The Media Today

Trump, Weinstein, and the court of public opinion

April 29, 2024
Harvey Weinstein leaves court on January 14, during jury selection in his trial on rape and sexual assault charges. AP Photo/Mary Altaffer

In 2018, I wrote for CJR about what Jim Rutenberg, then the media columnist at the New York Times, described as “the hot new media real estate trend: Trump adjacency.” I focused on two stories that, perhaps for the first time since Trump became president, had managed to loosen his boa constrictor–like grip on the news cycle while still being “tied inextricably to the president’s personal conduct and maverick political style.” One of these was the reckoning that stemmed from the sexual abuse allegations against Harvey Weinstein—a huge story in its own right, but one that also echoed unresolved abuse allegations against Trump. News stories about Weinstein, Rutenberg told me at the time, “tapped into a swell of anger among American women…that the charges about Trump and women didn’t matter to voters.”

Fast-forward six years, and the Weinstein and Trump stories are adjacent again. Last week, New York’s highest court overturned a rape conviction that prosecutors in the state obtained against Weinstein in 2020. (He has also been convicted in California, and is likely to remain behind bars for now.) The decision came down as Trump himself was in court in New York, over “hush money” payments that Michael Cohen, his fixer, paid to the adult-film star Stormy Daniels in the run-up to the 2016 election to silence her claims of an affair. “I can’t describe how surreal it is to learn this news while waiting for Donald Trump to walk into the courtroom and sit down in the exact spot Harvey Weinstein was when he was convicted and sentenced to 23 years in prison,” Molly Crane-Newman, a courts reporter at the New York Daily News, wrote on X.

More than just being adjacent, the latest Weinstein and Trump stories are connected—or at least, they might be. Weinstein’s conviction was thrown out on essentially procedural grounds after the court ruled that the judge in his trial erred in allowing testimony that established a pattern of alleged abuse on Weinstein’s part but went beyond the comparatively narrow legal case at issue. As The New Yorker’s Ronan Farrow, who was among the reporters to break open the Weinstein scandal back in 2017, wrote last week, the judge in Trump’s hush money case has also allowed testimony that establishes a pattern of conduct beyond the precise charges. That case, Farrow writes, could now be drawn “into the thicket of legal questions” that felled the Weinstein verdict.

As Farrow and others have noted, the two situations are not identical: the judge in the Trump case has been relatively cautious, not least in limiting jurors’ exposure to claims of sexual misconduct against Trump. Still, there are other links between the two stories that transcend their legal similarities and renewed adjacency in the news cycle. Both centrally involve the news media, albeit in very different ways; if textbook accountability reporting set the stage for Weinstein’s convictions, in the Trump trial, journalism of a much grubbier nature has been central to establishing the very pattern of conduct that is essential context for the Daniels payoff. And if, as I wrote following Weinstein’s conviction in 2020, that story illuminated the messy relationship between the court of public opinion and actual court—a conclusion that, if anything, has only been reinforced by last week’s reversal—it would perhaps be an understatement to draw a similar conclusion about Trump’s legal cases, not only in New York, but across the map.

Public opinion—and the media’s role in shaping it—was at least the key theme as Trump’s trial kicked off in earnest last week. Prosecutors called as their first witness David Pecker, the former National Enquirer publisher who, across several days of testimony, laid out how the tabloid came to “catch and kill” embarrassing stories on Trump’s behalf, paying sources for the rights to them so as to ensure they’d never see the light of day. The Enquirer did not ultimately pay Daniels for her story, but it did buy stories from Karen McDougal, a former Playboy model who also claimed to have had an affair with Trump, and a doorman at a Trump-run property who alleged that Trump fathered a child out of wedlock. Many of the details of this scheme were already well-documented. (Simon V.Z. Wood dug deep into the Enquirer’s side of the story in a 2019 feature for CJR that, among many other things, mentioned Farrow’s past reporting that Dylan Howard, a former Enquirer editor, once discredited an alleged victim of Weinstein’s on the latter’s behalf. Howard has minimized his role in this; in one interview, he described the idea that he “enabled” Weinstein as “absolute frog shit.”)

Still, aspects of Pecker’s testimony were striking—he said, for example, that the Enquirer paid the doorman even after its reporters established that his story was likely nonsensenot to mention potentially damaging for Trump; Pecker insisted that the catch-and-kill scheme was in service of Trump’s election campaign and not, as Trump’s lawyers argue, a means of protecting his family, a key tenet of the criminal charges in the case (which revolve, essentially, around false record-keeping to conceal election interference). And media reporters, in particular, feasted on Pecker’s firsthand account of the Enquirer’s ethics, or total lack thereof. “Even by National Enquirer standards,” Pecker’s testimony “revealed an astonishing level of corruption at America’s best-known tabloid and may one day be seen as the moment it effectively died,” David Bauder wrote for the Associated Press. “I knew the National Enquirer was slimy,” Kelly McBride, a media ethics expert at Poynter, told NBC. “But I didn’t know they were this slimy.”

