger suggested in his texts that lawyers could make up to 40% of the money they negotiated in private settlements. Pottinger confirmed the texts were authentic, the paper reported. Pottinger said he had been deceiving Kessler to get him to share what videos and other documentation he had against Epstein's friends. Pottinger also told the paper he informed the FBI and a federal prosecutor about the material Kessler claimed to have.

Emails between Boies and Times reporters show him wrestling over whether to trust Kessler, hoping but not certain the informant was real.

The Times concluded that Boies had outsourced his relationship with Kessler to Pottinger and that the lawyers were working in concert. The Times used Kessler's communications with Pottinger to convey a story of hypocrisy and greed about Boies as well.

* * *

Here's the defining passage of the article:

"Mr. Boies and Mr. Pottinger would go from toasting Kessler as their 'whistle-blower' and 'informant' to torching him as a 'fraudster' and a 'spy.'

"Kessler was a liar, and he wouldn't expose any sexual abuse.

"But he would reveal something else: The extraordinary, at times deceitful measures elite lawyers deployed in an effort to get evidence that could be used to win lucrative settlements — and keep misconduct hidden, allowing perpetrators to abuse again.

"Mr. Boies has publicly decried such deals as 'rich man's justice,' a way that powerful men buy their way out of legal and reputational jeopardy. This is how it works."

David Enrich, a Times business editor who helped to report the story, tells NPR, "Our obligation is to be truthful and as transparent as possible and to tell the truth to our readers as best we can."

In November, video cameras captured a tense moment for the Times television show The Weekly. Reporter Silver-Greenberg and Enrich confronted Boies with the encrypted texts between Pottinger and Kessler, prompted by Kessler's questions of how they could make money.

In their joint interview with NPR, the two Times journalists say they believe Boies was genuinely aghast at the texts they showed him.

"He was visibly surprised to see them and I think visibly upset to see them," Enrich tells NPR. "So I don't think he knew. ... He said that he did not intend to do what Stan Pottinger says they were discussing doing. And I can give him the benefit of the doubt on that. "

The Times article nonetheless suggests Boies was a willing part of a larger effort to extract large sums of money in settlements from powerful men.

"What I think is not fair journalism is to somehow imply I was involved in what was being discussed when the Times knows, and has acknowledged, that I didn't even know about those text messages until they showed them to me," Boies tells NPR. He says he is being tarred by the newspaper's conclusions over his friend's texts.

"I didn't participate in them. I didn't know about them at the time that they were done," Boies says.

He says his retention agreements with Epstein's accusers allow him only to recoup costs and expenses, not fees from such settlements. NPR has reviewed the agreements, confirmed also by one of his clients. A foundation Boies discussed with Enrich would not have benefited him, Boies says.

"As the Times knows, we were not going to make any money out of these cases," Boies says.

The Times team does not fundamentally dispute that contention; its article noted in passing that Boies was working pro bono — without payment. Even so, Enrich and Silver-Greenberg argue Boies remains a key player.

"I don't think it matters whether or not David Boies is going to get rich off these settlements," Silver-Greenberg says. "Burying that information [of sexual assault or misconduct], making it disappear, and letting some of the world's richest, most powerful men off the hook through these legal settlements is the issue."

* * *

Though Boies had built up a distinguished legal record stretching back more than a half-century, he damaged that reputation badly in two recent episodes, one of which involved the Times directly.

Boies earned sharp criticism for his close ties to Theranos, a blood testing startup that collapsed under accusations of fraud. Its founder now faces federal criminal charges. Boies served as an outside lawyer and a corporate director. The former Wall Street Journal reporter who exposed the fraud, John Carreyrou, has said Boies' firm acted to intimidate whistleblowers. Boies denies that.

In recent years, Boies' firm did legal defense work for the Times. Then, in late 2017, the newspaper fired Boies Schiller Flexner over revelations he hired a private firm run by former Israeli spies for Harvey Weinstein. As The New Yorker first reported, that firm sought to intimidate the Times' sources and even tailed its reporters. Boies says he was unaware of the extent of the firm's work.

The Times implied Boies took on the Epstein cases to help restore his reputation: "By 2019, Mr. Boies, 78, was representing a number of Mr. Epstein's alleged victims."

Boies says he represented his first alleged Epstein victim in 2015, before Theranos became a scandal, and added others subsequently.

"I think it's fair to say that [Boies'] representation of Epstein victims has helped him burnish his reputation when he needed it the most," Silver-Greenberg says.

* * *

The Times has its own checkered backstory in covering Epstein.

Epstein was first convicted in a Florida state court of a sex crime involving a minor in 2008. After his release from prison, Epstein still held significant sway in New York City, hosting titans of finance, politics, media, academia and high society. He hosted parties at a townhouse that was reportedly the largest in Manhattan. Even so, the Times wrote about Epstein sparingly, and, when it did, even admiringly.

