Two scandals

Forget about who doped the players; who leaked the dope from the grand jury?


A bunch of baseball players have been illegally using anabolic steroids. And, in the course of the investigation, Federal law enforcement officials illegally disclosed secret grand jury transcripts to a reporter.

Of the two crimes, it seems to me that the wrong one is getting all the attention.

The grand-jury leak is much more serious intrinsically, and much better worth the attention of the press because those officials work for you and me. Yet the grand jury leak is no so well accepted a prosecution tactic that no one, as far as I know, has even bothered to criticize this one, let alone demand the full-court-press investigation every such case ought to get.

A witness before a grand jury is not allowed to have an attorney present. And there’s no judge to step in to stop out-of-bounds lines of questioning. Unlike a criminal defendant, a grand jury witness has no right to be told what the case is about, or what sort of information he provides could be used to make a case against him. All of that is tolerable only under the rule that says matters before the grand jury are secret.

(Bill Clinton told something less than the whole truth under oath about his relationship with Monica Lewinsky — a relationship that was not against the law — because he knew that Starr’s cronies were routinely leaking grand jury material to the press. An honest answer, or an attempt to plead the privilege against self-incriminaton, would have been legally harmless but politically suicidal. That doesn’t justify Clinton’s evasion, but it does illustrate the devastating power of the grand jury leak in the hands of an unscrupulous prosecutor.)

A grand jury leak is special in another way, too. The number of potential leakers is tiny, especially when what’s leaked are transcripts rather than just verbal reports. Any grand juror might be the source of a report, but only the prosecutor gets the transcript.

Even the investigators working on the case aren’t present in the grand jury room, and they have access to the transcript only through the prosecutor. The prosecutor is also allowed to disseminate the information to other officials, but anyone who gets grand jury information from the prosecutor must by law be warned that it is not to be disclosed. And the prosecutor must give the court a list of those to whom such legitimate disclosures have been made.

So when grand jury transcripts leak, the ultimate source of the leak was either the prosecutor or someone the prosecutor give it to, whether or not there were intermediate parties between the recipient and the reporter. That’s a good short list of potential targets.

It ought to be automatic, in such cases, to get the prosecutor in front of (another) grand jury, get him on oath about whether he gave the material to the press or knows who did, and get from him a list of all the authorized disclosures he made. The proseuctor, plus his list of authorized disclosures, are the complete set of suspects. If none of them had shown the transcripts to someone outside that circle, they never could have gotten to the press. So get all of the authorized disclosees on oath the same way.

And then call the reporter in and ask who gave him the stuff. If he refuses, he goes to jail under the civil cotempt power, for eighteen months or until he opens up, whichever comes first. Will that have a chilling effect on reporters? Damned straight it will, and a good thing, too. This isn’t like the national security situation, where classification is mostly a tool to cover up malfeasance and incompetence. (DoD just kept MIT from investigating whether Lincoln Labs faked some missle-defense components tests by classifying all of the information.) This stuff is secret for good reason, and in most cases the only official malfeasance involved is that of the leaker.

Among the many horrible legacies of that pluperfect scoundrel Richard Milhous Nixon, none was worse than the valorization of prosecutors who disclose grand jury testimony and the reporters who help them. Given the outrageousness of Nixon’s misconduct, no one but the die-hards was in a mood to be picky about the tactics used to get him. But somehow that case became a precedent, and anything that was done to take down Nixon &#8212 including using the sentencing process as a substitute for torture as a way of making co-conspirators rat out the boss &#8212 came to seem legitimate. (The civil rights revolution had the same unfortunate legitimizing effect on the usually-misnamed “civil disobedience.” But that’s a longer story.)

The press, so eager to investigate everyone else, is of course quite protective of its own, and of those who “serve the public’s right to know.”



Having expressed the opinion that taking amphetamines to boost performance on high-stakes tests such as the LSAT, MCAT, and GMAT constitutes cheating (partly on the grounds that using amphetamines that way is against the law, and breaking the law to win a contest is cheating), I suppose I’m committed to the position that baseball players shouldn’t be making illegal use of anabolic steroids to built their muscle. And yes, there’s a real public interest to be served in not making steroid use effectively mandatory for serious competitive athletes. But neither sports doping nor LSAT-doping is a vital public issue. The integrity of the criminal process is.

Update and correction(s):

1. I was wrong to say that the grand jury leak angle hadn’t gotten any attention. It was noticed by the LA Times and the NY Daily News. NPR reports that the U.S Attorney in San Francisco is threatening an investigation.

2. It’s not strictly true that the leak must have come from a public official. It’s possible that the transcripts have been provided to the defense lawyers for the four people indicted so far.

UPDATE AND CORRECTION It’s more than “possible” that the leak came from a defense lawyer. One has now admitted it. My apologies to the SF USAO for questioning their integrity on inadequate evidence.

It remains my view that the press is unduly willing to accept prosecution leaks of grand jury material, and that when such a leak shows up in print other reporters insufficiently eagerto investigate the source of the leak.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: