A PolitiFact fact check from July 24, 2019 serves as our example.
We would first draw the reader's attention to the way PolitiFact altered Rep. Ratcliffe's claim. Ratcliffe said Mueller did not follow the special counsel rules. Not following rules may take place though omission or by elaborating on what the rules stipulate. But PolitiFact says Ratcliffe claimed Mueller broke the rules.
We think it's fairly clear that elaborating on the rules counts as failing to follow the rules. It's less clear that elaborating on the rules counts as breaking the rules.
So right off the bat, PolitiFact is spinning Ratcliffe's claim into a straw man that is more easily attacked.
Missing the Point?Rep. Ratcliffe was repeating a point pretty familiar to conservatives, that the Mueller report failed to follow the special prosecutor statute because Mueller punted on deciding whether to recommend prosecution for obstruction of justice. Conservative pundit and legal expert Andrew McCarthy, for example, has written on the topic.
It's hard to see how PolitiFact's fact check addresses a position like McCarthy's.
PolitiFact contacted three legal experts for comment. But only Mark Osler (University of St. Thomas) was quoted on Ratcliffe's key issue:
Federal regulations say, "At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel."We humbly submit to the expert Osler that a declination is not merely a lack of action. Declination, in context, is a decision not to prosecute. An explanation of Special Counsel's decision not to prosecute meets the requirements of the statue. But an unexplained decision not to decide whether to prosecute should not meet the requirements even though it is lack of action.
"It clearly includes declinations, which is taking no action," Osler said.
And, hypothetically, taking no action at all as by not filing the report is taking no action but does not satisfy the statute.
A July 24, 2019 article in Washington Post helps make clear that Mueller pretty much declined to spell out why he declined to recommend prosecution for obstruction of justice:
John Yoo, a former top official in the George W. Bush Justice Department, said he found Mueller’s explanation “rather vague and somewhat mysterious,” and that he may have felt he should defer to the attorney general.Again, the declination description required in the statute concerns the decision not to prosecute, not the decision not to explain the decision not to prosecute. Lack of action is not an explanation.
“Like everyone else, I have been trying to infer why he did what he did,” Yoo said.
But Mueller offered little elaboration on his reasoning as he was pressed Wednesday by lawmakers in both parties.
PolitiFact's Big WhiffPolitiFact showed the true quality of its fact-checking by apparently knowing nothing about widely-published reasoning like McCarthy's. It's the Bubble!
Check out this faux pas in PolitiFact's summary:
We found no legal scholar who agreed with Ratcliffe.PolitiFact could not find articles by Andrew McCarthy?
Couldn't find the comments by David Dorsen in this Newsweek article?
Couldn't find this piece by Alan Dershowitz for The Hill?
Trust fact checkers? Why?