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American Journalism Review
Senate Says: Why Not Blame It on Nina?  | American Journalism Review
 AJR  Columns :    THE PRESS & THE LAW    
From AJR,   April 1992

Senate Says: Why Not Blame It on Nina?   

When leaks make Congress look bad, reporters often take the heat.

By Lyle Denniston

The press should write it on the wall as an axiom: The more embarrassed public officials become about their own flawed performances, the sooner they will look for ways to blame the press. That usually isn't a problem – until the officials try to use the law to place the blame.

This axiom has been proved all over again by a lawyer hired by the U.S. Senate to find the sources of press "leaks" about two controversial matters: the Supreme Court nomination of Clarence Thomas and the ethics investigation of the senators known as the "Keating Five."

If it were not for the legal threat that these pursuits pose, they might be somewhat entertaining. The Senate knows as well as anyone that, given the nature of its investigative process, leaks are absolutely essential whenever controversy lurks.

But by harassing the press, the Senate winds up shooting itself in the gumshoe.

This time, the Senate's lawyer, Peter Fleming, subpoenaed Newsday reporter Timothy Phelps and National Public Radio reporter Nina Totenberg to find out who told them about Anita Hill's sexual misconduct complaint against Judge Thomas. Fleming also subpeonaed Washington Times reporter Paul Rodriguez to chase down the sources who helped him with stories about the Keating Five's conduct in the savings and loan scandal.

Not surprisingly, the reporters, their attorneys and interested press organizations all said the subpoenas were a useless exercise, and probably unconstitutional.

To Senate insiders, however, the subpoenas are anything but useless. Their primary function is not really to identify leakers, but to cover the Senate's red face because of its lack of will to investigate thoroughly or reveal the ugly things it does find. Because of that, it needs the press to do some of the tough probing on its behalf and to reveal the hard facts that turn up.

Reporters and their news outlets, of course, have a strong appetite for scandalous material. Frequently they find it out all on their own. But they also can learn a good deal from Capitol Hill investigators and lobbyists. Those inside and outside the Senate who seek to influence the legislative process are keen on passing what they know (or what they suspect) to inquisitive reporters.

A vivid example occurred in the corridors near the Senate floor last fall while the Thomas nomination fight was nearing its close. Anti-Thomas lobbyists were whispering about a tidbit that one of them had just picked up, and a bystander overheard this question: "Has anyone given that to Nina yet?"

Senators know well that that is the way such things can work, and there is every reason to believe they prefer it that way. Lobbyists influence the process, the press gets its stories one way or another, the senators on one side or the other of a controversy get the hoped-for effect and the Senate itself can appear to be above the fray.

No one should doubt that the Senate has the staff and the know-how to do a searching investigation of almost anything that attracts its interest. Moreover, it can extend its reach by demanding access to the files of the FBI.

But senators realize that aggressive probing can get very messy – politically messy – if not ethically untidy. Far better, it would seem, to have Phelps, Totenberg, Rodriguez and other reporters take the heat.

Given the history of predictable press stone-walling of subpoenas issued by Congress, and given the fact that there is a fair amount of legal precedent on the reporters' side when a subpoena arrives, it is unlikely that many members of the Senate – if any – truly believe that leakers are going to be exposed by that technique. Of course, that's not the point.

By putting Phelps and Totenberg on the spot, the Senate may have shifted the spotlight from its own hesitancy to pursue Anita Hill's accusations, and from its political humiliation about the way the Thomas hearings had turned into a "he-lied-she-lied" burlesque.

And, by putting Rodriguez on the spot, the Senate may have diverted attention from the gingerly way it polices its own members.

That's why a congressional subpoena appears to the news media's lawyers to be little more than a cruel hoax. The Senate, they know, does not seek a legal fistfight with the press and probably can get what it wants merely by the threat of such a battle.

The Senate and Fleming would be well advised to look to the judiciary and the example set by Chief Judge Abner J. Mikva when the U.S. Circuit Court of Appeals was embarrassed by another leak involving Thomas.

When Thomas' nomination for the Supreme Court was before the Senate, a controversial opinion he was working on as a judge on the circuit court was leaked to Legal Times, which implied strongly that he was holding it up to improve his chances for confirmation. When that opinion finally emerged, six judges on the circuit court demanded a probe of the leak. Mikva checked around quietly, summoned no reporters, and spiked the idea of a full probe. l



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