Imagine this: a prominent attorney in a high-profile case breaches a written agreement and violates a court order. He commits perjury concerning the breach, files motions blaming the breach on someone else, and even tries to have the case against his client dismissed on the theory that someone else is responsible for the breach. After doing all this, he breaches the same agreement and violates the court order again.
Now imagine that a reporter knows about all of this.
Is it a story?
Yes, obviously, to a layperson.
To a reporter, it’s not a story if the breach involved feeding the reporter information.
The case I’ve just described is that of Troy Ellerman, an attorney representing figures in the San Francisco federal grand jury investigation into BALCO and steroids use in professional sports. In the course of representing one of the targets of that investigation, Ellerman received transcripts of grand jury proceedings. As is typical for such disclosures, Ellerman executed an agreement not to disclose the transcripts, and was bound by a court order preventing their disclosure. Nevertheless he allowed reporters to review transcripts of the grand jury testimony of Barry Bonds, Jason Giambi, Gary Sheffield, and Tim Montgomery. The reporters printed stories based on the secret grand jury testimony, and when the shit hit the fan, Ellerman engaged in the deceptions described above: he submitted a declaration under penalty of perjury saying he was not the leak, he accused the government of the leak, he filed a motion seeking dismissal of charges against his client because of the leak, and eventually he leaked more.
The reporters in question refused to disclose their source, and came close to going to jail over it. They did not disclose his identity even as he committed perjury and obstruction of justice before their eyes.
Ellerman entered a guilty plea and got 2 and a half years in jail. The reporters escaped prosecution for refusing to disclose his identity.
What, exactly, is the social or journalistic value promoted by concealing grave misconduct by leakers in order to get a story?
Reporters argue that sources must receive their unqualified protection or no one will approach them with information, and that this process promotes the search for truth. This is a questionable proposition, and has proved untrue in parallel contexts. Defendants and witnesses routinely “flip” for the state and federal government, giving up information about themselves and others in hopes of leniency. The agreements governing such cooperation routinely specify that the deal is off if the cooperator lies to the government or in court, or if the cooperator breaks the law while cooperating. The government does drop the hammer on cooperators and rescind cooperation agreement when they are caught in a lie or a new crime. Yet the government has no shortage of cooperators. Why should leakers get a free pass for post-leak misconduct? Why should they get a free pass if the leak turns out to be a lie?
Moreover, shouldn’t there be some sort of balance involved? Ellerman was not leaking the Pentagon Papers. He wasn’t revealing government misconduct that would otherwise have been unknown. He was leaking secret grand jury testimony in a not-yet-completed investigation about steroid use in pro sports. It’s upjumped tabloid stuff. And by leaking it in order to grab a headline, the reporters almost certainly harmed the chances that the people who testified, or the people they testified about, would get a fair trial if they are charged. What social or journalistic value does that promote? And is the story of pro athletes admitting or denying steroid use more important, more informative, than the story of a prominent attorney in a high-profile case breaking the law, committing perjury, and falsely accusing others?
The decision to lionize and protect a leaker simply because he is a leaker strikes me as amoral. Journalists ought to know that when they accept unlawful leaks, they are frequently acting as a willing tool of the leakers. Law enforcement insiders commonly leak information that serves to prejudice the jury pool and coerce or retaliate against the accused. This becomes particularly egregious when the accused is innocent. Consider Wen Ho Lee – government insiders leaked false and harmful information about him, journalists printed those falsehoods, and after Lee was almost entirely vindicated (pleading to a drastically reduced charge of mishandling national security data after charges of espionage were eviscerated), media outlets paid him big bucks rather than reveal the identity of the government insiders who had lied to them to damage Lee. What value worth advancing was protected by that journalistic decision? Isn’t the behavior of those government officials a story? Wasn’t it a story the day they did it, not merely in the distant aftermath?
Lee is hardly alone. Whether it was the FBI’s leak of its profile concerning Richard Jewel, or leaks to Nifong-friendly press in the Duke lacrosse case, plenty of people wind up exonerated after leaks calculated to suggest their guilt. And that’s the tip of the iceberg. Plenty of people who probably did what they are accused of are the subject of leaks. They may have done it, but they have the right to a fair trial, and the leaks represent a violation of the law. Where’s the reporting on that?
This phenomenon is not limited to leaks. Consider the “perp walk” – the practice of parading a just-arrested defendant before cameras. Sometimes this is just a matter of reporters staging out an area where every defendant is taken – a courthouse entrance, police department front steps, and the like. But just as often law enforcement tips off journalists when and where the arrest or perp wall will happen. It’s a popular method of breaking down a defendant’s resolve. What legitimate law enforcement purpose does that serve? Isn’t the fact that a police insider leaked such information newsworthy itself? But you’d never find a paper reporting it. They just run the resulting pictures.
A friend of mine represented a low-level public official in a case that had gotten local press. The DA’s office resolved to have him arrested and charge him. Someone tipped the press. The DA investigators showed up at his house at 7 a.m., put the cuffs on him, and walked him to the police car. But the local reporter and his cameraman where late, and they complained to the cops. So the cops took my friend’s client back into the house, then marched him back out and to the car for the camera. The reporter did not report on that conduct. Rather, the paper ran the picture – just as if it had actually captured a true-to-life perp walk through, you know, real journalism. Where was the real story there? Was it the picture of the guy getting walked to the car? Or was it that cops were willing to re-stage an arrest for cameras?
Reporters wave the flag and the First Amendment and claim that protecting sources is in service of their obligation to bring facts to the public. Certainly in some cases protecting sources has upheld such values – particularly when the insider is revealing government or corporate misconduct that otherwise would remain hidden. But do all leaks deserve that respect? When a leak involves deceit (such as lying to the reporter) or misconduct (such as violating a defendant’s rights) beyond that inherent in leaking, is it worthy of the same protection? The sort of cases set forth above raise the question of whether protecting leakers is about any high-minded purpose, or whether it is about promoting journalists’ prominence and ego. Leaks make headlines. Headlines make careers. With those temptations, how much weight should we give to journalists’ answers to these questions about leaks?
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016