Spring 1998

Where Are the Stories Behind the Leaks?

By James S. Doyle
Twenty-five years ago when I was a special assistant to Watergate Special Prosecutor Archibald Cox, one of my daily tasks was to help him figure out the news. Why were certain Watergate stories on page one or leading the evening broadcasts? Who were the anonymous sources and what might be their motivations? I had been a reporter for The Washington Star covering Watergate and knew most of the players, so I could offer an educated guess as to what was going on and who stood to benefit or lose.

Archie Cox is a wise and sophisticated man, and an old Washington hand, but reading the news from Washington can be an insider’s game best left to those who are members of the priesthood. He had more important things to do and so he designated me to decode the news each day. Some days I could only be embarrassed for my profession.

And those were the good old days. In the case of Kenneth Starr versus the Clinton White House we readers and viewers have been cast adrift by some of the best reporters and editors in the business. Often it’s not possible for the most discerning reader or listener to sort out the story and to get the reports necessary to do so. Only the reporters and editors know the answers to some questions, such as whether the Office of Independent Counsel is leaking like a sieve, violating the professional standards of federal prosecutors and perhaps the criminal laws as well. The journalists who know aren’t telling and the press may pay a steep price for these sins of omission. It’s one thing for the reporter—recipients of the leaks to clam up. It’s quite another for the best editors in the business to avert their eyes and act like there is no story here.

Leaks from a prosecutor are not the same as leaks from a Congressional committee or your average executive department. This is true especially of the prosecutors appointed under the Independent Counsel Act. These are law men with unlimited resources, no practical check on their legal powers and no realistic accountability to higher-ups in the criminal justice system. If they decide to flout legal ethics and the federal rules of criminal procedure, to destroy a witness or a target with prejudicial leaks, they can do it if they are protected from exposure. In effect there are no higher-ups, just the court of public opinion.

Archie Cox, in a similar but less powerful role, insisted he must have the authority to report to the public from time to time. He understood that public disclosure of how he was proceeding was necessary to maintain public confidence, though he would not discuss the titillating (and damaging) details of any investigation headed for the grand jury.

He held several press conferences. He met with the reporters assigned to cover the prosecutor’s office. He met with groups of columnists and commentators to explain his actions. He met with editorial writers from the great newspapers. And in the end his report to the public at a nationally televised press conference on Saturday, October 20, 1973, set the stage for his firing, the firestorm that followed it and the capitulation of the Nixon White House in delivering the taped evidence that, 10 months later, resulted in the resignation of the President.

In the present case there are once again serious questions about a President, once again suspicions of obstruction of justice. There are profound and fundamental questions about fairness in the administration of justice. Those questions have become two-sided, casting great suspicion not just on “all the President’s men,” but on all the prosecutor’s men and women as well. Reporters and editors may recognize this, but they are not delivering the goods. The public has formed opinions about the President and the prosecutor—and about the press. It mistrusts all three. In the case of the President, the public seems to be saying that it doesn’t affect his job performance. (That could change quickly.) In the case of the prosecutor and the press, public mistrust goes to the heart of job performance. The damage will be hard to repair.

The Committee of Concerned Journalists has made the point that anonymous sourcing—and no sourcing—has bedeviled the Monica Lewinsky story from the outset. Unevaluated leaks and unsubstantiated rumors have been passed along in a manner most news organizations wouldn’t tolerate in other situations. Some of the best—The Wall Street Joumal news pages for example—have victimized themselves with retracted stories about grand jury testimony. Good judgment—the courage not to publish—has been overtaken by the urge to get out a story. That is understandable even if sometimes unforgivable.

But when it comes to explaining the Independent Counsel’s office, the press has been circumspect because there is a conflict of interest. These prosecutors say little publicly but, apparently, a great deal not for attribution.

For example on February 6 both David Kendall, the President’s lawyer, and Rep. John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, issued lengthy compilations of news report excerpts that they contended demonstrated impropriety on the part of Kenneth Starr or his staff. Kendall held a well-covered news conference to make his charges and handed out 12 pages of examples. Conyers handed out 19 pages of similar material. Starr issued a sharply worded rejection of Kendall’s accusations.

