The outpouring of information (and disinformation) from Kenneth Starr's
grand jury seems to be regarded by most Washington journalists as a piñata
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'!"
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.
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?