THE REAL NEWS PAGE
  

THE MEDIA'S ETHICAL ROLE
IN GRAND JURY LEAKS

A Debate

Begun February 1998

* Jeff Greenfield, CNN
* Jane Prettyman, TRNP
* Gerald F. Uelman, Professor of Law, Santa Clara University, CA
* Hendrik Hertzberg, The New Yorker
* Anthony Lewis, New York Times
* Steven Brill's Starr interview in "Pressgate"
* James Doyle, Nieman Fellow, former special assistant
to independent prosecutors Leon Jaworksi and Archibald Cox

   

THE DEBATE QUESTIONS:

It has become apparent that numerous major news businesses (CNN, the networks, Newsweek, the Wall Street Journal, the New York Times, among others) are depending in part on leakers privy to Kenneth Starr's Grand Jury investigation as "news creators."

This reveals a conflict of interest which raises several tiers of questions:

1) When reporters and editors stand to benefit personally from illegal Grand Jury leaks in producing their stories--and the businesses they work for stand to benefit financially--does not this conflict of interest inhibit objectivity when news organizations "report on" the legal and ethical debate surrounding such leaks?

How do reporters and editors resolve the contradiction of: a) educating the public about why unfettered leakage of un-cross-examined Grand Jury testimony is a danger to individual freedoms, b) while, sometimes in the same breath, reporting stories based on leaks? Is "a" diminished by "b"?

2) Since it's nearly impossible to identify leakers, shouldn't we be focusing just as seriously--in terms of ethical and legal consequences--on the "leakees"? When news businesses use leaked material from secret Grand Jury proceedings, are they not in effect acting as accessories to a crime?

The leaks might not occur--or be disseminated--if there were no news organizations eager to "fence" them. When the commercial media receive Grand Jury leaks and then print or broadcast them (sell them as news), is there an analogy to receiving and selling "stolen goods"?

3) What First Amendment considerations might bar a legal prohibition against dissemination of secret grand jury information in the media?

4) Some journalists defend their stories about a Grand Jury investigation by saying they are relying upon "pre-interviews" or other prosecutorial materials developed preliminary to actual GJ testimony. Although these preliminary materials are not specifically mentioned in Rule 6 (e)'s secrecy provisions and the courts are divided on the question, a) are not these materials just as prejudicial as actual testimony, and b) does not their use in news stories subvert the intent of Rule 6 (e)?

5) Whether pre-interview or actual GJ testimony or even secret civil evidence is the basis of the illegal leak received by the reporter, how is this material corroborated for accuracy? What other source can be relied upon to verify the leak who is not himself or herself involved in an act of illegal leakage in doing so?

6) A frequent media response to these questions is: "What about the Pentagon Papers and other cases where leaks of material valuable to the public were legally challenged by an administration?" Are leaks of grand jury material really comparable to the Pentagon Papers case?

7) Does not the dissemination of Grand Jury material--by a press-- whose freedom is granted to assist in maintaining our individual freedom from government (prosecutors)--have, instead, the effect of reducing rather than enhancing our freedom in relation to government?

8) When the media repeatedly print or broadcast Grand Jury leaks, might not individuals in the public get the idea that GJ secrecy is worthless as a protection? Might witnesses argue that because they cannot rely upon confidentiality, they can refuse to testify before a Grand Jury?

9) Regarding the leaking of Clinton's sealed deposition in the civil case of Paula Jones, the same thematic question applies: Did the leaked "detailed account" in the Washington Post subvert the intent of secrecy ordered by Judge Wright to preserve a fair trial for all parties, including Paula Jones whose depo has been leaked as well? What "details" were not included in the selective summary of Clinton's depo? How was the summary corroborated for accuracy? Regardless of who did the leaking, are the Washington Post and other news media outlets--ethically if not legally speaking--accessories to contempt of court for printing and quoting from the depo account?

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Rule 6 (e), Federal Rules of Criminal Procedure (excerpts):

* A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.

* Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.

________

On May 5, 1998 the Washington, D.C. Appellate Court ruled that the Rule 6(e) prohibition extends to "not only what has occurred and what is occurring before the Grand Jury, but also what is likely to occur. Encompassed within the rule of secrecy are not only the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, but also the strategy or direction of the investigation, the deliberations or questions of jurors, and the like."


The questions above were compiled by Jane Prettyman in association with Carol Cantor and Joel Swadesh. We invite you to add your own questions to the list and circulate them to news managers and bring them up in public debates.

In Februry 1998, Jane Prettyman sent these questions to 50 journalists, columnists and others in the media industry and legal profession, along with her letter in response to comments received from Jeff Greenfield of CNN. Below is the Greenfield exchange followed by a few other comments that have come in to The Real News Page thus far on this issue.

THE DEBATE

   
From Jeff Greenfield, CNN
March 19, 1998

Dear Ms. Prettyman,

Thanks for sending me your questions. There's no doubt that the First Amendment is not absolute; in states without shield laws, reporters have gone to jail to protect their sources. (To me, the more obvious example of limits has to do with press behavior more like a mob's. There, I have no problem with using the traditional concepts of harassment and/or assault).

But there are reasons why the press is generally free to report leaks, as in the Pentagon Papers case. The whole point of the First Amendment was to make the press a guardian of the public's right to information, even when officials want to keep that information secret. There are enough past examples of prosecutorial misbehavior to justify protection. The press would be wrong to pretend that this freedom is without cost, but it is still, in my view, justifiable.

Sincerely,

Jeff Greenfield, CNN News

From Jane Prettyman, replying to Mr. Greenfield
March 22, 1998

Dear Mr. Greenfield, CNN News

I appreciate your taking the time to respond to our question regarding the media's ethical role in the dissemination of illegal Grand Jury leaks.

First, allow me to address the application of your fundamental rationale. You wrote: "The whole point of the First Amendment was to make the press a guardian of the public's right to information . . . "

That's only half the point; the other half is missing.

"Freedom of the press" in the First Amendment was granted not for the benefit of media corporations but for the benefit of The People--not an amorphous blob of the "public" but The People--so that we might have a free flow of information to defend ourselves against tyrannical government. The press is granted freedom of action to gather information for us but this is not a license to disregard their responsibility to the intent of the law--such as Rule 6(e)--that exists to protect individual citizens among The People. Ken Starr and his staff of prosecutors are a powerful part of government, some would say tyrannical government. The newsmedia have, in some minor and major instances, collaborated actively and passively with Ken Starr by passing on his leaks into print and on air, thus reducing our freedom rather than enhancing our freedom.

Prosecutors of any sort are part of government. Prosecutors often use the Grand Jury process to develop a case against an individual. Evidence is presented solely from the prosecutor's point of view without traditional rules of evidence, cross-examination and other aspects of due process. Therefore Grand Jury material is kept secret. The dissemination of Grand Jury material--by a press whose freedom is granted to assist in maintaining our individual freedom from government (prosecutors)--has, instead, the effect of reducing rather than enhancing our freedom in relation to government.

Do you see what I mean?

From this perspective, the press as "watchdog for democracy" has not merely not barked but has eagerly gulped down morsels of Grand Jury leaks doled out by government officers. If I may make a mythological reference, the OIC prosecutors understand that to gain access to the transformational "underworld" of the media gossip-stream in a highly charged case, they need only throw a few sops to Cerberus, the dog who guards the gates of Hell.

You stated that "there are reasons why the press is generally free to report leaks, as in the Pentagon Papers case. The whole point of the First Amendment was to make the press a guardian of the public's right to information . . . "

If we view the Pentagon Papers from a "balance of needs" perspective, certainly the NY Times' release of those then-secret documents of much earlier military decision-making served the public's need to know and outweighed considerations of secrecy in the context of public discussion of the Vietnam War.

