Theomania

Jay Fitzgerald’s got most of the relevant links this morning, so I’m not going to repeat them all. There seems to be little doubt that Dan Shaughnessy’s column in the Sunday Globe was a major factor in Theo Epstein’s decision to quit as Red Sox general manager. For support, I cite a neutral observer, Sean McAdam of the Providence Journal, who has an analysis today at ESPN.com. McAdam writes:

A column in the Boston Globe on Sunday, which Epstein deduced had been leaked by Lucchino or others on the CEO’s staff, intimated that the general manager had been at fault when a proposed multi-player deal with the Colorado Rockies fell through at last summer’s trade deadline.

(In truth, ownership made Epstein cancel the agreed-upon deal, though Lucchino reportedly later blamed the mess on [Epstein’s then-assistant Josh] Byrnes in talks with Rockies ownership.)

The column further stated that Lucchino had accepted public blame for the fallout to spare his general manager further embarrassment.

This incensed Epstein and, along with other anecdotal evidence, caused him to reconsider working under Lucchino for another three seasons. By late morning Monday, he had made up his mind: His tenure with the Red Sox was over.

This isn’t spin from the Globe’s archrivals over at One Herald Square. And it makes laughable Shaughnessy’s assertion today that “it seems pretty ridiculous that Theo would break away from a man he worked with for 14 years because of a few lines he read in a column in the Sunday Globe.” In fact, that’s a grossly oversimplified version of what McAdam is reporting. It wasn’t the column that made Epstein quit; rather, it was the fact that the column contained clear evidence that Epstein’s rift with Sox president Larry Lucchino couldn’t be mended.

Which leaves us with some questions:

1. Even if you accept that Shaughnessy’s column helped push Epstein out the door, does it then follow that this has something to do with the reality that the Globe’s parent company, the New York Times Co., is a 17 percent owner of the Sox? That’s what everyone seems to think at the Herald and on WEEI Radio (AM 850), but I’m not sure how one follows from the other. Shaughnessy, after all, just did a huge amount of damage to the Times Co.’s investment.

Lucchino obviously likes to suck up to the Globe — but that could be more because the paper is New England’s dominant media institution than because they’re business partners. Still, this is an awkward relationship given that such questions inevitably come up at times like this. Naturally, the Herald can’t resist doing a sidebar today on the “Cozy Sox-Globe ties.”

2. Should Shaughnessy have refrained from writing his Sunday column, with its over-the-top spin in favor of Lucchino and against Epstein? I’m not going to suggest that Shaughnessy should consider his words carefully lest they damage the team. (That’s what he’d do if he really were concerned with protecting his employer’s business interests.) But Shaughnessy appears to have used his column in order to advance Lucchino’s version of events without taking into account the possibility that he was getting spun. Still, Bruce Allen is surely right when he says, “It is clear though, if Shaughnessy didn’t write the article on Sunday, someone else would have.”

3. Might Theo still be talked into staying? The line of the day goes to Toronto general manager J.P. Ricciardi, who tells the Globe’s Gordon Edes, “I’ll believe it when I’m at the general managers’ meetings next week in Palm Springs and he’s not in his chair. It’s like a Mafia hit. You don’t believe it until you see the guy at the funeral.”

4. Will Shaughnessy show up on Mike Barnicle’s radio program this morning?

5. What would I learn from Peter Gammons, whose wisdom would be available to me if only I were a paid subscriber to ESPN.com?

A departure foretold

Tony Massarotti’s Boston Herald column of last Thursday looks huge following the stunning resignation of Red Sox general manager Theo Epstein. Massarotti accused Sox president Larry Lucchino of using the team’s chummy relationship with the Boston Globe (whose parent corporation, the New York Times Co., owns 17 percent of the Sox) to smear Theo.

I don’t pretend to know all the ins and outs of the Globe-Sox relationship, and it strikes me that Massarotti’s take is overheated in parts. But, hey, Theo’s gone, and Massarotti’s Herald colleague Michael Silverman now reports that Lucchino’s sweet nothings in Globe columnist Dan Shaughnessy’s ear had something to do with Epstein’s decision to leave. Silverman writes:

Epstein had come close to agreeing to a deal Saturday evening but had not officially conveyed acceptance of it. On Sunday, he began having serious misgivings about staying on. A leading contributing factor, according to sources close to the situation, was a column in Sunday’s Boston Globe in which too much inside information about the relationship between Epstein and his mentor, team president and CEO Larry Lucchino, was revealed — in a manner slanted too much in Lucchino’s favor. Epstein, according to these sources, had several reasons to believe Lucchino was a primary source behind the column and came to the realization that if this information were leaked hours before Epstein was going to agree to a new long-term deal, it signaled excessive bad faith between him and Lucchino.

Here, by the way, is the Shaughnessy column in question. Among other things, Shaughnessy pokes fun at Massarotti without naming him. What a lovely little newspaper war. And check out Hub Blogger Jay Fitzgerald’s take. (Jay’s a Herald business reporter. Yes, Boston is a small town.)

