Eric Holder vs the media: What is ‘off the record’?

Olivier Knox
The Ticket
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Major news outlets like The New York Times, The Associated Press, Reuters and others turned down Attorney General Eric Holder’s invitation to meet with him on Thursday, because the talks would be “off the record.”

Everyone knows somebody who is always starting sentences with “for the record,” like a narcissistic nod to a cosmic stenographer chronicling their every move. But just what does “off the record” mean? Is it always bad? Who are those unnamed "senior administration officials" you read so much about? And how can you sound smart at the bar if you’re unlucky enough to be trapped in a discussion of Beltway media jargon?

First, a bit of background: Holder called major outlets to come discuss the Justice Department’s handling of national security leaks. The invitation followed disclosures that the department had seized reporters’ telephone and email records and had even suggested one journalist, James Rosen of Fox News, had acted like a spy by doing his job.

But there was a catch: Holder said the details of the meeting would be “off the record”—could not be reported. Some rejected the overture, essentially arguing that the public should know what Holder had to say. (Yahoo News partner ABC News accepted his invitation.) Under heavy pressure, Holder relaxed the requirement enough to let those who attended describe in general terms what took place.

But anyone not steeped in reportorial jargon might be confused by how such ground rules are set. Since the Holder-media talks are sure to continue and because the issue is linked to the way reporters protect the identity of whistle-blowers, it’s worth giving the matter a second look.

Yahoo News reached out to a handful of reporters—including two who endured furious disputes with more than one White House over the definition of “off the record”—as well as some respected communications aides of both parties. These “hacks and flacks” offered guidance through this frequently murky terrain.

CNN's Jake Tapper summed up the broad consensus. "What I do is—before I agree to go on background, or deep background, or off the record—I clarify what that means to the person with whom I'm speaking," he said. "I don't want any misunderstandings."

Tapper's point is vital, because there are no official definitions, no universally accepted rules, that govern what is essentially a negotiation between an individual source and an individual reporter.

Why does it matter? Reporters want to inform their audience, and to do so they need to be informed themselves—and to do that they generally need to build trust with their sources. If you quote Official A by name as saying His Boss is screwing something up —after you agreed to cite Official A only as "person close to His Boss"—that person is unlikely to talk to you again. The same goes, or should go, for sources who deliberately mislead reporters.

Two flacks who disagree on most issues—Tommy Vietor, former spokesman for President Barack Obama's National Security Council, and Don Stewart, communications director for Republican Senate Minority Leader Mitch McConnell—agree on how they define the unofficial rules.

Two reporters—Washington Post columnist Dana Milbank, who clashed with then-President George W. Bush's White House, and Michael Hastings, whose name still makes Obama aides grind their teeth—agreed on their view of the rules. (More on the heartburn Milbank and Hastings gave officials a bit below.)

What is 'on the record'?

Vietor: "'On the record' means you will be quoted by name and title. Tommy Vietor said X."

Stewart: "'On the record' is fairly obvious. The information and quotes can be used and cited to the person by name."

What is 'on background'? This is where "senior administration officials" are made and where the true silliness starts.

Milbank: The reporter "can attribute to agreed-upon anonymous title."

Stewart: "'Background' is one that requires a little nuance. At bottom, it means the information can be used and even quoted, but not attributed directly to the source. This is where people sometimes run into misunderstandings as many reporters believe background to mean that the info/quotes can be attributed to the person’s organization ('said a spokesman for Sen. Jones' or 'according to Sen. Jones’ staff') when sometimes the spokesman would prefer 'House leadership aide' or an 'industry spokesman.' That’s why it’s important to nail that down upfront—before the conversation."

Vietor: "'On background' means different things to different reporters. At the White House, some reporters interpreted on background as meaning they could quote me as a 'White House official' while others took it as 'senior administration official.' It seems minor, but there is actually an enormous difference between the two—the former is a small group while the latter is hundreds of people (depending on how loosely you define 'senior')."

Yahoo News note: As a White House correspondent, I tried to limit "senior administration official" to someone who regularly met with, or briefed, the president on policy.

It will surprise no one that these terms are often abused. When Bush went overseas, his communications shop regularly brought along "senior administration officials" to brief reporters on official U.S. policy. Those officials would later go before the TV cameras and give the exact same information, often with the exact same wording.

One senior Bush aide was famous for insisting on anonymity before piously telling reporters that, behind closed doors, the president was calm, resolute, determined, loves America, etc.

In the 2004 election, The New York Times let an anonymous Bush supporter mock Democratic presidential candidate John Kerry, saying he "looks French." In February 2007, Vice President Dick Cheney made an unannounced trip to Pakistan and Afghanistan. On the way home, a senior administration official speaking on condition of anonymity told reporters, Cheney discussed the trip's purpose extensively—and entirely in the first person.

The practice hasn't changed much under Obama. But his team frequently releases even the most routine information on the condition that it be sourced to "a White House official." No name, no title. This can result in laugh-out-loud reports. Consider a recent example, drawn from the response to the devastating tornado in Oklahoma:

"The Administration continues to urge all those in affected or potentially affected areas to follow the direction of state and local officials as this severe weather continues," a White House official said on condition of anonymity.

