Off guard: Prosecution by newspaper

By Joel Thurtell

Motives are important, even in the newspaper business.

And in newspapers, business is a prime motive, though often unspoken.

There’s that glass wall between business and editorial, right? Advertising people don’t talk to editors and vice versa. Reporting goes along untrammeled by thoughts of something as prosaic as the bottom line.

In other words, selling newspapers has nothing to do with the gathering and dissemination of news.

Right.

Let’s see — what other malarkey can I trundle out?

Selling papers is what it’s all about, of course. No reporter, no editor is unaware of how well or how poorly a particular story helps spike newsstand sales.

Was Ben Bradlee ignorant of those bottom line figures when he spearheaded the Washington Post coverage now known as “Watergate”?

For a generation, journalists and the public have learned the Post’s orthodox version  of how two enterprising young reporters, Bob Woodward and Carl Bernstein, intrepidly investigated the break-in at the Democratic offices in the Watergate complex in August 1972 and how the pair, led by Bradlee, relentlessly pursued criminal wrongdoing right into the White House.

But there is another version, discussed by George Friedman in stratfor.com on December 22, 2008. It’s a view with similarities to a case here in Detroit involving the Detroit Free Press and its anonymous Justice Department sources in the case of former federal prosecutor Richard Convertino.

In this alternative view of Watergate, Woodward and Bernstein were a pair of ambitious but inexperienced reporters ravening for a hot story. That story was leaked to them by Mark Felt, aka “Deep Throat,” the number two man at the FBI who had an ax to grind against President Richard Nixon and who was effectively in control of the FBI.

According to this interpretation of the Post’s Watergate coverage, the newspaper did not so much investigate as serve as a pipeline between a less-than-altruistically-motivated FBI honcho and the public whose opinion he wanted to influence. Felt could have sent his findings to Congress or the Justice Department, but instead he gave them to the Post. Some might argue that Congress in the early days after the Watergate break-in would not have responded and needed the jolt provided by news coverage. No doubt about it, though, the act of leaking left Felt in control of the flow of information. He could give the Post what served his purposes and suppress whatever did not. And the Post could then in its own arbitrary fashion weed out what pieces of the story did not serve its own purposes. 

We who had no control and no knowledge — until recently — of this game of quid pro quo in the so-called marketplace of ideas must ask ourselves whether Felt’s behavior and that of his newspaper vassals comports with our idea of how an open democracy should work. Due process under law — guaranteeing everyone a fair trial —  is a vital part of the U.S. Constitution, as important if not more so than the First Amendment upholding free speech.

In the Free Press-Convertino case, it appears that Justice Department officials decided to smear Richard Convertino, once an ace assistant U.S. attorney in the Detroit office but by early 2004 a man seen as a betrayer of his bosses for having spoken critically about them before Congress. Planting a damaging story in the Free Press shortly before bringing indictments would, so the Justice Department honchos may have hoped, tarnish Convertino’s reputation enough that it would be easy to persuade a jury to convict him.

Bad news for the Justice Department folk trying to orchestrate Convertino’s ruin: A jury acquitted Convertino. That caused a big problem both for the Justice Department and for the Free Press, where star reporter David Ashenfelter has been ordered by U.S. District Judge Robert Cleland to reveal his DOJ sources to Convertino. Convertino is suing the government for violating the federal Privacy Act, but according to Judge Cleland’s August 28, 2008 ruling, some DOJ people may have broken the law by giving confidential information to the Free Press, and further, wrote Cleland, DOJ people who signed affidavits swearing they were not Free Press sources might face perjury charges if it turns out they in fact were the leakers. According to the judge, by refusing to name names, Ashenfelter is shielding potential criminal activity. The First Amendment provides nobody, including journalists, a shield against being witnesses in criminal cases, the judge wrote.

In the January 22 Detroit Free Press, the paper at last clearly acknowledges that the First Amendment is not the shield it had earlier claimed. The paper finally has explained Ashenfelter’s plight: He must take refuge in the Fifth Amendment’s guarantee of his right not to incriminate himself. Convertino’s lawyers want Judge Cleland to hold the reporter in contempt of court for refusing to name names. Convertino has asked the judge to fine Ashenfelter $5,000 a day until he relents and gives up his sources.

“Citing accusations by Convertino and his supporters that Ashenfelter conspired with federal officials to criminally release private information, Ashenfelter’s lawyers said he has a reasonable fear of being prosecuted for his reporting,” according to the Free Press.

“Ashenfelter’s lawyers contend he did nothing wrong in accurately reporting in Januaray 2004 that Convertino was under invetigation for his handling of a Detroit sleeper-cell case,” the Free Press reported. “The lawyers note, though, that Ashenfelter nevertheless fears prosecution because the Justice Department has prosecuted others for making public what the government contends is confidential records on terrorism probes.”

Nice of the Free Press finally to come clean about this, although I would add that from my reading of Judge Cleland’s ruling, the issue is not confined only to terrorism cases, but covers the disclosure of confidential information relating to federal criminal investigations.

The motive for the source in Watergate was revenge, according to Friedman.

