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Nicholas Goldberg: A tale of two leaks

Nicholas Goldberg, Los Angeles Times on

Published in Op Eds

As a journalist, I am not a big fan of aggressive, retaliatory investigations into leaks to the media.

Yes, government has the right to keep and protect certain secrets, but the public has a right to information too, and reporters often rely on unauthorized leaks of newsworthy stories. Not all of those leaks involve classified material or volatile national security secrets or invasions of privacy, and for insiders to divulge them to reporters is not necessarily illegal or immoral.

I'd go even farther and say that whistleblowers who disclose secrets about government misdeeds and misbehavior that their bosses would prefer to keep hidden deserve our thanks.

A good example of that was the anonymous leak in October of a recording of three L.A. City Council members and a local labor leader in a conversation so explosive that it upended City Hall and forced the resignation of Council President Nury Martinez. Like everyone else, I'm extremely curious to know who taped the conversation and why, but on balance I believe that the person who did so — exposing the kind of casual racism, crude insults and political scheming that goes on behind closed doors — performed a service to the community.

Nevertheless, The Times reported a few days ago that detectives with the LAPD's Major Crimes Division have served a series of search warrants in an aggressive effort to discover who made the recording, apparently because it is illegal to do so without the consent of all the parties. Felony criminal charges are being considered. Maybe the leaker will be tracked down; maybe not — but I certainly hope that prosecutors keep in mind that insiders who risk their careers to bring scandal to light often serve as an important check on government abuses.

My admiration for some leakers, however, doesn't mean I admire all of them. Not all leaks are equal. My sympathy does not, for example, extend to U.S. Supreme Court justices or their clerks leaking early draft judicial decisions for political purposes and no clear societal benefit.

I am referring of course to the most sensational leak of 2022: the unauthorized release in May of the draft opinion in the abortion case of Dobbs v. Jackson Women's Health Organization, which revealed (before the decision was finalized) that the court planned to overturn the constitutional right to an abortion.

There, too, a leak investigation is underway. Outraged court officials want to know how Politico got hold of the draft, and from whom? Chief Justice John Roberts called the leak "absolutely appalling" and an "egregious breach of ... trust" and ordered the marshal of the court, Col. Gail A. Curley, to investigate.

In that case, I hope they get to the bottom of what happened. Not because someone necessarily needs to be prosecuted; the notion that the leaker should be criminally punished for theft of government material or some other catch-all accusation strikes me as over the top. This was not classified material; leaking it endangered no lives.

But it does seem important to know how it happened and what the motivation was for undoing yet another long-standing norm of the supposedly above-the-political-fray Supreme Court.

It's hard to see how society benefits from the leak of a draft document that would have been released two months later anyway, when the process was complete. No scandal or misbehavior was revealed, as in whistleblower situations. Whether the leaker was a conservative hoping to lock in antiabortion votes among the justices or a liberal seeking to encourage protest and opposition from the public, nothing much appears to have been achieved except to damage trust and cooperation and to continue the weakening of public faith in the credibility of the court.

The country deserves to know what led to such poor judgment. But the investigation seems to have disappeared into thin air.

 

Weeks and months have passed with no official update. CNN reported that some law clerks had been asked by investigators for phone records and to sign affidavits. In September several justices said they expected to learn something new "soon" — and since then, there's been only silence.

For all we know, the outcome could be announced tomorrow — or maybe nothing about the investigation will ever be made public.

Myself, I'd like an update already.

Reasonable people can disagree over the actions of leakers such as Daniel Ellsberg, Edward Snowden, Julian Assange and Chelsea Manning, each of whom divulged secret government information for their own reasons and in their own ways.

Leakers have all sorts of motivations, and sometimes those motivations are less than pure. And some leaks, let's not forget, are actually authorized leaks — planted anonymously but with the full knowledge of those in power.

Leaking to the media, let's face it, is a longstanding part of the American political tradition. The Treaty of Guadalupe Hidalgo which ended the Mexican-American war, was leaked to a reporter in 1848, enraging Congress. Even Roe v. Wade was leaked (just a few hours early) to Time magazine in 1973.

Journalists generally are less concerned with the motivations of sources who want to leak to them and more concerned with whether the information is accurate and if it is newsworthy.

But as citizens, we ought to consider on a case-by-case basis whether leakers have revealed some abuse, misbehavior or lie that Americans deserve to know about but which government would rather remained buried. If they have, they more likely deserve neither censure nor punishment, but praise.

If we ever find out who they are.

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©2022 Los Angeles Times. Visit at latimes.com. Distributed by Tribune Content Agency, LLC.

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