The definitive take on the Sox and the Globe was written last summer by the Phoenix’s Ian Donnis. You can read it by clicking here.

It’s a good thing the Red Sox won the World Series last year. It’s starting to look like it will be another 86 years before they win again.

Unless there’s one more act to be played out in this drama. Can I hope?

Mass. shield law proposed

Lawyer and journalist Robert J. Ambrogi, who writes the Media Law blog, has passed along the full text of a proposed Massachusetts shield law filed last week by state Senate president Robert Travaglini. I’ve uploaded the text as a PDF file; click here.

Ambrogi, who helped draft the proposed law, writes:

The bill is broad in its definition of who it covers, in order to include bloggers and freelance reporters. It defines coverage to include any person who “engages in the gathering of news or information” and “has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.”

As I’ve argued before, this is the correct approach, as it protects journalism rather than journalists. If a blogger is engaged in journalism, she or he ought to have just as much protection as a staff reporter for a large news organization.

The proposed law would protect journalists from having to give up their confidential sources, notes, unused video and other materials they amassed in the course of doing their jobs. But the bill is also sensitive to the fact that the courts have never recognized a constitutional right for reporters not to testify in a legal proceeding. In addition to an exception for terrorism investigations, the bill lays out this balancing test that a judge would have to use before compelling a journalist to testify:

(1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the Commonwealth that has the power to issue a subpoena;

(2) the news or information could not be obtained by any alternative means; and

(3) there is an overriding public interest in the disclosure.

This is precisely the balancing test proposed by Justice Potter Stewart in the U.S. Supreme Court’s Branzburg v. Hayes decision in 1972. And it certainly ought to allay any concerns that a shield law would give the media too much power. For example, if the federal government had such a law in place, there’s little doubt that Judith Miller, Matthew Cooper, et al. still would have been compelled to testify.

At a moment when journalists behaving badly is a recurring theme, this is not an auspicious moment to be pushing for increased protections for newsgathering. Nevertheless, more than 30 states have some type of shield law on the books. It’s time for Massachusetts to join those ranks.

Crime and politics

Special prosecutor Patrick Fitzgerald, at his news conference yesterday, said that the reason Lewis “Scooter” Libby isn’t being charged directly with exposing Valerie Plame’s status as an undercover CIA operative is that Libby’s alleged lies may have made it impossible to get at the truth.

In his careful way, Fitzgerald said that Libby’s truthful testimony might not have led to his being charged in blowing Plame’s cover — but that, on the other hand, maybe it would have. The relevant excerpt:

FITZGERALD [note: earlier I nonsensically attributed these remarks to “LIBBY”]: Let’s not presume that Mr. Libby is guilty. But let’s assume, for the moment, that the allegations in the indictment are true. If that is true, you cannot figure out the right judgment to make, whether or not you should charge someone with a serious national security crime or walk away from it or recommend any other course of action, if you don’t know the truth.

So I understand your question which is: Well, what if he had told the truth, what would you have done? If he had told the truth, we would have made the judgment based upon those facts. We would have assessed what the accurate information and made a decision.

We have not charged him with a crime. I’m not making an allegation that he violated that statute. What I’m simply saying is one of the harms in obstruction is that you don’t have a clear view of what should be done. And that’s why people ought to walk in, got into the grand jury, you’re going to take an oath, tell us the who, what, when, where and why — straight.

Naturally, the Wall Street Journal editorial page blows right past that distinction with a headline that reads, “Obstruction for What? Libby is charged with lying about a crime that wasn’t committed.” Here’s the lead:

WSJ: Patrick Fitzgerald’s investigation took nearly two years, sent a reporter to jail, cost millions of dollars, and preoccupied some of the White House’s senior officials. The fruit it has now borne is the five-count indictment of I. Lewis “Scooter” Libby, the Vice President’s Chief of Staff — not for leaking the name of Valerie Plame to Robert Novak, which started this entire “scandal,” but for contradictions between his testimony and the testimony of two or three reporters about what he told them, when he told them, and what words he used.

Given Fitzgerald’s clear statement that Libby’s alleged lies made it impossible to determine whether or not a larger crime had been committed, the Journal editorial amounts to journalistic malpractice. Are you surprised?

A dark day for journalism

Yesterday’s indictment of Lewis “Scooter” Libby could prove to be a dark day for any notion that reporters have a right to protect their confidential sources.

That right — never fully recognized, although the Supreme Court’s Branzburg v. Hayes (1972) decision led to some limited protections — had already been under assault as never before. Jim Taricani of WJAR-TV (Channel 10) in Providence was sentenced to house arrest last year for refusing to divulge who had given him an undercover FBI videotape of a city official accepting a bribe. And, of course, Judith Miller of the New York Times recently served 85 days in jail rather than talk about her conversations with Libby.

