The New York Times today has a big story about junior New York Senator Kirsten Gillibrand that suffers from tunnel vision. The article, written by Raymond Hernandez and David Kocieniewski, concerns Gillibrand’s stint in the mid-’90s as a lawyer in the firm Davis Polk, where she was part of a team that defended tobacco giant Philip Morris. But the reporters go awry when they try to shoehorn the story into a predetermined narrative. Their piece is presented as a straight news story, but is cluttered with loaded statements that betray an overinflated thesis—that Gillibrand hasn’t fully copped to a significant skeleton in her closet.
Here’s how the Times lays out the story:
Now in the Senate seat formerly held by Hillary Rodham Clinton, Ms. Gillibrand plays down her work as a lawyer representing Philip Morris, saying she was a junior associate with little control over the cases she was handed and limited involvement in defending the tobacco maker.But a review of thousands of documents and interviews with dozens of lawyers and industry experts indicate that Ms. Gillibrand was involved in some of the most sensitive matters related to the defense of the tobacco giant as it confronted pivotal legal battles beginning in the mid-1990s.
The article, entitled “As a Young Lawyer, Gillibrand Defended Big Tobacco,” continues on to detail the various tasks that Gillibrand performed and responsibilities that she assumed as a newish associate at Davis Polk. Some details are more damning (she sat on the Philip Morris Crime Fraud Issues Committee, which dealt with legal issues surrounding the disclosure of the company’s documents) and others less so (she was “also schooled in some of the chemistry of cigarettes”).
Gillibrand apparently had agreed to be interviewed by the Times, but then canceled through her spokesman, “who said that focusing on Philip Morris would not reflect the range of her work as a lawyer, which also included representing pro bono clients, including abused women and families contending with lead paint in their homes.”
Sure, this is PR speak that seeks to underplay Gillibrand’s involvement with big tobacco. But there are some legitimate reasons why Gillibrand wouldn’t want to be defined by her role in defending an exceedingly unpopular client. For one, it was a job early in her career, and who doesn’t have some things on their resume that, in hindsight, are less than ideal? Also, it’s not surprising that a legislator who practiced law would have worked with clients on the more distasteful side of the spectrum, as the Times acknowledges 600 or so words into its article: “Of course, many lawyers, including some who now serve in the Senate, have defended unpopular clients.”
Despite that admission (and the statement from University of Chicago law professor Todd Henderson that it would be unfair to assess lawyers by whom they represent, that “nobody would want to live in a world in which lawyers are judged by the clients they take”), the Times piece seems determined to overplay the Gillibrand-Defended-Big-Tobacco theme.
Take these statements that are meant to show the extent of her involvement with Philip Morris, but which instead seem merely to describe Gillibrand’s work ethic or personality as a young lawyer:
But those who recall Ms. Gillibrand’s days as a young lawyer say she was capable and eager as she plunged into the high-stakes and lucrative world of tobacco defense work.
Likewise with this opinion from a former colleague:
although Ms. Gillibrand had less experience and stature than other lawyers…she was assertive, deeply involved and very effective in advocating on behalf of Philip Morris.
“Capable and eager.” “Very effective.” That does sound suspicious. Probably no up-and-comers in the Times’s newsroom who demonstrate such character traits.
Beyond this, though, the story creates opportunities to imply unsavory things. For instance, the reporters note that Gillibrand represented Davis Polk “on a high-level Philip Morris committee whose work included shielding certain documents from disclosure,” but this fact seems designed to allow the reporters to remind us (as they do again later) that Gillibrand worked “alongside some of the country’s top tobacco industry lawyers.”
Similarly, the article notes that Gillibrand was “one of five” Davis Polk lawyers designated to train Philip Morris employees about “sensitive legal issues.” But again, Gillibrand’s scarlet A is more reductively illustrated by the assertion that “she was viewed so positively by Philip Morris”—that’s the more sordid detail, if you will.
In other words, the reporters bolster the details they uncovered through document reviews and interviews with statements that suggest an understanding of Gillibrand’s motivations while at Davis Polk—and those serve as a detriment to the researched facts that the story presents.
If the object in Gillibrand’s rearview mirror is in fact larger than it appears, then such guilt-by-association tactics—effectively conflating the actions of a young, ambitious lawyer with the un-provable desire to defend an unsavory corporate client—are not the way to do it. The Times story seems to hinge on the fact that this previous employment is politically inconvenient for Gillibrand, who will defend her Senate seat next year—and builds a character portrait that exceeds the facts on display.

