The unholy alliance between Kenneth Starr's office and the press

The dissemination of grand jury leaks violates the law as well as the journalist's moral and professional ethos.


Joe Conason
January 31, 1998 1:00AM (UTC)

The outpouring of information (and disinformation) from Kenneth Starr's grand jury seems to be regarded by most Washington journalists as a piqata party, with everyone grabbing for goodies -- and some, most notably reporters for the Wall Street Journal and the Dallas Morning News, turning up with big booby prizes. Reporters and pundits -- who apparently consider leaks from official sources to be their professional birthright -- have barely deigned to notice that the leaking of grand jury material is not only a felony, it involves a violation of the very constitutional rights the American press is supposed to defend.

President Clinton's lawyers have noticed, of course, and gone to court this week in what will probably turn out to be a futile attempt to penalize Starr, whom they blame for the leaks. Taking umbrage at such accusations, the independent counsel says he'll get to the bottom of this leaking problem. Given his expenditure of well over $30 million since August 1994, getting to the supposed bottom of the Whitewater land deal, nobody has dared to estimate the potential cost and time line of a Starr-led leaks investigation. And almost nobody has mentioned the conflict of interest Starr faces in a probe of his own office. (Isn't that exactly the same kind of conflict we try to avoid by appointing independent counsels?) Presumably the byword of Starr's internal investigation will be, as the paranoid commie-hunter in Bob Dylan's classic "Talking John Birch Society Blues" frets when he finally decides he must investigate himself: "Hope I don't find out nothin'!"

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While it's unlikely the leaks from Starr's grand jury will stop, there is a real moral issue for editors and producers about using them. Many, however, think the idea of refusing leaks is utterly ridiculous. Frank Rich summed up this attitude in his New York Times column on Feb. 11 when he called leaks "a legitimate source of news." Without them, he contended, "We'd never know what anyone in Washington was up to." Like many pundits, the former theater critic is in over his head when discussing the nuances of what passes for "investigative reporting." There is in fact a big difference between a grand jury leak and any other kind.

That difference was summed up, ironically enough, in the juxtaposition of two columns attacking Clinton in the New York Post on the same day that Rich's column appeared. In the first, former New Republic editor and perennial Clinton-hater Michael Kelly pompously declared: "There are a great many laws on the books of this country, many of them onerous and some of them odious. Nevertheless, we are all required to obey them all." Kelly mentions several of these laws, but not the prohibition against violating grand jury secrecy.

Abutting Kelly's rant was a piece by Washington Post syndicated columnist Richard Cohen, arguing that the White House protest about leaks from the Starr grand jury is a diversion that echoes the last gasps of Spiro Agnew. "Patriotism may be the resort of a scoundrel, but yelling about leaks is a close second." In other words, we all should obey all the laws all the time -- unless we are members of the press colluding with a prosecutor to violate grand jury secrecy.

As anyone who has done investigative reporting knows, prosecutors rarely divulge grand jury testimony, partly because they are afraid to do so and partly because they know it is wrong. The flood of stories from inside Starr's jury room is unusual, and therefore particularly suspect. It is obvious that some of the leaks about testimony linking Monica Lewinsky to the president, for example, were intended to put pressure on Lewinsky and her lawyer while Starr was trying to negotiate an immunity agreement with them. Should reporters participate in this kind of unlawful maneuvering by a prosecutor for the sake of an "exclusive" news story? Should they -- and their editors -- abet the commission of a felony by government officers because they want a scoop?

It is morally bankrupt to argue that such compromises are made in the interest of the public's right to know. Journalists would argue strenuously that the public has no inherent right to know their sources, and there are even "shield laws" in some states intended to protect the secrecy of sources under most circumstances. Why shouldn't reporters respect the right of citizens to secrecy when they testify before a grand jury? If under the Constitution there are some things that people don't have "the right to know," such as a journalist's sources, then logically there may be other things -- such as a witness's grand jury testimony -- the public just doesn't have the right to know either.

Taking stenography from a venal prosecutor is not exactly the highest form of investigative reporting. While there may sometimes be reason to accept testimony or documents produced before a grand jury that has already completed its work -- such as in the investigation of a political figure -- it is hard to think of an example when a leak from a sitting grand jury has measurably advanced the public interest. Real investigative journalism may well result in grand jury proceedings, but it almost never begins there.

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Besides, there are terrible reportorial problems with grand jury leaks. In most instances they cannot be double-sourced or checked in any way, especially when they are part of a competitive, fast-breaking story. The only source is likely to be a prosecutor or investigator, whose word usually must be accepted without further confirmation or documentation. (Unusual as grand jury leaks are, the leaking of transcripts or other documents is ever more rare.) Basing a story on a single source is always a risky proposition, particularly if the source is a prosecutor leaking as a tactic against a potential defendant or witness like Lewinsky. The end result -- as the Dallas Morning News and the Wall Street Journal discovered when they went with a story that there was an eyewitness to Clinton-Lewinsky sex -- can be an embarrassing retraction that would never have resulted from a double-checked, better-sourced story.

Yet the most important reasons for journalists to reject illegal leaks from prosecutors are not practical. They are moral and constitutional. In a country where the rights and privileges of a free press are meant to protect the people from government abuse, what justifies the collusion between prosecutors and reporters in violating a citizen's rights -- even if he or she happens to be the president?


Joe Conason

Joe Conason is the editor in chief of NationalMemo.com. To find out more about Joe Conason, visit the Creators Syndicate website at www.creators.com.

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