One solution: Source official policy to "the White House." For background briefings, let the setting speak for itself: "Senior officials said at an official briefing for reporters to deliver the official message on Topic X."

What is 'deep background'?

Stewart: "'Deep background' means the information can be used but not attributed to the individual or her organization. There can be nothing linking the information to the source."

Vietor: "This term is meaningless. Some people think 'deep background' means that the information is usable but not quotable. Others think it means the information is usable from 'a source with knowledge' or some other utterly vague description. I recommend everyone just avoid it all together."

Milbank: When you get information, you "can use it without attribution or quotation."

In practice, this sometimes becomes "officials said." It's several steps removed from where officials might be held accountable for what they say.

What is 'off the record'?

Milbank: "You can't use it, but you can use the knowledge to try to get information from a different source."

Vietor: "'Off the record' should mean that the reporter cannot use the information in his article. That said, reporters who want to use something you say 'off the record' will call around and try to get someone else to confirm it."

Stewart: "'Off the record' means information can be used by the reporter to find their own information, but cannot be reported or sourced on its own."

That seems awfully straightforward. You can take what Official X told you off the record and call Official Y to try to get that information confirmed. Otherwise, you can't use it.

In practice, though, "off the record" informs a lot of reporting.

Bush and Obama have held off-the-record sessions with reporters. Network news anchors and other top journalists are often invited to off-the-record meetings with the president right before the State of the Union or other major speeches. The journalists then relay the information obtained at those meetings under the guise of their own shrewd political instincts. Op-ed columnists, pundits and outlets seen as sympathetic to a president's arguments are are often summoned to privileged off-the-record briefings.

In at least one history-making precedent, then-President Gerald Ford held regular off-the-record conversations with reporter Tom DeFrank—on condition that they not be published until after Ford's death.

Sensitive logistical information—like White House travel arrangements, particularly to sensitive destinations—is often off the record. I've been on at least three overseas trips where a condition of being part of the voyage was agreeing to inform only his spouse and one editor beforehand.

Just to muddy the waters a little more, a campaign-trail "OTR" (off the record) is an unannounced stop by the candidate. But what she or he says is on the record.

"People usually have different understandings of these ideas, so it's good to have a long and thoughtful talk with your interview subject before proceeding about the ground rules they are comfortable with," Hastings said.

"I prefer to avoid all these in my columns and tell people it's either for attribution or not for attribution, i.e., I'll use the info but in my own voice," Milbank said.

If this is so easy, how did Milbank and Hastings get into trouble with two different presidents? In much the same way, about a decade apart.

In August 2003, Milbank wrote a detailed account of an off-the-record barbecue on Bush's ranch. Sample sentence: "In a gesture that vastly raised the journalists' assessment of Bush, the teetotaling president arranged for them to be served beer from coolers and Australian (read: not French) red wine." Bush aides were furious, judging that Milbank should not have reported any part of the event.

Hastings, in turn, disclosed that Obama had joined an off-the-record drinks session with reporters at a Florida hotel bar during the 2012 campaign. Obama aides insisted that the very existence of the get-together was off the record (though I was merely told the goings-on at the event were off-limits). They still bristle at the mention of what one jokingly dubbed "the Battle of Hastings."

By this point, you may be wondering why this matters, notably in the case of Eric Holder vs. the media.

Hastings has one explanation.

"If the government can spy, eavesdrop, and review the electronic communications of investigative journalists, then they are totally undermining the ability for journalists to make these kinds of good faith agreements that have been the bedrock of modern investigative journalism," he said by email. "If Nixon could have just legally spied on Woodward with the FBI, as Obama/Holder have done to Fox and the AP, Nixon wouldn't have needed his 'Plumbers.'"

Independent national security writer Marcy Wheeler warns that "off the record" "makes it a lot harder to hold the Admin(istration) accountable. I pointed out that it seems DOJ intends only to redefine things, while still using the same aggressive tactics. Given that no one can quote this as an official proposal, it makes it harder to push back against."

In principle, every reporter-source exchange is assumed to be on the record unless explicitly otherwise agreed to by both sides. In practice, though, reporters and sources sometimes build relationships in which that’s not the case.

If I were to disclose the content of my exchanges, you’d mostly learn that one former Republican aide quipped that I was an “evil, no-good Froggy scribbler” (from my days at Agence France-Presse), and that an Obama aide once greeted me on the telephone with a sarcastic but not mean-spirited “what do you want, you incredibly annoying Frenchie pain in my ass?” And a long conversation at a bar in Waco with one of my favorite sources could have resulted in a lengthy account of that person’s romantic frustrations, who should get the credit for NAFTA and what the Franco-U.S. relationship was and ought to be.

Obviously, how to apply these rules, and when, and to whom, is open for extensive debate.

And the perfect venue for that discussion is just a short stroll from the White House.