THE BLOG
11/27/2013 10:14 am ET Updated Jan 27, 2014

The Administration's Sometime War on Press Leaks

As someone who monitors the news, and has on occasion been the news, I have been struck by the Department of Justice's (DOJ) recent heavy-handed approach to investigating unauthorized press leaks. These, at times, harsh reactions being described as the "administration's war on leaks" by Leonard Downie Jr., former executive editor of The Washington Post.

Need convincing? A few recent headlines: 35 years for Chelsea Manning, Edward Snowden on the lam, Julian Assange in hiding, DOJ confiscating the phone records of more than a hundred Associated Press journalists and then subpoenaing a Fox News reporter's private emails. The position is clear: Expose government faux pas and someone goes to jail. The First ("freedom of the press") and Fourth ("unreasonable search and seizure") Constitutional Amendments go up in smoke under the guise of perceived public danger.

Yet our major newspapers -- Washington Post, New York Times, Wall Street Journal -- are rife with articles concerning federal investigations that invariably contain the phrase "according to people familiar with the matter" -- or a derivation such as "sources familiar with the investigation say," "according to people briefed on the case," etc. Press leaks galore, no corresponding DOJ wrath.

This bipolarity struck me while monitoring another of "the administration's wars" -- the one against businessmen -- "Wall Street Fat Cats," so called. Take a moment and load "according to people familiar with the matter" -- or one of the aforementioned derivations of the phrase -- along with a DOJ white-collar criminalization du jour -- "insider trading," "backdated stock options", "mortgage fraud" -- into a Google search bar. Result: Scads of press leak articles.

These stories frequently divulge confidential matters: evidence that federal prosecutors or impanelled grand juries are reviewing; the investigation's targets; timing on pleas or indictments; bits of witnesses testimony or portions of 'key' evidentiary emails; details of 'private' negotiations; and identities of unindicted co-conspirators 'A' & 'B', etc.

Why are these "people familiar" unnamed? Could it be these press leaks are ... shudder ... illegal? Why doesn't the DOJ crackdown on this type of leak, viscerally, as it does the ones exposing questionable government behavior? Could it be these breaches are ... shudder ... authorized? I think so.

White-collar prosecution in America is political theatre. Oft -- in my humble opinion -- performed by prosecutors with more duty to career than truth. Winning is key, justice is secondary, but not necessary. In our class warfare culture trial by press has proven a 'winning' prosecution tactic, my bet a DOJ/US Attorney Office playbook staple.

To see my point, read a handful of those "people familiar/white-collar crime du jour" articles. They are most always beneficial to the prosecution and detrimental to the defense. The pursued 'fat cat' or 'evil' firm painted in a slanted and sinister light. That sells and is pure prosecutor gold.

The most powerful and unconstitutional aspect of this kind of leak article is the poisoning of the jury pool (Sixth Constitutional Amendment: "trial by an impartial jury"), which trebles during trial. No doubt the selected jurors revisit the articles, courtesy of an Internet search. Any judge who asserts otherwise is either intellectually dishonest or rejects human nature. Look how the NSA spies on us all just because it can.

Additional prosecutorial benefits include the mental bludgeoning of the DOJ target and target's family, as well as the reeking of complete havoc on their livelihood, savings and daily routines. No doubt these coercive articles play a part in frequent, rapid, pragmatic plea deals -- rather than the exercising of Constitutional right to trial, before a likely tainted-in-advance jury.

The only conclusion I can draw from the DOJ behavior, or lack thereof, is that if they don't like the press leak the hell with certain Constitutional Amendments but if they like the press leak the hell with a certain Constitutional Amendment. American Justice?