The problem now is that journalists, having already identified Libby as the alleged bad guy in the Valerie Plame investigation, will become the star witnesses against Libby if and when the case goes to trial. Bob Zelnick of Boston University raised this point last night on “Beat the Press,” the weekly media roundtable that’s part of WGBH-TV/Channel 2’s “Greater Boston.” Zelnick noted that, inevitably, Miller, NBC’s Tim Russert and Time magazine’s Matthew Cooper will all have to take the stand and testify against their once-confidential source — a pretty unappetizing prospect.

This morning, Katharine Seelye and Adam Liptak expand on that in the Times. Some excerpts:

SEELYE AND LIPTAK: “This is exactly the thing,” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota, “that journalists fear most – that they will become an investigative arm of the government and be forced to testify against the sources they’ve cultivated.”
…
Floyd Abrams, the First Amendment lawyer, said he could not recall a previous case that depended so heavily on testimony by reporters or in which reporters could be so exposed.

“It’s troubling that reporters are being asked to play so central a role, but even more troubling that reporters may be obliged to play the role of testifying against someone that they had promised confidentiality to,” said Mr. Abrams, who has at various times represented The New York Times, Time, Ms. Miller and Mr. Cooper.
…
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the case was setting a dangerous precedent. “Reading the indictment makes my blood run cold,” she said. “This whole thing hinges on Russert.”

Indeed, special prosecutor Patrick Fitzgerald might not even have a case were it not for Libby’s alleged lies about his exchange with Russert. Josh Marshall points to a National Review Online post that shows just how solid and serious the Russert matter is.

This has always been a lousy case for anyone who thinks there ought to be at least a limited reporter’s privilege. Washington reporters, compromised by the ways of Washington, claimed a reporter’s privilege not to protect a whistleblower or to expose government corruption (as Taricani did), but, rather, to maintain their promise of anonymity to a source or sources who may have outed an undercover CIA agent and thus undermined national security. I understand why they had to do that, but there’s nevertheless something unclean about it.

The media lovefest enveloping Fitzgerald is unwarranted. Fitzgerald does come across as admirably apolitical, a rare straight-shooter. But he also took advantage of the tattered fabric that was the reporter’s privilege and blasted an enormous hole right through it.

Short of a national shield law — something that seems unlikely to pass — the reporter’s privilege has now gone from tenuous to nonexistent. Perhaps some good will come out of this: A source will think very, very hard before he uses a reporter’s promise of anonymity to engage in criminal behavior.

More likely, though, Fitzgerald’s crusade will make it harder for journalists — and journalism — to expose the truth.

Libby’s TNR testimonial

It’s not quite like getting George Foreman to put his name on a grille, but there is at least some commercial value in the indictment of former White House official Lewis “Scooter” Libby. From the indictment:

12. On or about June 19, 2003, an article appeared in The New Republic magazine online entitled “The First Casualty: The Selling of the Iraq War.” Among other things, the article questioned the “sixteen words” and stated that following a request for information from the Vice President, the CIA had asked an unnamed ambassador to travel to Niger to investigate allegations that Iraq had sought uranium from Niger. The article included a quotation attributed to the unnamed ambassador alleging that administration officials “knew the Niger story was a flat-out lie.” The article also was critical of how the administration, including the Office of the Vice President, portrayed intelligence concerning Iraqi capabilities with regard to weapons of mass destruction, and accused the administration of suppressing dissent from the intelligence agencies on this topic.

13. Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

Cruise on over to The New Republic’s Web site, and you’ll see that the very first item is “The TNR article cited in the Libby indictment.” The article, by John B. Judis and Spencer Ackerman, was originally published in June 2003. It was a landmark (especially for a publication as pro-war as TNR had been), revealing in considerable detail the pressure that Dick Cheney and other neoconservatives in the Bush administration had put on the intelligence community to produce the rationale they needed to justify going to war.

Here’s the paragraph that presumably got Cheney and Libby going on their Wilson snipe hunt:

TNR: One year earlier, Cheney’s office had received from the British, via the Italians, documents purporting to show Iraq’s purchase of uranium from Niger. Cheney had given the information to the CIA, which in turn asked a prominent diplomat, who had served as ambassador to three African countries, to investigate. He returned after a visit to Niger in February 2002 and reported to the State Department and the CIA that the documents were forgeries. The CIA circulated the ambassador’s report to the vice president’s office, the ambassador confirms to TNR. But, after a British dossier was released in September detailing the purported uranium purchase, administration officials began citing it anyway, culminating in its inclusion in the State of the Union. “They knew the Niger story was a flat-out lie,” the former ambassador tells TNR. “They were unpersuasive about aluminum tubes and added this to make their case more persuasive.”

You can read the article here, because TNR has departed from its usual practice and made the Judis-Ackerman piece freely available. After all, this a selling moment. What better come-on than the article that may have led Scooter Libby into a life of crime?