One financial reporter who kept tabs on Epstein for the Times wrote a gauzy profile of him that ran just before Epstein was set to enter prison in 2008. Reporter Landon Thomas Jr. mostly portrayed the offense as patronizing prostitutes rather than highlighting it as a crime involving a minor.

In the summer of 2018, Thomas refused an assignment to call Epstein on a story, citing a conflict. At his request, the financier had made a $30,000 donation to a Harlem cultural center. Enrich, Thomas' editor, ordered him not to write about Epstein again. Thomas was forced to leave the paper at the start of 2019. Enrich says the Times should have told readers about the episode, which the paper has never done.

The Miami Herald's Julie K. Brown broke the story open in November 2018 by chronicling accusations against Epstein and the failures of major institutions to hold him accountable. Brown says the press is among those institutions. Boies cites the press' failings too.

"We filed our first [Epstein] case in 2015. We filed a second case in 2016. And in 2016 we tried to get the Times to write about this," Boies says. "Until July [2019], the Times showed no interest at all in Epstein's victims or in the scope and scale of Epstein's sex trafficking, or even in the fact that the sex trafficking was going on."

Enrich doesn't flinch at the criticism.

"I think that we missed the ball on the Epstein coverage," says Enrich, who joined the paper in 2017 and is now its business investigations editor. "I am really disappointed in myself and The New York Times for not having responded as forcefully and as quickly and as aggressively as we should have."

The Times intensified its Epstein coverage after a grand jury handed up indictments against him on more serious charges of sex crimes against minors last summer.

The Times was also slow to cover developments involving Joichi Ito, then director of the MIT Media Lab. Ito resigned from the New York Times Co. board and the Massachusetts Institute of Technology last September as his ties to Epstein came into focus. Ito had solicited contributions for the lab and his own venture fund from Epstein years after the financier's conviction for crimes involving sex with underage teenagers.

The Times journalists wrote that their report lays bare how "powerful men buy their way out of legal and reputational jeopardy."

And in interviews, they say their reporting did so in a transparent way, acknowledging false starts and unanswered questions. Their lengthy interview with NPR about the story is part of that transparency, they say.

"This is one of the pieces of journalism — both The Weekly [television show] and the article — that I'm most proud of," Silver-Greenberg says. "And I'm proud of us for showing our process in this."

* * *

And what about the man who called himself Patrick Kessler?

He told the lawyers and the Times reporters that he had material implicating former Israeli Prime Minister Ehud Barak, Britain's Prince Andrew and Harvard Law professor emeritus Alan Dershowitz, who had been a legal adviser for Epstein and served on President Trump's legal team during the Senate impeachment trial. (All have denied any impropriety.)

Times reporters spoke with Kessler repeatedly. One session stretched over eight hours at a Washington hotel conference room and involved two bottles of Japanese whisky, according to the paper.

The Times sought without luck to substantiate Kessler's claims last fall; online searches easily pulled up his supposedly classified documents; a coffee company denied any knowledge of him as an investor; he frequently contradicted his own assertions. (NPR unsuccessfully sought to reach Kessler on a mobile phone number he had used in the past. A message left with a man who said he knew him was not returned.)

Most important, Kessler failed to deliver any proof of his claims. On the Times show The Weekly, business editor Ellen Pollock describes awaiting delivery of Epstein's computer servers in October from Iceland. The grandiose promise collapsed with Kessler texting about a fire, a missing team member and his own desperate flight to Kyiv.

The Times team never saw Kessler again.

"He didn't even ask for money to be fronted to him," Boies says. "When you conclude a fraud has been committed, the question is, why? He's unlikely to be doing that entirely on his own."

The Times article contains the hint of a question: Was he sent to discredit Boies and Pottinger? And by whom?

The Times' Enrich says the paper's reporters continuously hunted Kessler — even after publishing. What was he? A scam artist? An extortionist? A plant? They don't know.

"There is not a day in those three months, including weekends, that we were not trying to figure out who Patrick Kessler is, what he actually has, where he comes from, why he's doing this," Enrich says.

The Times journalists say they never thought to wait to publish until they unraveled the secret of Patrick Kessler. They tenaciously held onto the story they sought to tell, as twisty as it turned out to be, alerted to the path by a patently unreliable guide.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

DAVID GREENE, HOST:

Jeffrey Epstein's sex-trafficking scandal did not end with his death. The story keeps evolving. And we're going to hear now how one newspaper came to question the ethics of one of America's most powerful lawyers. Relying on an informant who later disappeared, The New York Times launched an investigation into attorney David Boies, who represents some of Epstein's alleged victims. NPR media correspondent David Folkenflik looks at the story behind the story.

DAVID FOLKENFLIK, BYLINE: Initially, everyone was hungry for material about Epstein. After all, Epstein had ties to so many powerful men. The informant went by the pseudonym Patrick Kessler. He claimed he had been an IT consultant for Epstein.

DAVID ENRICH: He also claimed to have not just videos but all sorts of electronic communications and bank records and things like that.

FOLKENFLIK: David Enrich is the business investigative editor for The New York Times.

