David Boies: I Didn’t Betray The New York Times for Harvey Weinstein
David Boies insists to The Daily Beast that he did not act improperly, after The New York Times accused his firm of ‘secretly working’ to obstruct its Harvey Weinstein reporting.
Lie down with Harvey Weinstein, get up with stench.
Legal eagle David Boies, who tried to help his client prevent allegations of rape and numerous other instances of sexual misconduct from seeing the light of day, was quickly learning that painful lesson Tuesday as another client, The New York Times, accused him of “intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.”
It was the day after The New Yorker published a bombshell article detailing how Boies hired former Israeli secret agents to discredit the movie mogul’s alleged victims and thwart investigative journalists’ efforts to expose Weinstein’s wrongdoing.
“I’ve had better [days],” the 76-year-old Boies told The Daily Beast on Tuesday, as he coped with the radioactive fallout from Ronan Farrow’s latest exposé, including demands for his disbarment on social media and an angry condemnation from the Times. “On the other hand, I’ve had worse.”
A blistering statement crafted by Times Deputy General Counsel David McCraw in response to The New Yorker’s revelations accused Boies—whose 350-attorney law firm, Boies Schiller Flexner, represented the paper of record, until Tuesday night, in an ongoing libel suit and a couple of intellectual-property matters—of an unethical conflict of interest, a charge the famed lawyer disputed in an interview.
“We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters,” the Times statement said, adding, “It is inexcusable and we will be pursuing appropriate remedies”—suggesting that the paper was contemplating firing Boies’s law firm (which it did Tuesday night) or possibly even filing an ethics complaint against the lawyer with the New York State appeals court.
The Times statement was addressing Farrow’s report that Boies, on behalf of Weinstein, secretly signed a $600,000 contract with the Israeli investigative firm Black Cube, composed of former members of the Mossad secret service, and paid them to wheedle information out of journalists, including Times reporter Jodi Kantor, the coauthor of the paper’s explosive Oct. 5 Weinstein story, and assume fake identities to ingratiate themselves with rape accuser Rose McGowan and undermine her credibility.
According to the July 2017 contract, Farrow reported, Black Cube would receive a $300,000 bonus if it “provides intelligence which will directly contribute to the efforts to completely stop the Article from being published at all in any shape or form.”
In a text message to The Daily Beast, Times Executive Editor Dean Baquet acidly remarked: “All I will say is that at the time Mr. Boies was doing this he was also hectoring and lecturing us on ethics as we investigated his client.”
In an interview, Boies disputed the charge that he acted improperly, noting that he didn’t choose or direct the activities of Black Cube, but hired the company at Weinstein’s behest as what he considered at the time—but in retrospect, mistakenly—was a “reasonable accommodation for a client.”
Yet in a defensive memo to colleagues, he argued that his law firm’s retainer agreement with the Times explicitly permits the firm “to represent clients adverse to the Times on matters unrelated to the work we were doing for the Times.”
He continued in the memo, “I told Mr. Weinstein that we would not represent him in this matter,” even though he was aggressively making Weinstein’s case to the Times, and added that “because I perceived the investigators’ work as trying to ascertain the exact charges against Mr. Weinstein and to develop facts that would prove the charges untrue, I thought at the time that was an appropriate endeavor.”
In an acknowledgement of what he portrayed as an honest mistake, however, Boies told his colleagues: “Had I known at the time that this contract would have been used for the services that I now understand it was used for, I would never have signed it or been associated in any way with this effort.
“I have devoted much of my professional career to helping give voice to people who would otherwise not be heard and to protecting the rights of women and others subjection to oppression. I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am.”
Boies had few defenders in the legal community Tuesday. Two of his prominent friends, famed First Amendment lawyer Floyd Abrams and former Solicitor General Ted Olson (who, along with Boies, helped win the Supreme Court’s legalization of same-sex marriage), both declined interview requests.
A third prominent media lawyer, who spoke on condition of anonymity, said “he definitely should have disclosed what he was doing” to the Times.
“What’s shocking is a lack of common sense,” said former Bloomberg LLP global media counsel Charles Glasser, an adjunct professor of media ethics and law at New York University Journalism School. “It’s stunning for such a high-profile lawyer to take an adverse position to a client like the New York Times. It’s unthinkable. I don’t blame Dean Baquet for being pissed off.”
In his interview with The Daily Beast, Boies cheerfully acknowledged that he was being tried and perhaps even convicted in the court of public opinion and occasionally punctuated his comments with laughter (although later on, after the phone call ended, a spokesperson for Boies declined to put him on again to specifically answer demands for his disbarment, saying the very notion is “absurd.”)
“I think the nature of the media business today, and the nature of social media, is that when something like this happens, it turns into a kind of feeding frenzy and I think sometimes important points get obscured,” Boies said. “On the other hand,” he added, “I think in the main, the media is focusing on an entirely legitimate problem—what is the right role for investigators so they don’t cross the line…I think most people say it’s not appropriate to try to intimidate or pressure people, although that happens both from time to time by investigators and by reporters, for that matter.”
Meanwhile, Boies criticized Times deputy general counsel McGraw’s broadside, saying, “I don’t think that statement was well thought out. It may have been he reacted without actually thinking about some of the facts that were published in the New Yorker, and without looking at the retention agreement.”
When the Times retained Boies’s law firm years ago, Boies said, “it was absolutely clear that we had to be free to continue to represent people who the New York Times was investigating or reporting about.”
While Boies’s law firm has, until recently, represented the now-collapsing Weinstein Company, Boies said that as of Monday, he had only billed five hours, at his usual rate of $1,650 per hour, to help the disgraced movie mogul counter the mushrooming accusations, which now reportedly include the likelihood that he will soon be indicted by Manhattan D.A. Cyrus Vance in two alleged 2010 rapes of Boardwalk Empire actress Paz de la Huerta.
Boies complained that no one at the Times, notably McCraw, bothered to contact him for his explanation of his conduct before issuing their harsh statement Monday night; he added that what Baquet described as his “hectoring and lecturing” was in response to the paper’s refusal to interview him—not as Weinstein’s attorney but as someone familiar with the facts—for its investigation of the mogul’s abuses.
“It was the first time I ever experienced the situation in which [there was] the person with knowledge, and they had no interest in talking to them,” Boies said, noting that he received several letters from the Times declining his interview offer—one in August saying it was too early in the reporting process for such a session, and another in September saying it was too late. “I had facts related to the subject of the matter they were investigating that I thought they might be interested in, and I had Mr. Weinstein’s permission to talk to them.”
Boies added: “What Dean [Baquet] refers to as ‘hectoring’ was my writing him and saying, ‘It’s hard for me to understand how, if you’re really interested in finding out the truth, you don’t want to talk to somebody who has some knowledge.’ After all, they’re free not to publish what I say, but it was just surprising to me that they didn’t even want to listen.”
Asked his response, Baquet fired back: “I say that he is utterly unqualified to lecture on journalism ethics. And the proof was in the New Yorker piece.”