I searched the networks and the national newspapers for the examples cited. There was plenty of coverage of the charges and countercharges, including assertions by Scott Pelley on the CBS Evening News and John Donvan on ABC Nightline that the White House could well be leaking self-damaging material to help them mount an offensive against Starr for leaking. (Donvan reported March 4 that “there is no solid evidence that Kenneth Starr has leaked illegally to reporters.” But none of the detailed examples of leaks attributed to sources close to the prosecutors was reported. On ABC Donvan characterized the detailed allegations as “basically a journey through the headlines of the past two weeks.” Donvan told me, “Frankly I don’t know who leaked, but the point of my report was to mention several possibilities, including the White House. Kendall’s accusations were strong. As I said in the piece they put a criminal cloud over Starr’s office. When I looked at his evidence, the criminality wasn’t there.”

As I worked on this piece I talked with reporters who told me various reasons why the specific examples cited by Kendall and Conyers were not detailed in the press—old news, irrelevance, not persuasive. But when a friend sent me copies, I was persuaded that either tens of reporters were dishonestly attributing information to sources close to the Independent Counsel, or that prosecutors in Starr’s office were discussing the case in detail with reporters, improperly and in some cases recklessly. I think Kendall and Conyers have made a credible case and backed it up with specifics.

There are two big stories here. From the outset the press has reported juicy details about the President and Monica Lewinsky, much of it hearsay. But when evidence of specific news stories pointing to prosecutorial misconduct is laid out by two reputable public figures, the details did not make it into print or onto the air.

You can read and hear lots of accusations that Starr’s office is out of control with leaks. Often they come from commentators whose judgment and integrity I would vouch for—Anthony Lewis of The New York Times, Albert R. Hunt of The Wall Street Journal. There has been at least one analytical rebuttal to attorney Kendall’s assertions from Richard Harwood in The Washington Post. There have been editorials on both sides of the issue. But I can’t find a single news story with facts on the subject, just charges and countercharges. Are news organizations willing participants in a cover-up?

Jackie Judd of ABC News has been the recipient of some sensational stories in the Lewinsky case. When Peter Jennings asked her on camera about whether the prosecutors were leaking improperly, she responded that she didn’t know about that; her experience was that everyone in Washington leaked.

But every prosecutor, and every prosecutor’s office, doesn’t leak. Where were the leaks from Robert Fiske’s office when he was the Whitewater Special Counsel? The idea that leaks in the criminal justice system are just the normal way of doing business is a dangerous one for our society. Ask Richard Jewell. That’s why editors should be treating the suspicion of prosecutorial misconduct as an important story, worthy of more than suspicious charges and countercharges. I know this is not easy and that news organizations have a strong interest in receiving the leaks. But the serious press ought to wrestle with this problem. Editors need the courage to really cover the story, and give the gory details, even when they threaten to unmask sources. In this case the public has made its judgment without much help from the press, and it is a damning one. I would not be surprised if we end up with new talk about an American version of the British Official Secrets Act.

I met Archie Cox for the first time on Memorial Day in 1973, when he met with a group of Nieman Fellows who were in Cambridge for a reunion. He was outraged by the stories in that weekend’s newspapers that spoke about the “theory of the prosecution” under which the original Watergate prosecutors—Earl Silbert, Seymour Glanzer and Don Campbell—were proceeding. “I promise you there will be no such stories from me or my assistants,” he said. Within weeks, Silbert, Glanzer and Campbell were history.

By mid-june I was working for Archie, and from the outset he made it clear to the attorneys he hired that leaks of investigative material would be a betrayal of their honor and that of the office. He didn’t threaten anyone. He led by example. He held news conferences and background sessions and discussed legal points. But he didn’t leak stuff from the grand jury—and it didn’t leak from his office while he was there. Cox’s honor and motives were attacked but never seriously questioned by the public because of how he acted.