However, the Pentagon Papers are not parallel to Grand Jury leaks. The issue in the Papers was prior restraint; the contents were relevant to public policy. The issue in Grand Jury leaks is the right to presumption of innocence; the contents are not relevant to public policy.

The general public does not have a "right to know" the contents of Grand Jury proceedings. The "free flow of information" stops at the door of the secret Grand Jury--and for good reasons--not for reasons of national security (as the Government tried to argue in the Pentagon Papers case), but for reasons of personal security of individual citizens, to protect their freedom in relation to a one-sided prosecutoral government action without recourse to due process of law.

Two rights are weighed against each other: the public's right to information--and the public's right to individual privacy and preservation of personal reputation in the face of an inherently prejudicial Grand Jury process pre-indictment, a protection spelled out in Rule 6 (e) requiring strict secrecy.

In this context you responded that the press acts as "a guardian of the public's right to information, even when officials want to keep that information secret." Presumably you mean military officials as in the PP case or political officials such as the President in the current case. However, it is not "officials" who "want to keep that information secret" but Rule 6 (e) of the Federal Rules of Criminal Procedure.

We can turn this all around and look at it another way as well: In the current frenzy, the press is usurping the people's right to prosecute one of its citizens in an orderly and fair manner. The press rationalizes this by asserting "the public's right to information," as though the judicial process can no longer be trusted to work at all and injustice looms unless allegations can be quickly tried in the court of public opinion.

Distrust of the judicial process may have some merit in the minds of many, but it stands yet as our only judicial process and we have not yet Constitutionally or by statute replaced our judicial system with the news media.

We have the added ethical problem that the news media are collecting competitive commercial profits by disseminating this material as news product. When the news media receive and sell illegal Grand Jury leaks as news product, are they not placing themselves in the analogous position of being accessories to contempt of court by receiving and selling illegal contraband or “stolen goods”?

This notion has also been raised by the famed defense attorney Gerry Spense who is known for his unconventional but usually astute insights.

As a former journalist myself, I fully appreciate the importance of shielding sources. We are not suggesting that reporters "turn in" the sources of GJ or civil case leaks, although this has been proposed by others. We are simply suggesting that they not pass the leaks on and not collaborate with members of government developing a one-sided prosecution without cross-examination of evidence.

"Don't turn in but don't pass on" might be the motto of an alert editor on the news desk.

We are not looking to castigate reporters but, rather, presenting the "accessory" analogy in order to stimulate discussion to improve journalistic standards of ethics in the public interest of preserving individual freedoms.

It's possible to amend Rule 6 (e) to attach criminal consequences to dissemination of GJ leaks by anyone, including but not limited to the news media. The same possibility applies to gag-ordered civil proceedings.

However, far more preferable would be self-reflective ethical reform among the news media along these lines, if only because the news media are composed of individual citizens whose rights are just as much at stake as those who are under current scrutiny.

Don't you agree?

I hope you can take a moment to continue the discussion. Would you be so kind as to circulate our correspondence among your colleagues at CNN News for their responses as well?

Sincerely,

Jane W. Prettyman
Editor, The Real News Page

[Mr. Greenfield has not responded to this letter.]

From Gerald F. Uelman, Professor of Law
Santa Clara University, CA
April 28, 1998

Dear Ms. Prettyman,

With regard to news leaks, I recently authored the enclosed article to present an ethical perspective on leaks during pending trials. Grand jury leaks, of course, present an even more compelling case because, unlike public trials, Grand Jury proceedings are required by law to be kept secret, and leaks are punishable as contempt of court or obstruction of justice.

Warm regards,

Gerald F. Uelman

From Professor Uelman's Santa Clara Law Review article (Vol. 37, No. 4, 1997), regarding leaks from public trials:

The message we should send to the media is not to report less. It is to report responsibly, to resort to unidentified sources only when the information being reported is not protected by a court order and the source is lawfully entitled to release the information.