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If the Enquirer was never likely to win any ethics prizes, it has had some real scoops in its time; back in 2019, Wood argued for CJR that the real shame of the magazine’s Trump entanglement wasn’t so much the regrettable “TMZ-ification” of US media, but rather the Enquirer abandoning “its underappreciated penchant for muckraking” to become a propaganda organ for one man. However you see the Enquirer’s bona fides, the story that Pecker laid out in court last week was that of an extraordinary effort to rig the court of public opinion—or, at least, the views of Enquirer readers—not only by omission, but by commission, too. While the Enquirer had long bashed the Clintons, after Trump jumped into the presidential race, it ran often farcical hit pieces attacking a range of his political rivals. “We mashed the photos and the different pictures with Lee Harvey Oswald,” Pecker said last week, of an infamous Enquirer story linking the father of Ted Cruz to JFK’s assassin. “That’s how that story was prepared—created, I would say.”

From the vantage point of 2024, the idea that anyone ever thought any of this might make a difference to an election feels quaint—because the Enquirer feels too faded a tool to cut through in an era of rampant online noise, perhaps, but also because public opinion about Trump is now pure, constant noise, to the point that he can sometimes appear scandal-proof. Still, some stories do cut through that noise—and at the moment, it might be the catch-and-kill scheme that is doing so to the greatest extent. As I’ve noted before, some Trump critics regret this fact, seeing the New York case both as legally shaky and as less factually consequential than other criminal charges he faces, not least around his attempt to subvert the 2020 election. But those critics might have to get used to it—or recognize, at least, that Trump is unlikely to face accountability for his election denialism in actual court this side of the election. Last week, the Supreme Court considered Trump’s claim that he is wholly immune from prosecution in that case. The justices seem unlikely to accept this argument—but conservatives on the bench do seem keen to kick the case back to a lower court, a move that will likely delay it significantly.

This is not to say, of course, that the court of public opinion can’t still hold Trump accountable for his attempted election subversion; that’s what elections are for. This court is bigger than the media alone, of course, but the media has a role to play within it, by establishing a factual and proportional record of wrongdoing—in this case, centering Trump’s anti-democracy politics without normalizing them. If the cut-through of the Trump trial that is going ahead right now is a product of the legal calendar, it is also a product of intense media coverage. As I’ve argued before, we have the power to frame this case not—or not only—as a sordid tabloid tale, but a serious matter of alleged election meddling, even if the legal specifics are rightly up for debate.

(Ironically, even as a sordid tabloid tale, Trumpworld’s efforts to manage the court of public opinion in 2016 may be blowing up in its face in 2024—not only by making their way into actual court, but by reminding voters of the petty, often sleazy chaos that trails in Trump’s wake. As Politico noted on Friday, “the trial itself has turned into a running commentary on many of the things the Trump campaign wants voters to forget about the Trump years.” Of all the potential Trump trials that could take place before the election, the stakes of this one might seem the smallest, but there is something about it being the trial to make it to court that feels on the nose, given who Trump is and his relationship to the press. Maybe this is the ordering we deserve.)

In the Weinstein case, the dichotomy between actual court and the court of public opinion matters for different reasons. As I wrote in 2020, his conviction appeared to show the former catching up to the latter in cases of sexual abuse, helped along by some exceptional journalism; last week’s reversal appears to show the opposite, at least for now. And yet—as Jodi Kantor, the New York Times journalist who also broke open the Weinstein scandal in 2017, noted on the paper’s Daily podcast last week—the viability of the legal case against Weinstein was always uncertain, while aspects of the broader Weinstein story, not least what it said about dynamics for women in the workplace, were never easily going to be litigated in a criminal court. “We never knew what the legal system would do,” Kantor said. “But the story stands. It’s the women who are the narrators of this story now. And that won’t be overturned.” 

Back in 2018, I wrote that the Weinstein story was fundamentally one about activism and that in this, too, it was Trump-adjacent, responding to “an angry, polarized zeitgeist that Trump has done much to stoke, if not create.” In a broad sense, activism, of course, is still very much in the headlines today, as I explored last week. In 2018, Rutenberg mused to me that “When I think about [the media’s] survival in a post-Trump world, I wonder: Do stories contain the same sort of outrage after Trump? And, if so, do they still drive this intense interest?” The extent to which our collective interest and outrage have endured is a live one—even if we are, clearly, not yet living in a “post-Trump world.” Ultimately, that is not a question that will ever be resolved in actual court.

Other notable stories:

  • Recently, I wrote in this newsletter about a crucial election for the media in Senegal, where press freedom had deteriorated under the outgoing president, Macky Sall. Now Bassirou Diomaye Faye—the new president, who represents a sharp break with the political order—has appointed Pape Alé Niang, an investigative journalist who was repeatedly jailed under Sall, to run the public broadcaster, a decision that has not been without controversy, including among other journalists. Le Monde has more (in French).
  • And for Slate, Michael Waters delved into the lost practice of steamships publishing lists of their passengers—fueling on-board gossip and often making their way into the press. “What made these lists so unique is the sheer transparency they offered,” Waters writes. “Today we no longer really have a comparison—those cryptic, initialed upgrade monitors at the terminal gate don’t quite scratch the same itch.”

ICYMI: Frank Bruni on journalism in The Age of Grievance

Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.