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.