[Ed. Note: Clinton's sealed depo was published by the Washington Post in early March 1998 in the form of a "detailed account" of selectively edited portions. The Post did not mention sourcing whatsoever, even "unnamed sources." The depo account simply floated in the air, seemingly born from nowhere.]

. . . .

Current "shield laws" encourage the leaking of information by protecting the leaker from any consequences for his breach of confidentiality, and place no responsibility on reporters for lack of restraint in promising confidentiality to their sources [who provide illegally leaked information to them]. Somehow the irony has escaped us, that we encourage irresponsible breaches of confidentiality by guaranteeing to violators that we will protect the confidentiality of their breach. Those who have no respect for confidentiality that protects others are rewarded by our guarantee of absolute confidentiality for their treachery.

. . . .

Once protective orders are issued [by a judge as in the Paula Jones civil case], courts should rigorously enforce them. Trial participants should be severely disciplined for unauthorized leaks of information included in the protective orders. Courts can and should employ the contempt power to punish those responsible for the publication of such information [like Clinton's and Jones' depositions in the gag-ordered Jones civil case], and press shield laws should not protect the identity of those who leak it.

We wrote to Professor Uelman as follows:

This last sentence does not quite say that "those responsible for the publication of such information" means reporters and news outlets.

President Clinton’s deposition was protected under seal by a judge in the Paula Jones civil case.

Can you please clarify whether you believe “courts can and should employ the contempt power to punish” reporters/outlets for publishing information such as Clinton’s sealed depo?

The same question applies in publishing Grand Jury leaks. I am particularly interested in your comments on the media’s ethical role in publishing Grand Jury leaks, placing the emphasis not just on the leakers but also on the “leakees,” since so often the leakers cannot be identified whereas the leakees can. The parallel is the law covering burglary--receiving and selling stolen goods. Of course, we run up against the First Amendment but surely there must be some responsibility borne by the leakees, a la accessories to a crime.

While we do not want to criminalize certain journalistic practices and create a form of “Sedition Law,” perhaps the time has come to consider ethical sanctions if not legal ones. Such ethical sanctions would have to be imposed by a professional standards committee of a society of journalists. The sanction might be printed or broadcast prominently by the offending news outlet so the public is made aware of the breach of ethical standards. What do you think of this idea?

Again, many thanks for taking time with these humble questions on an important issue.

Sincerely,

Jane Wardlow Prettyman
Editor, The Real News Page

  
From Hendrik Hertzberg, The New Yorker
May 5, 1998

Dear Ms. Prettyman:

Tina Brown passed your letter and the accompanying questions [see above] on to me.

My own view is that the press should make its decisions about publishing Grand Jury leaks on a case by case basis. Journalists must decide if the news value of a given leak--that is, its value as a contribution to public information and the public debate--outweighs whatever damage the leak might do to individuals.

I certainly would not want to empower judges to impose criminal sanctions on reporters and their news organizations. Courts have too much power as it is. It's one thing for judges to bully the lawyers and jurors in their own courtroom. But let's not allow these berobed tyrants to reach into the nation's newsrooms. The thought of some pompous judge putting a reporter in jail because he (the judge) is unable to control the officers of his court chills my blood.

Sincerely yours,

Hendrik Hertzberg

  
Response from Jane Prettyman:

July 4, 1998

Mr. Hendrik Hertzberg, The New Yorker
CC: Ms. Tina Brown

Dear Mr. Hertzberg,

In your May 5, 1998 letter to me, I’m afraid you focused upon the criminalization of media dissemination of Grand Jury leaks when, in fact, we were proposing a shake-up on the ethical standards level.

Quoting from my letter to Jeff Greenfield, copied to you:

We are not suggesting that reporters "turn in" the sources of GJ or civil case leaks, although this has been proposed by others. We are simply suggesting that they not pass the leaks on. Don't turn in but don't pass on" might be the motto of an alert editor on the news desk.

