Expensive, Intrusive And Rarely Successful   

Investigating leaks often sounds better in theory than in practice.

Washington is abuzz with rumors, whispers and innuendo. Individuals with a stake in the outcome of the scandal involving President Clinton and his relationship with former intern Monica Lewinsky are feeding juicy tidbits to journalists. Most of them do so on condition that their identity be kept secret from the public, and with good reason. Some of these sources may be breaking the law.

Federal Rule of Criminal Procedure 6(e) forbids government attorneys from disclosing "matters occurring before the grand jury." Those who knowingly violate the rule can be held in criminal contempt.

David Kendall, one of Clinton's lawyers, made headlines when he filed a formal complaint in federal court accusing Independent Counsel Kenneth Starr of unleashing "a deluge of illegal leaks." (Starr denied it.)

It's anticipated that Starr will turn over the fruits of his investigation to Congress. If he does, an ever-widening circle of government employees, including congressional staffers, will have access to "matters before the grand jury." The inevitable consequence: more leakers, more leaks and more calls for investigations to find the sources of the leaks.

Reporters aren't bound by the federal rules, so they commit no crime when others provide them with grand jury information. But they are often the first targets of leak investigations, not in an effort to prosecute them but to uncover their sources.

In the past, most such investigations have failed to identify the leaker. But they pose a threat to First Amendment interests by muzzling potential sources and intimidating journalists.

Nearly 10 years ago, Attorney General Richard Thornburgh tried to find the source of a leak about a purported FBI investigation of Rep. William H. Gray III revealed by CBS correspondent Rita Braver in May 1989. At a hearing before two House subcommittees on August 2, a deputy assistant attorney general testified that subpoenaing reporters would provide "the best possible evidence" of the source of illegal leaks.

After Thornburgh declared on NBC's "Meet the Press" that subpoenaing Braver or her phone records would be "well within constitutional grounds," subcommittee chairmen Charles Schumer and Don Edwards admonished the attorney general in a letter that "forcing reporters to disclose their sources is anathema to the First Amendment."

By the time Thornburgh announced in December 1989 that he had come up empty, his investigators had questioned more than 30 individuals, including top Justice Department officials, and spent $224,000. Then-Solicitor General Starr reviewed the inquiry and found no evidence of Justice Department wrongdoing. But the following April, Thornburgh sheepishly acknowledged that his own press secretary had "played a role" in confirming Braver's story, although he denied that he had violated departmental policy in doing so.

Although Braver was never subpoenaed, in 1992 two other journalists were – by another independent counsel, Peter Fleming, hired by the Senate to hunt for the source who leaked Anita Hill's sexual harassment allegations against Supreme Court nominee Clarence Thomas. After the Senate refused him permission to subpoena the telephone records of reporters Nina Totenberg and Timothy Phelps, Fleming issued a lengthy report stating that his mission had been foiled by the Senate's "acquiescence in the media's claim of a superior right." Allowing the journalists to keep their sources secret, he said, was tantamount to endorsing "the continued ability and perhaps even the right of senators and staff persons to disclose confidential information with a certainty that their anonymity will be secure."

Fleming's observation was on target. The legislative branch, like the executive branch, leaks. This is nothing new. Congress is loath to subject itself to the threat of punishment for what is seen as part of the ordinary course of politics in Washington.

But will Congress or the judiciary defer to the rights of reporters if a probe is launched to identify the leakers in the Lewinsky case? Unprotected by a federal shield law, journalists could find themselves in the witness box, facing some hard ethical and legal decisions. Such confrontations won't do much to stop leaks, but they may do considerable damage to the First Amendment.

Experience shows that leak investigations are expensive, intrusive and rarely successful. Santayana wrote that "those who cannot remember the past are condemned to repeat it." Judges and lawmakers would be wise to recall the history of leak investigations and to think twice before launching another exercise in futility. l