Leak Soup
Since leaks became a big
issue in the Clinton sex scandal, the whole affair has taken on a surreal
Alice in Wonderland quality. For the past several days, the press has
been trying simultaneously to report stories derived from anonymous leaks,
report on the phenomenon of these leaks, and--in the editorial pages--express
an opinion about the propriety of the leaks. If the definition of media
unfairness is the press behaving as prosecutor, judge, and jury, then the
definition of media absurdity is the way the press is now acting as prosecutor,
judge, and defendant.
We
slipped down the rabbit hole Feb. 6, when the New York Times reported
that the president's secretary, Betty Currie, had, while testifying to a grand
jury, contradicted Clinton's sworn testimony about his relationship with Monica
Lewinsky. According to the Times story, which was attributed to "lawyers
familiar with her account," Clinton summoned Currie to the White House Sunday,
Jan. 18, the day after he was deposed by lawyers for Paula Jones. These sources
told the Times that Clinton rhetorically asked Currie, "We [Clinton and
Lewinsky] were never alone, right?" According to the same sources, Currie has
handed over to the independent counsel gifts from the president to Lewinsky
that Lewinsky had given Currie.
If, as various White House spokesmen and the president's
private lawyer David Kendall have charged, the source of this leak was the
office of the independent counsel, it is a serious offense. Disclosing
information from a grand-jury proceeding violates the federal rules of criminal
procedure and would subject attorneys in Starr's office to contempt charges and
possibly jail time. Starr himself could be fired by the attorney general--who,
if she isn't worried about setting in motion an infinite regression, could name
an independent counsel to investigate the independent counsel.
There is
no telling for certain where the Currie leak came from. It might have sprung
from Starr's office; from Currie's lawyer (in which case it would not be
illegal); or from Clinton's team, which could have found out about Currie's
testimony from her lawyer. A preponderance of evidence, however, points in the
direction of Starr. Here are the reasons.
1) The Times account was spun for
maximum harm to Clinton. (The catch-up story in late editions of that same
morning's Washington
Post presented roughly the same facts in a
less damning way.) By casting Clinton's question to Currie as rhetorical, the
Times ' source implied that he was asking Currie to lie to back up his
version of events. If not rhetorical, the same question would have no such
conspiratorial connotation. It might indicate only that Clinton was trying to
refresh his recollection. In fact, this has been the defense offered by the
president's lawyers and spokesmen since the Currie story broke. There's no
reason anyone sympathetic to Clinton would have included that "right?"--even if
Clinton had said it.
The
disclosure was timed for maximum damage to Clinton. At the moment it broke,
Lewinsky was facing an imminent deadline for striking an immunity deal with
Starr's office. Like several previous leaks (some of them subsequently cast
into doubt), the Currie story contained what looked a lot like a message from
Starr to his reluctant witness: I have other evidence against you and Clinton,
so you'd better cut a deal quick. Even if the Clinton side wanted to get this
damaging revelation out in order to spare itself pain later, it would have had
every reason to hold back until Lewinsky and Starr concluded their
negotiations.
2) The story quoted a White House spokesman
saying point-blank that the leak was "false." Currie's lawyer, Lawrence
Weschler, also said it was false that Clinton had tried to influence Currie. If
the leak did come from Currie's lawyer or from the Clinton legal team, the
Times was a willful party to a gross deception. It's almost impossible
to believe the New York Times would mislead its readers by allowing a
source to plant a story and deny planting it in the same news article.
The same
day the Times story came out, Kendall rattled off a 15-page letter to
Starr denouncing it and other leaks. Starr fired back a defensive response.
Everyone spent the weekend debating who was right. This left the Times
and, to a lesser extent, other news organizations in the screwy position in
which they remain. The paper had to report on the debate about where its leak
had come from. But its goal was not the usual one of news reporting, which is
to find the truth. The Times , after all, knows the truth here: It knows
who its own sources are. But in this case, it has granted its own version of
immunity to an act of potential lawbreaking for the sake of gathering
information about other potential misdeeds, much as a prosecutor such as Starr
might do.
A few days later, the Times
editorialized: "The President's lawyer, David Kendall, and this week's
designated spinner, Paul Begala, cannot prove their sweeping televised
assertions that Mr. Starr has illegally leaked grand jury testimony. If he did,
the Federal court that supervises him and the Attorney General, who has the
power to fire him, have the resources to deal with prosecutorial misconduct."
Hold it right there. The Times knows whether Kendall and Begala are
correct or not. But it doesn't want to say, so it hides behind the legalistic
formula that Kendall and Begala "cannot prove" their allegations. And if the
Times thinks that such leaks are "prosecutorial misconduct," why does it
participate in them?
Is there any way out of this
morass? It's tempting to say that reporters shouldn't accept leaks unless the
bias of the source can be indicated. But that's probably not realistic. The
price of getting the story is often a promise of full anonymity. So long as
there's competitive pressure in the press, sources will use the outlet that
affords them the greatest protection.
What the press can do is
cover leaking more aggressively. The Times can't very well send
reporters snooping around after colleagues in the same newsroom. But there's no
ethical stricture against reporters who aren't getting spoon-fed by Starr
pursuing the story of how and why and to whom the independent counsel's office
is leaking. Howard Kurtz, the media reporter of the Washington Post ,
does this a bit from time to time. For a story on the Currie leaks, he
interviewed Michael Oreskes, the Times Washington bureau chief. Oreskes
declined to tell him, of course, who the Times ' sources were. Instead of
leaving it there, the Post should dig a little deeper. A reporter has an
obligation to protect his sources. He doesn't have to protect anybody else's.
So why hasn't
Slate
outed the leakers on Starr's staff and
elsewhere? Because I haven't been able to establish who they are. Anyone who
knows, please feel free to leak it to me.