We are not looking to castigate reporters but, rather, presenting the "accessory" analogy in order to stimulate discussion to improve journalistic standards of ethics in the public interest of preserving individual freedoms.

It's possible to amend Rule 6 (e) to attach criminal consequences to dissemination of GJ leaks by anyone, including but not limited to the news media. The same possibility applies to gag-ordered civil proceedings.

However, far more preferable would be self-reflective ethical reform among the news media along these lines, if only because the news media are composed of individual citizens whose rights are just as much at stake as those who are under current scrutiny.

Don't you agree?

To this you responded by saying:
I certainly would not want to empower judges to impose criminal sanctions on reporters and their news organizations. Courts have too much power as it is. It's one thing for judges to bully the lawyers and jurors in their own courtroom. But let's not allow these berobed tyrants to reach into the nation's newsrooms. The thought of some pompous judge putting a reporter in jail because he (the judge) is unable to control the officers of his court chills my blood.
Despite my not recommending criminal sanctions and your over-reacting to my not recommending criminal sanctions, events may be getting ahead of both of us. On May 5, the same day you wrote your letter, the Washington DC Circuit Court of Appeals made a ruling regarding Rule 6(e) about which John R. Fleder wrote in the National Law Journal on June 29, 1998, page A-23:
[E]arlier this year, the media requested that it be given access to district court hearings, orders and pleadings relating to Mr. Starr's Grand Jury investigation of the Clinton-Lewinsky matter. In its response, the D.C. Circuit noted that Grand Jury proceedings and records have been closed to the public since the 17th century. It concluded that neither the media's First Amendment rights nor Rule 6(e) entitle the press to information about "matters occurring before the Grand Jury."

In Re: Motions of Dow Jones & Co., 1998 WL 216042 (D.C. Cir. May 5, 1998).

The Washington DC Circuit may not agree with your "view" nor that of Mr. Greenfield.

Your feelings are not backed up by argument, except to assert a “power of the press” which is conclusionary. I too believe that “Journalists must decide news value” of various reports. However, I do not believe that Grand Jury information is among those “reports” which journalists should have free reign to "decide news value" and willy nilly disseminate.

The reasons I believe this are as follows: 1) the Grand Jury process is highly prejudicial by its very nature; “evidence” and testimony developed in the Grand Jury process are presented solely by prosecutors and not subject to cross-examination, rebuttal, or traditional rules of evidence. 2) The "value" of Grand Jury evidence and testimony "as a contribution to public information and the public debate" is, from this perspective, nil, prejudicial and misinformational. 3) Leaks of Grand Jury material are, by their very nature, selective, slanted and extremely difficult for the reporter to verify for accuracy. Such valueless information is not fit to print and I daresay it would not "outweigh whatever damage the leak might do to individuals." It would simply be damaging to individuals. Period. This is why Rule (6)e's secrecy provision was crafted in the first place.

Let me make myself clear. While we do not want to criminalize the journalistic practice of publicly releasing GJ material or create a form of “Sedition Law,” perhaps the time has come to consider ethical sanctions to deal with press dissemination of GJ leaks. Such ethical sanctions would have to be imposed by ethical standards committees of professional societies of journalists. The sanction might required to be printed or broadcast prominently by the offending news outlet so the public is made aware of the breach of ethical standards.

What do you think of this idea?

I hope that you catch my drift because if journalists do not police themselves on this matter on an ethical level, I'm afraid those "berobed tyrants" you so much detest will step in and establish exactly those criminal sanctions that neither of us wants to see.

Sincerely,

Jane W. Prettyman
Editor, TRNP

From Anthony Lewis, New York Times, May 6, 1998

Dear Ms. Prettyman,

I am as curious as you are about the position of the press on these matters, and as skeptical. So you can put me down as a sympathizer.

I have not directly addressed in my column the questions you have raised. It is hard to do, since reporters and editors on my own paper are part of the issue. But in internal conversations I can and will raise your questions.

Sincerely yours,

Anthony Lewis

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