You assert that "there are some legitimate reasons why Gillibrand wouldn’t want to be defined by her role in defending an exceedingly unpopular client. For one, it was a job early in her career, and who doesn’t have some things on their resume that, in hindsight, are less than ideal?"
This statement paints with a broad brush an issue that deserves much deeper scrutiny than you give it.
First, as the Times makes clear with hard facts, Senator Gillbrand represented the world's leading cigarette company for several years. That's meaningful.
Second, and perhaps more important, Kirsten Gillibrand had a choice. You selectively quoted only part of a key passage from the Times, which wrote: “Of course, many lawyers, including some who now serve in the Senate, have defended unpopular clients. Still, in an approach that was not uncommon at law firms that represented tobacco companies, lawyers at Davis Polk were permitted to decline work on the tobacco cases if they had a moral or ethical objection to the work.”
Again, Kirsten Gillibrand had a choice. The Times asked whether she had any misgivings about representing Big Tobacco. She declined to be interviewed, and her spokesman dodged the question. She is either ashamed of what she did, afraid that most people recognize that it was unsavory and/or worried that if she may have to explain why she still accepts a lot of campaign money from Big Tobacco.
#1 Posted by Tina Komers, CJR on Sat 28 Mar 2009 at 04:16 PM
You assert that "there are some legitimate reasons why Gillibrand wouldn’t want to be defined by her role in defending an exceedingly unpopular client. For one, it was a job early in her career, and who doesn’t have some things on their resume that, in hindsight, are less than ideal?"
This statement paints with a broad brush an issue that deserves much deeper scrutiny than you give it.
First, as the Times makes clear with hard facts, Senator Gillbrand represented the world's leading cigarette company for several years. That's meaningful.
Second, and perhaps more important, Kirsten Gillibrand had a choice. You selectively quoted only part of a key passage from the Times, which wrote: “Of course, many lawyers, including some who now serve in the Senate, have defended unpopular clients. Still, in an approach that was not uncommon at law firms that represented tobacco companies, lawyers at Davis Polk were permitted to decline work on the tobacco cases if they had a moral or ethical objection to the work.”
Again, Kirsten Gillibrand had a choice. The Times asked whether she had any misgivings about representing Big Tobacco. She declined to be interviewed, and her spokesman dodged the question. She is either ashamed of what she did, afraid that most people recognize that it was unsavory and/or worried that if she may have to explain why she still accepts a lot of campaign money from Big Tobacco.
#2 Posted by Tina Komers, CJR on Sat 28 Mar 2009 at 04:20 PM
So, the NYT is looking towards the 2010 Dem primary. Guess who they want to win that one? Count the favorable Andrew Cuomo stories and the unfavorable Kirsten Gillibrand ones..........see who comes out ahead. They're really being fairly obvious on this matter.
#3 Posted by bb, CJR on Sat 28 Mar 2009 at 09:36 PM
Dear Ms. Kim:
Given the amount of ghost advocate e-ink generated by PR flacks online, it would be useful if you could provide ANY biographical information about yourself, including full disclosure of any internships, interests, conflicts, etc., that might be material to your remarkable op-ed. As it happens, (and, as Tina Komers, who demonstrates lucid reasoning in her response, infers,) we all have choices. Posting CJR staff biographies would be the professional thing to do in any event.
#4 Posted by David St.-Lascaux, CJR on Sun 29 Mar 2009 at 07:24 PM
I think you hit the nail on the head with this one. I'm no supporter of my new senator but thought the Times article/editorial was despicable on two counts. Firstly, it was, as you say, loaded with words and phrases making it clear that the reporters thought she had done something wrong. The story strayed far from the concept of allowing the reader to make his or her own decision after reading the facts that the reporters had done an admirable job in gathering. Secondly, I (and I realize this is arguable) really do believe that any defendant is entitled to an excellent defense and see nothing objectionable in Ms. Gillibrand having represented her client effectively. There was nothing in the story to suggest that she stepped over any ethical boundary in her representation of Phillip Morris.
#5 Posted by Jerry, CJR on Mon 30 Mar 2009 at 06:21 PM