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 WashingtonPost 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.