Psst: I can hear you. And I'm a reporter

"These guys are having this sensitive conversation right in front of me. In a public restaurant, on the sidewalk," says a New York Times reporter. Was he wrong to write a story?

Did a journalist do anything wrong by writing about what he overheard in a public place?

Ty Cobb (right), a member of U.S. President Donald Trump’s legal team, discusses details of the team’s response to the Russia investigations with John M. Dowd, the president’s lead outside attorney in the investigations, at BLT Steak in Washington. The New York Times' Kenneth Vogel overheard them, did some research and wrote a story. (Kenneth P. Vogel/The New York Times)

Every journalist knows good stories don't just get handed to you. Even eye-widening tips have to be investigated and corroborated. But the New York Times' Kenneth Vogel must surely feel he's come as close as any journalist gets to having a front-page story handed to him on a silver platter.

"It was just happenstance," says Vogel, that he was invited to meet a source for lunch at Washington's popular BLT Steakhouse restaurant this month. It was the source who first recognized the two men seated at a patio table nearby.

"I continued to have my lunch conversation with my source, even as I was tantalized by the fact that these two guys are sitting next to me, and occasionally tried to listen in on what they were talking about."

  • Watch The Investigators with Diana Swain Saturday at 9:30 p.m. ET and Sunday at 5:30 p.m. ET on CBC News Network

Those men, Ty Cobb and John Dowd, are two of U.S. President Donald Trump's lawyers. Vogel says it was quickly clear they were talking not just about their boss, but about tension between lawyers representing Trump personally and those representing the White House, over how much co-operation to give FBI investigators on the Russia file.

"I thought, 'Isn't this fascinating?' These guys are having this sensitive conversation right in front of me. In a public restaurant, on the sidewalk, where they could be overheard by anyone."
Donald Trump lawyers overheard by New York Times reporter. Kenneth Vogel was sitting at a Washington steakhouse when lawyers Ty Cobb and Donald F. McGahn II started talking about strategy for Robert Mueller's Russia election interference probe. Was it fair to report on what he overheard? Watch The Investigators Saturdays at 9:30 pm ET and Sundays at 5:30 pm ET on CBC News Network. 5:10

Once his source finished his meal and left, Vogel told this week's edition of The Investigators with Diana Swain, he stayed behind, sipping his iced tea and tapping out notes on his smartphone for what would become a front-page embarrassment for the White House.

"This is actually a technique that I've used quite a bit. Because … it is discreet. It's not noticeable. Everyone's on the phone. All the time. So, for all they know, I was just responding to emails, or looking at Twitter, or what have you. But in fact, I was sitting there taking down notes from their conversation."

'No expectation of privacy'

Did Vogel violate their privacy? No, he says. Neither legally nor ethically.

"The legal terminology is 'expectation of privacy.' And there is no expectation of privacy if you're in a public place."

To be sure, the men did virtually nothing to protect their privacy. They were speaking so loudly as to be easily overheard, and Vogel didn't need to slide his chair any closer. He could hear every word from where he sat, as could anyone else seated nearby.

The pair showed remarkable "lack of sensitivity and care in handling this incredibly sensitive information," he says.

"That said, we did work very diligently to corroborate the information that we picked up from this. There were other aspects of the conversation that were fascinating, and I thought could be even more explosive, that we did not run. Because we were not sure of the context, and we were not able to independently corroborate — we're still working on that stuff."

In other words, stay tuned.

Also this week on The Investigators with Diana Swain, Vice Media's Justin Ling talks about why he believes the news media's coverage of the Trudeau government's proposed tax changes has been offside, and reporter Antonia Farzan of the Phoenix New Times explains how some employees of the Motel Six hotel chain got caught turning over a daily guest list to immigration officers.

A New York Times reporter overheard a conversation between two Trump lawyers at a restaurant in Washington--is it fair game? Plus, separating fact from fiction in the debate over proposed tax changes. Watch The Investigators Saturdays at 9:30 pm ET and Sundays at 5:30 pm ET on CBC News Network. 22:25

About the Author

Diana Swain

Multi-award-winning journalist Diana Swain is the senior investigative correspondent for CBC News and host of The Investigators on CBC News Network.