ENRICH: They had provided this supposedly unvarnished, very detailed inside look inside of Jeffrey Epstein's life and finances.

FOLKENFLIK: Kessler provided tantalizing allegations about Epstein's famous friends when he met with reporters for the first time - at David Boies' office. An hour later, the story would completely change. Kessler texted a Times reporter separately. They met in the back of a Chinese restaurant later that afternoon.

Here, reporters Emily Steel and Jake Bernstein on the Times TV show "The Weekly."

(SOUNDBITE OF TV SHOW, "THE WEEKLY")

EMILY STEEL: But then he told us something else, and this was about the lawyers.

JAKE BERNSTEIN: He said, what do you think of David Boies?

FOLKENFLIK: New York Times investigative reporter Jessica Silver-Greenberg was part of the team. She had been thinking hard about the lawyers circling the Epstein scandal.

JESSICA SILVER-GREENBERG: We were intensely interested in the universe of people - powerful men - that had potentially enabled Epstein and allowed him to continue to allegedly abuse women for decades.

FOLKENFLIK: Silver-Greenberg tells NPR that some lawyers representing Epstein's accusers were enablers, too. Boies was prominent among the lawyers for Epstein's alleged victims, and Silver-Greenberg says he was already on her radar. The Times had big ambitions and high hopes for the story.

Again, Emily Steel on the Times TV show.

(SOUNDBITE OF TV SHOW, "THE WEEKLY")

STEEL: If true, this not only could crack open the Epstein story, but it also might expose how two of America's most prominent lawyers were talking about plans that would keep evidence of abuse secret.

FOLKENFLIK: The two lawyers they focused on were David Boies and his friend Stan Pottinger. Pottinger exchanged text messages with Kessler, the supposed informant. In those texts, published by the Times, Pottinger tells Kessler, lawyers could get the friends of Epstein who were supposedly on the videos to pay big settlements, accusations of sexual misconduct could be kept secret and the lawyers could get hefty payouts. On the Times TV show, Enrich presses Boies about the texts.

(SOUNDBITE OF TV SHOW, "THE WEEKLY")

ENRICH: But listen - we're trying to understand if there's a way to interpret this other than the way that it looks to us.

DAVID BOIES: And what I'm saying is that these aren't my text messages. OK?

FOLKENFLIK: Boies says he had no idea what Pottinger was telling Kessler. Enrich tells me he thinks that's true - that Boies had no idea what was in the texts.

ENRICH: He was visibly surprised to see them and, I think, visibly upset to see them. He says that he did not intend to do what Stan Pottinger said they were discussing doing. And I think I can give him the benefit of the doubt on that.

FOLKENFLIK: Pottinger told the Times, even those hypothetical scenarios were made up. He told the paper he was trying to get Kessler to share his material and that he informed the FBI of Kessler's claims. None of this stopped The New York Times from doing the story or from focusing it largely on Boies. It ultimately devoted 5,400 words and an hourlong TV show to its expose. The reporters relied on Kessler, the informant, to generate a tale of deceit, greed and complicity, even though they concluded Kessler was a liar and though they failed to connect Boies directly to wrongdoing.

BOIES: What I think is not fair journalism is to somehow imply I was involved in what was being discussed, when the Times knows and has acknowledged that I didn't even know about those text messages until they showed them to me.

FOLKENFLIK: NPR sought comment from Pottinger four times without success. David Boies tells NPR the Times wrongly folds him into suggestions of blackmail and fraud.

BOIES: And while it is true that the Times doesn't explicitly say I was deceitful, for them to put that in the article that is about me without making clear that they're not making that allegation about me is, I think, quite misleading.

FOLKENFLIK: The Times reporters concede they have no evidence Boies sought to profit. Now they tell me that doesn't matter. They say their story shows what plaintiffs' lawyers are doing when they think no one is looking. And let's pause to acknowledge why the Times found Boies newsworthy. Again, Emily Steel and David Enrich of the Times on the TV show "The Weekly."

(SOUNDBITE OF TV SHOW, "THE WEEKLY")

STEEL: For a while, he was kind of lauded as the modern-day Atticus Finch.

ENRICH: Litigating some of the country's most famous cases, whether it's Bush v. Gore or the Microsoft antitrust case or gay marriage before the Supreme Court.

FOLKENFLIK: David Boies is a legal legend but a damaged one, thanks to his involvement in a pair of scandals - first, the fraudulent blood-testing company Theranos, where Boies served both as an outside lawyer and a corporate director. Second, Boies was a lawyer for the disgraced producer Harvey Weinstein. He hired ex-spies for Weinstein who monitored and misled reporters for the Times. Those scandals fueled the Times' interest in Boies.

And what of Kessler? Who was he - a scam artist, an extortionist, a plant designed to discredit the lawyers? The Times journalists say they tried in vain to figure out who he was but never thought to hold off until they did. Despite that question mark, they wouldn't let the story go, even though their chief source turned out to be, in their own words, a liar.

David Folkenflik, NPR News, New York. Transcript provided by NPR, Copyright NPR.