Author: Dan Kennedy

Several people have raised questions as to why the local press didn’t blow the whistle on U.S. Attorney Rachael Rollins over what the Justice Department has characterized as her attempts to influence the Suffolk County district attorney’s race between interim DA Kevin Hayden and Boston City Councilor Ricardo Arroyo. Rollins favored Arroyo over Hayden, who was the eventual winner and is now the elected district attorney.

As documented in the inspector general’s report, Rollins leaked like a broken faucet to The Boston Globe and the Boston Herald in an attempt to influence their coverage. The report makes clear that was a serious ethical violation, and that it has possibly landed her in legal trouble as well. Isn’t that a story in and of itself?

Well, now. The relationship between journalists and sources is often not pretty, and this is one of those rare instances of the public being given an inside look. Sources have all kinds of motives, sometimes less than pure. Reporters want to get the story, and they generally don’t worry much about whether their sources are doing the right thing.

As Bruce Mohl and Michael Jonas write at CommonWealth: “These sorts of back-channel communications are commonplace in the world of political journalism, where reporters and political figures often use each other for their own ends. But rarely do these exchanges come to light.”

The most famous example I can think of is Daniel Ellsberg, who leaked the Pentagon Papers to The New York Times and The Washington Post. The journalists who received those documents knew that Ellsberg was breaking national-security laws. But rather than turning him in, they published the government’s own secret history of the Vietnam War, thus performing a public service. The government later prosecuted Ellsberg, although the case fell apart. Of course, the motives in the Rollins case were hardly that grandiose.

Keep in mind, too, that reporters in the Rollins case were unaware of the full extent of Rollins’ alleged wrongdoing. Probably the most damaging allegation to come out of the Justice Department report is that Rollins is said to have lied under oath when she was asked by investigators about leaking a confidential document to the Herald. Journalists had no way of knowing about that until Wednesday, when the government released that report.

Finally, there’s the matter of what would have happened if the press had decided to report on Rollins’ leaking. There’s actually a 1991 Supreme Court case that speaks to this — Cohen v. Cowles Media. In that case, a political operative named Dan Cohen leaked information about his client’s opponent to the Star Tribune and the Pioneer Press, papers in Minneapolis and St. Paul; the Star Tribune at that time was owned by Cowles Media and the Pioneer Press by Knight Ridder. The reporters were so appalled at Cohen’s attempt to get them to write about a politician’s petty crimes that they decided the real story was Cohen’s sleazy tactics.

Cohen sued at having been outed, and the court sided with him, citing the doctrine of promissory estoppel: Cohen acted the way he did on the belief that his anonymity would be respected. Essentially, the reporters violated a verbal contract with Cohen, and a $200,000 judgment Cohen had been awarded in state court was reinstated. Justice Byron White’s decision began:

The question before us is whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper’s breach of a promise of confidentiality given to the plaintiff in exchange for information. We hold that it does not.

I don’t know what federal or Massachusetts law says about promissory estoppel, but it seems likely that reporters would have run afoul of their legal obligations if they had promised Rollins anonymity and then blew her cover. In any case, there’s no reason to think they even considered doing such a thing. Nor should they have. Promising anonymity to a source is something that should not be undertaken lightly, but once that agreement is in place, no journalist should even consider violating it.

Correction: This post originally misidentified the owner of the Pioneer Press in 1991.

Earlier today the U.S. Department of Justice’s Office of the Inspector General issued a 155-page ethics report regarding U.S. Attorney Rachael Rollins, who announced Tuesday that she would resign from her position.

Much of the report details Rollins’ alleged attempts to influence the 2022 Democratic primary in the Suffolk County district attorney’s race between her successor, interim DA Kevin Hayden, and his challenger, Boston City Councilor Ricardo Arroyo. Hayden, who had been appointed on an interim basis by then-Gov. Charlie Baker, defeated Arroyo and is now the elected DA.

The campaign was dominated by two major series of articles in The Boston Globe — one involving Hayden, who reportedly had slow-walked an investigation into serious problems with the MBTA Transit Police, the other pertaining to allegations of sexual assault brought against Arroyo. The Justice Department’s report details Rollins’ attempts to provide information to the Globe and the Boston Herald that would harm Hayden and help Arroyo.

The report is devastating in places, concluding that Rollins “knowingly and willfully made a false statement of material fact under oath when she testified on December 6 that she was not the federal law enforcement source cited in the Herald article and that she did know who the source was.” In that article, the Herald reported that Hayden could face a federal investigation stemming from the Transit Police matter.

Because the report provides a fascinating inside look at how the journalistic sausage is made, I’m reproducing the inspector general’s analysis of the evidence, which can be found on pp. 69-73. The report also includes mountains of information about the nature of Rollins’ contacts with the Globe and the Herald, which the Justice Department obtained voluntarily from Rollins’ cellphone. No journalists were asked for information, in accordance with Justice’s guidelines.

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Based upon the facts described above, the OIG [Office of Inspector General] concluded that U.S. Attorney Rachael Rollins used her position as U.S. Attorney in an effort to influence the outcome of a partisan political election, namely the September 6, 2022 Democratic primary election that would select her likely successor as Suffolk D.A. We further found that Rollins took an active part in Ricardo Arroyo’s primary campaign for the Suffolk D.A. position in an effort to help Arroyo defeat Interim D.A. Kevin Hayden. We concluded that, despite her assertion otherwise, Rollins was very much trying to put her “finger on [the] scale” in the race for D.A., a race that certain local media reports suggested was a referendum on the policies and programs Rollins instituted during her own tenure as Suffolk D.A. — with Arroyo being seen as someone who was more supportive of, and likely to continue, her policies than Hayden. Even Arroyo, moments after he lost the primary election to Hayden, sent a message to Rollins stating that her “legacy work deserved better.”

Additionally, we determined that days after Hayden prevailed in the September 6 primary election, Rollins sought to damage Hayden’s reputation by leaking to the Herald Reporter non-public and sensitive DOJ [Department of Justice] information that suggested the possibility of a federal criminal investigation into Hayden, a matter from which Rollins was recused. Finally, we concluded that Rollins lacked candor during her OIG interview when discussing her communications with the Globe Reporter and with the Herald Reporter, and falsely testified under oath when she initially denied that she was the federal law enforcement source who provided non-public, sensitive DOJ information to the Herald Reporter about a possible Hayden criminal investigation. Rollins only admitted to being the source during subsequent testimony after Rollins produced, in response to the OIG’s requests, relevant text messages, which definitively showed that Rollins had indeed been a source for the reporter. Continue reading “DOJ report on Rachael Rollins provides an inside look into journalistic sausage-making”