Revenge, or maybe discipline of a noncompliant prosecutor, seems to be the crux of the Convertino case. It’s important to remember that Convertino was the whistle-blower, not the leakers.

Felt was no whistle-blower, since he was in charge of the FBI. The Post staffers knew it. But they kept the name of their source — and therewith his vindictive motive — secret. Instead, they fed the public the line of idealism — the newspaper as public servant, revealing the truth about officialdom. 

We’ve been hearing the same sack of tripe from the Free Press. If the Free Press were truly a public servant, I should be able to file a Freedom of Information Act request with them, asking that they provide the names of their sources. Oh yes, how about giving us the sources for those text messages that landed former Detroit Mayor Kwame Kilpatrick in a jail cell? How about letting readers know ALL the facts so they can judge whether the beginning of that monumental work of journalism had, perhaps, its own seamy side.

We have to ask ourselves when anonymous prosecutorial sources are used, whether the newspaper is really a public servant. Or were the newspapers willing stooges and accomplices in a calculus of character assassination?

Refusal to provide full transparency by withholding sources’ names and the manner in which leaked information was obtained make the newspapers’ claims of public service absurd.

Newspapers can be depended on to make the claim, but in order to make this line credible, the papers have to censor themselves. They hold back the vital facts that would allow readers to judge from complete information. Thus, we didn’t learn the name of Deep Throat until decades after Watergate. Decades after the information could have helped us understand the real motivations in the case.

We won’t learn the names of the Free Press Convertino sources, either, unless the judge hits Ashenfelter with jail time, heavy fines or both. And by the way, unless the judge orders Ashenfelter to pay the fines out of his personal bank account, the cost may simply be covered by the Free Press and have no coercive effect.

Another by-the-way: The Free Press refers to “Ashenfelter’s lawyers.” I don’t believe that. Unless the reporter is paying the lawyer’s fees from his personal funds, the attorneys are working for the newspaper. That is a fact that reporters rarely understand. If the newspaper’s interests diverge from those of the reporter, it will become evident who the attorneys are working for. I would advise Dave Ashenfelter to seek a second opinion.

That “Ashenfelter’s lawyer” boilerplate is just one of many ways newspapers deceive people into believing they are benevolent institutions working for the public welfare. Newspapers scream for full disclosure from public servants, yet they themselves hide those parts of the truth that may reveal the less-than-idealistic motives for their cover-up. They are, or would like to be, money-making organizations. That is Fact Number One about newspapers.

Watergate and now Convertino are huge arguments against the use of anonymous sources, but newspapers are so intent on hearing their own back-patting and self-congratulation, via self-serving trumpeting in articles whose content they control and through the journalism awards system, that they rarely hear and less frequently discuss this downside.

Hard to write that letter in support of a public service Pulitzer if your source is a vengeful destroyer of character and you the journalist aid and abet him.

Newspapers can be powerful locomotives for exposing corruption, a role that few other institutions in society are equipped to play. But their power to expose — when used carelessly, thoughtlessly — can be its own form of corruption.

Who elected editors and reporters to be watchdogs?

At its best, it is a noble undertaking. In reality, though, few newspapers are willing regularly or even sporadically to take on this role. And what’s more, they too often are unwilling to invest the time a thorough investigation — without recourse to anonymous sources — would require. More often, they let themselves be spoon-fed by authorities hiding behind the supposed need for anonymity. Beat reporters who operate this way ensure their paper will receive its share of scoops — the kind of stories that make a big splash, sell newspapers, garner awards, boosting careers and salaries.

In a broad, blunderbuss sense, the behavior of prosecutors and news media resembles — in a very non-specific way — jury-tampering.

What is the remedy? Well, there are ways to put an end to trial-by-newspaper. It happened in Great Britain in the 19th century when the press got out of hand in reporting, not necessarily accurately, the details of sensational crimes.

Justice was being denied to criminal defendants. The solution for the Brits was to declare criminal proceedings “sub judice,” a Latin term meaning they’re “under judgment” and reporting on them is forbidden. Not only forbidden, but subject to criminal sanction against anyone — sources, reporters, lawyers, newspapers — who violates the law.

Can you imagine the screams of self-righteous indignation, the howls of First Amendment-inspired outrage, as newspapers geared up their massive propaganda apparatus to shout down the idea of introducing sub judice into the United States?

There is an alternative: Stop buying their rags.

By the looks of it, the public rejection has been happening for decades as newspaper circulation has slipped steadily, forcing layoffs, buyouts, cutbacks and quality reductions that inspire further rejection by readers and further cutbacks in quality in a downward spiral seeming to point to one fate for newsprint operations — extinction.

Newspapers in America are struggling. Their future is uncertain. They want people to believe that a nation without strong newspapers will somehow be a less democratic country.

I wonder how truly democratic a country is that exalts a certain kind of business, the news media, and that assigns that for-profit industry a vigilante status to try people in ink or over the air before anyone is charged, let alone a jury empanelled.

If we suddenly find ourselves one morning without newspapers, this scummy face of the business will be no loss.

Drop me a line at joelthurtell(at)gmail.com