After he was fired, in the heat of a momentous and fast-breaking story (with lots of leaks from everywhere for a short while), newspapers reported that Nixon had ordered Attorney General Richard Kleindienst to bag the ITT case.* Cox was conscience-stricken because this was an incriminating fact that he had known for months and had recently shared with Senators Edward Kennedy and Philip Hart. Cox believed that he had violated a confidence from Kleindienst’s attorney that resulted in a leak of grand jury material. (It later turned out that Cox had not been the source, even indirectly). He went to the Senate judiciary Committee, admitted his indiscretion and testified in public that he was guilty of an inexcusable breach of confidence—just as the Nixon White House was charging. This was at a time when he was out of office and a national hero. He risked all of that to clear his conscience. (All of this is in the recent book “Archibald Cox: Conscience of a Nation” by Kenneth Gormley.)

Do you see any conduct of that level of integrity anywhere in the present story? Prosecutors have to accept responsibility for their acts. If cops sometimes lie on the stand to “even the odds,” and prosecutors swear affidavits that they didn’t leak when they did, how does that square with pursuing a case where the main charge is falsification? What’s the rush to get the damning details out? This case isn’t going away, and it’s not going to be lost because prosecutors were slow to get their facts before the public. The case will unwind, and as it does many will rationalize the lapses on the parts of the press and the prosecutors. But the end won’t justify the means. Success won’t erase the sins, nor restore credibility.

They can do their jobs without leaking. If it makes it tougher, so be it. Under Cox we erred on the side of caution when it came to the grand juries. You can’t keep reporters out of the courthouse and you can’t be sure that grand jury witnesses won’t be accosted and humiliated. But you can try by making it a point not to divulge when a witness will appear and you can bring them to the building through the garage. There were no instances of secretary Betty Currie running a gauntlet coming from the grand jury, and President Nixon was interviewed by the grand jury in the White House without word getting out.

I remember the day Bob Schieffer of CBS called my office and asked what time Bob Haldeman would be going before the grand jury, and where. I told Schieffer in effect to take a hike, that we weren’t going to discuss grand jury stuff period. “What in the hell are they paying you all that taxpayer money for?” Schieffer responded. But witnesses went before the Watergate grand jury without the feeding frenzy of press out front, and stakeouts at the prosecutors office were deliberately not rewarded with visuals and sound bites. (When the trials started, photographers hit Mrs. Haldeman in the head with a camera in front of the court house. I’m proud I never contributed to that stuff.)

During Watergate I saw misleading reports about sources. A memorable case was Dan Schorr, then with CBS News, who was covering the Congressional committees. He did a “standup” in front of the prosecutor’s office one day in what I thought was a clear attempt at “misdirection,” implying we’d been the source, perhaps to protect the real sources. (Counsel Sam Dash had warned his staff about leaking to Schorr.) I didn’t call Dan on it at the time. When we talked recently we agreed it could have been less than I thought, a producer’s attempt to vary the visual images. “It would not have been consistent with my method of operation to stand somewhere in order to deliberately mislead the audience,” Schorr said.

Like the leaks, the present reports may not mislead the audience deliberately. But they further the confusion and they raise ethical questions. If editors know what Scott Pelley and john Donvan and others indicate—that the grand jury leaks are coming from the White House and its allies and not the prosecutor’s office—they need to nail that story. If it’s misdirection on the part of reporters, editors should be taking the unsubstantiated accusations out of the copy. Otherwise the public is right to say it’s just charges and countercharges and not to be believed.

As a news consumer I’d like to know if persons from the independent counsel’s office have leaked damaging material about the Monica Lewinsky investigation to reporters in violation of their ethical obligations. It’s an important question because it may go to the heart of our justice system and the good faith of the prosecutors. It may answer the question, can and will the system work?

Jim Doyle, Nieman Fellow 1965, covered government for The Boston Globe for nine years and was a national reporter for The Washington Star when Archibald Cox named him a Special Assistant to the Watergate Special Prosecution force. After two years in the job he became Deputy Washington Bureau Chief at Newsweek for eight years. For the last 14 years he has been with Army Times Publishing Company, where he is Executive Editor.

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