Watching a trial in person can, in some cases, humanize the participants. During a break in the proceedings, you might ride on a courthouse elevator with one of the lawyers, or see a plaintiff getting coffee in the cafeteria, or notice a defendant suddenly washing his hands at the next sink in the men’s room. You’re forced to remember, in a way that can sometimes get obscured by media coverage: These are people.
This morning, before the judge and jury entered a federal courtroom in lower Manhattan, James Bennet paced at the rear of the room. He was preparing to get back on the witness stand, where, as a defendant in a libel suit, he could expect to face brutal questioning from lawyers representing his adversary, Sarah Palin. (Palin is suing Bennet and also his former employer, The New York Times Company.) Bennet looked, understandably, quite anxious. His wife sat nearby and stole a few concerned glances at him. It can’t be easy, dealing with this stuff.
But both yesterday (when he first took the stand) and today (when he resumed his testimony), Bennet had trouble expressing that vulnerability to the jury. He spoke in a monotone. He began sentences with phrases like, “My supposition is…” He was sort of bloodless.
Bennet did tell us that he “couldn’t sleep” after he made his fateful journalistic error—the one Palin is suing him for—and he said he’d regretted the mistake “pretty much every day since.” But whatever his true feelings, he just didn’t radiate a remorseful vibe. He sounded more annoyed than contrite.
His worst moment on the stand came yesterday, when one of Palin’s attorneys asked Bennet if he’d ever apologized to Palin for falsely accusing her of inciting deadly violence. Bennet might have responded in any number of ways. For instance, he might have turned to Palin, who was sitting 10 feet in front of him in the courtroom, and apologized right then. Or, if he felt that wasn’t permitted of him, or wasn’t something he wanted to do, he could have explained why not. Instead, when asked if he’d apologized, Bennet replied, “My hope is that as a result of this process I have.” It was totally unclear to me in that moment what he meant and, frankly, it sounded sort of mealy-mouthed.
Palin’s attorney eventually teased out that Bennet was obliquely referring to an email sent back in 2017, from a New York Times comms person to a CNN reporter, in which Bennet had offered CNN an on-the-record apology to Palin. That reporter didn’t bother to run the apology, which Bennet learned within a few days. But in the course of discovery for this lawsuit, Palin’s legal team was given the email, so Bennet now assumed that Palin must have seen it. Apology delivered? The overall sentiment wasn’t exactly warm and fuzzy.
Today, Bennet was asked why he hadn’t told Palin he was sorry once he realized CNN wasn’t going to run his apology. He answered that he subsequently found out that New York Times policy was to not apologize for errors, so he was bound by his employer’s rules. OK, but Bennet doesn’t work at the New York times anymore, so what was stopping him from apologizing now? Bennet said that, given the current circumstances, an apology might not seem like it was made “in good faith” and might come off as “an effort to get out of a lawsuit.”
Strike three, in my opinion. A fear that your apology might be misinterpreted is no reason not to apologize. Perhaps Bennet’s lawyers advised him against it, but it seems like he could have just apologized right there, from the witness stand, and probably done himself some good. The jury will inevitably be swayed—either consciously or unconsciously—by their general feelings toward Bennet. And should they find him guilty of libel, the dollar figure for the damages they attach to his screw-up might well be nudged up or down based on how remorseful they deem him.
But we’re getting ahead of ourselves. The burden is still on Palin to prove that Bennet is guilty of libeling her. Which is why, for most of the day, the players in the courtroom engaged in careful parsing. Parsing the language of the allegedly defamatory passages Bennet wrote. Parsing what was in Bennet’s mind when he wrote them. Parsing emails between Bennet and his colleagues, sent before and after the error found its way into print. At one point, Judge Jed S. Rakoff produced a tattered Webster dictionary, which he said he’s had since he was an undergrad, to read aloud the definition of “incite” and try to determine whether it was a transitive or intransitive verb. (It’s transitive.)
Meanwhile, Bennet kept trying to argue that, in connecting the 2011 shooting of Rep. Gabby Giffords to a graphic that had been circulated by Palin’s political action committee, he meant to express his concerns about the general tone of the political climate and how it could have an “indirect” effect. But Palin’s lawyers kept coming back to the words Bennet used in the editorial: “the link to political incitement was clear.” Which it wasn’t. Giffords’ shooter, Jared Lee Loughner, was—as the Times itself had previously written—so mentally ill that he was “well beyond usual ideological categories.”
It’s sort of ironic that Bennet’s central argument in the editorial in question was that we should all lower the temperature of our rhetoric. Because what Bennet in fact did was fan the flames: Whether he intended to or not, he accused Sarah Palin of helping cause a murder. As I’ve written before, I don’t think he consciously meant to harm her. But I do wonder, was he thinking at all about her when he wrote those words? Not Sarah Palin the symbol. Sarah Palin the person.
Palin was sitting right there today, surrounded by men in dark suits, wearing a double-breasted blazer that was the only pop of color in the whole courtroom. (I was thinking the blazer was pink, but I consulted the courtroom sketch artist for her expert opinion and, after some consideration, she decided it was fuchsia.) After Bennet was done getting grilled, and following a brief interlude in which Times opinion columnist Ross Douthat took the stand mostly to confirm things we’d previously learned, Palin’s team called its next witness: Sarah Palin.
There wasn’t much time for her testimony. She was only on the stand for 15 minutes before the trial adjourned for the day. But this was long enough for her to describe what it’s been like to live in Wasilla, Alaska, since she was in second grade (“You’re missin’ out!” she said to the jury, when her lawyer surmised that none of the jurors had ever visited Wasilla), for her to refer warmly to her five children and eight grandkids, and for her to speak in noble terms about how she’d managed to rise to political prominence even though she was just a regular gal from a frozen little town in the middle of nowhere.
In Palin’s 15 minutes on the stand, she smiled more often than Bennet had in his five-plus hours. Tomorrow, she’ll get back up there and will—as she attempts to sink both Bennet and the Times—no doubt keep on smiling.