Neither notion is particularly flattering, but I think the latter is more troubling, for it suggests an effort to knowingly intimidate me out of exercising my legal rights.
To be clear about the facts, at 8:51 AM Thursday morning, June 28, AGO deputy communications director Dan Sytman sent out an email to news organizations announcing an 11:30 AM "media availability" at the AG's downtown Seattle offices. This was not a campaign event. This was official business conducted by an elected official at an official government office.
The rest of the details are unimportant to the larger point. AGO staff attempted to physically bar me, a member of the media, from entering a broadly advertised media availability.
It is not uncommon for government bodies to have media credentialing procedures—for example, only credentialed members of the Olympia press corps are permitted into reserved areas within state house and senate chambers—but the courts have required that such procedures be both written and publicized, and that the standards for denying access to journalists be based on "a compelling government interest" (Sherrill v. Knight):
The protection afforded newsgathering under the first amendment guarantee of freedom of the press ... requires that this access not be denied arbitrarily or for less than compelling reasons.
... This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment.
As far as I know the AGO has no press credentialing procedures. And even if they did, they would be hard pressed to argue compelling grounds for my legal exclusion.
The AG's position, first articulated by McKenna himself (and half spoken by Sytman on Thursday as he locked a door in front of me), appears to be that I may be excluded on grounds that I am not a bona fide member of the news media. "I don't think David Goldstein qualifies as a journalist," a clearly irritated McKenna told fellow Stranger reporter Eli Sanders last year, a few days after McKenna had me barred from entering the press conference at his gubernatorial campaign kickoff. "He's a hack. He's a partisan hack," McKenna insisted. "He's just there to parrot points from the other side."
McKenna is as free to question my credibility as a journalist as I am to question his credibility as an attorney, but he has absolutely no authority to determine who is and who is not a journalist. McKenna called a "media availability," and under the only statute in the Revised Code of Washington to define the term "news media" (broadly, and not just for the purposes of a particular chapter or section), I clearly fit the bill:
(5) The term "news media" means:
(a) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;
(b) Any person who is or has been an employee, agent, or independent contractor of any entity listed in (a) of this subsection, who is or has been engaged in bona fide news gathering for such entity...
My credibility or my partisanship is not an issue here. Dominic, my news editor, instructed me to attend Thursday's press conference for the sole purpose of gathering news under paragraph (b) on behalf of my employer under paragraph (a). It wasn't a stunt. It was my job. A job that legally defines me as "news media" under Washington state statute. And you'd think that McKenna would be well familiar with the wording of this definition, since it comes from the reporter shield law McKenna proudly claims he authored.
This is what leads me to believe that McKenna and his staff knew full well that I had a first amendment, fifth amendment, and statutory right to attend that press conference. It is also what leads me to suspect that the events that unfolded constituted a premeditated course of actions specifically intended to harass and intimidate me into surrendering those rights. For had they truly believed that the law was on their side, I see no sense in escalating this confrontation to the point where my arrest was imminent (the guard was on his phone calling for the SPD while I was on mine making arrangements to have my dog taken care of), only to ultimately back down.
Ignorance of the law is no excuse, especially for a sitting attorney general, but what McKenna and his staffers did to me last Thursday suggests something much, much worse. It appears that he attempted to use his office to bully and intimidate a working member of the press, to deny me my statutory and constitutional right to do my job, and perhaps even to provoke me into a physical confrontation that they could use as grounds for my arrest and prosecution (all I needed to do was shove back the staffer who grabbed my shoulders or the security guard who repeatedly bumped me while blocking my way, and it's my word against the AG's as to who assaulted whom). It was an arrogant, arbitrary, and illegal abuse of his office that displayed a total disrespect for the law.
Or, I'll allow, an ignorance of it. If McKenna and his staff want to plead stupidity, that's up to them.
Either way, why McKenna would pursue this course of action just baffles me. The optics are terrible, and legally he can't win. And Jesus... what's the possible harm in letting me in? The worst thing that happens is I ask a difficult question to which he gives a bullshit political non-answer answer. That's pretty much how press conferences normally work.
I can only presume that I've gotten under his skin, and against his better judgement, he's decided to just be a total dick about it, the law be damned, in the same way he was a total dick to Public Lands Commissioner Peter Goldmark after Goldmark declined to follow the AGO's legal advice. And that pattern of dickish behavior doesn't bode well for how McKenna would exercise the power of the governorship.