Enshrining Investigative Reporting
By Florence George Graves
Florence George Graves, a resident scholar at Brandeis University, is the founding editor of Common Cause Magazine and one of the reporters who broke the Packwood story for the Washington Post. Her research for this story was supported in part by the Fund for Investigative Journalism. Amanda Elk, Bridget Gutierrez and Kathy Killeen provided research assistance.
I F NOT FOR KENNETH STARR AND HIS FELLOW JUDGES , Washington Post editor and investigative reporter Bob Woodward might be in a different line of work.
Starr is widely regarded as the primary author of a 1987 U.S. Court of Appeals decision that overturned a libel verdict against the Post and unabashedly endorsed the importance of investigative reporting.
During the years of legal combat after Mobil Oil Corp. President William P. Tavoulareas and his son Peter sued the Post, Woodward recalls with a laugh, he kept telling then-Executive Editor Ben Bradlee and the Post's lawyers, ``If we lose this case we will be out of business, because this is what we do."
Woodward was one of reporter Patrick Tyler's editors on a 1979 story that said that the elder Tavoulareas had ``set up" his son in a shipping business that received ``millions of dollars in business operating Mobil-owned ships under exclusive, no-bid contracts." At issue were the words ``set up."
The journalism world was stunned when first a jury and then a three-judge appeals court panel ruled against the Post. The relief was palpable when the full appeals court reached a sharply different conclusion. Writing for the majority, Starr and Judge Skelly Wright said the article was ``substantially true" and that the record ``abounds with uncontradicted evidence of nepotism in favor of Peter."
Woodward, who keeps a dog-eared copy of the decision by his desk along with ``some of my favorite books like `Middlemarch,' `The Killer Angels,' `Crossing to Safety,' some Saul Bellow books," believes the decision ultimately was more important to journalism than the Pentagon Papers or the Watergate stories he reported with Carl Bernstein.
Here is an edited transcript of Woodward's remarks from an interview with Florence George Graves:
``W HAT I HAVE SAID TO VARIOUS PEOPLE AT THE POST , and I have said this to [Publisher] Don Graham once--who did not agree--is that when his descendants are running the Post in the next century, if it stays in the family, that the most important thing to the Post is going to be that Court of Appeals decision, because what it does is it enshrines in constitutional principle the concept of very aggressive, adversarial investigative reporting. And because the Supreme Court did not take the case, it's the law for the District of Columbia, where the Post is published.
``I also said to Don Graham that I thought in about 100 years, if the Post existed and was practicing aggressive investigative reporting, that this opinion would have more significance to his successors than anything, including the Pentagon Papers and Watergate. Because it's the law and the Pentagon Papers and Watergate are only history that applies to those moments--and it's part of the Post tradition--but traditions aren't law. And this is the law.
``Now it may be overturned by the Court of Appeals in a later case, but I don't think so, because I think Ken Starr got it right. This is the law that lives on, and when the Pentagon Papers and Watergate are dim, even nonexistent, memories in the year 2072 on the 100th birthday of the Watergate break-in--and it goes unremembered by the people who are running the Post--they may have a copy of this opinion on the side of their desk.
``Bradlee has said publicly, `If you come to me and ask me to run that story and say it's going to cost a million dollars in legal fees and all the back and forth, I wouldn't run it.' I argued with Ben about that, saying if someone comes to you with all the facts and says, `You are going to pay a million dollars in legal fees and, yes, have some ups and downs but get this final opinion,' that's definitely worth the money and some of the agony. If you get constitutional law that is the law forever in the District of Columbia that enshrines investigative reporting--now that's one million dollars for a license. It's the biggest bargain the Washington Post ever got.
``Starr refused to let Tyler's comment about blowing one of the seven sisters [oil companies] out of the water [be considered evidence of malice]. `The mere taking of an adversarial stance is not antithetical to the presentation of facts,' Starr says. Then he goes on with my somewhat well-known comment about `holy shit' stories [and concludes] just because we're trying to find good stories and expose corruption, that doesn't mean that we're unfair or that it's not constitutionally protected within the First Amendment.
``That's why, of course, it is shocking to see that the same Ken Starr--it's almost like he forgot what he wrote [when he called White House aide] Sidney Blumenthal before a grand jury [to talk about his conversations with journalists]. To put it nicely [it is] mildly inconsistent in my view. It looks like the thick skin he called on everyone else to have, at least on initial glimpse, he seemed not to feel or suggested [did not apply] to him. That may be unfair.... Maybe he does know that it applies to himself, and he's looking at something much more serious, and that people [who are complaining that he's gone too far] have just looked at a couple of subpoenas. Absent more information, I guess in fairness I would give him the benefit of the doubt."
Woodward recalls that when he and Scott Armstrong were working on ``The Brethren," a book about the U.S. Supreme Court, Starr, a former law clerk to Chief Justice Warren Burger, was one of the few people who wouldn't cooperate.
``He said, in effect, `Mr. Woodward, I wish you luck, but I would just not feel comfortable.' He was not going to talk to us about the Supreme Court because he had had a confidential clerkship with the chief justice. I interpreted it as anti-press, which shows how narrow-minded we in the press can be. Then when he was on the Court of Appeals in the Mobil case, I thought, `Oh Christ, we're in real trouble because this guy is anti-press.' I was stunned to see that he wrote that opinion.
``What's my bottom line? That based on my experience with him, and I have met him and talked with him a number of times, but not much, he's basically somebody who plays by the rules very strictly and is quite open-minded. He was able to write this opinion [despite his background as a conservative Republican, which would suggest he might see the press as] one of the institutions in American life whose power should be curtailed or called into question. His opinion did the opposite, of course."
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