Turns out Benjamin Wittes of Lawfare was once a journalist, skilled in reading between the lines when it comes to anonymous sources. He shares his rules for evaluating such reporting:
Rule No. 3: It Is Ethical and Legal for Defense Lawyers to Dish on Matters About Which Prosecutors Cannot Appropriately Talk
There is no point more important to understanding where any given story comes from than this basic legal fact: investigative secrecy rules bind prosecutors and law enforcement and court officials but generally not defense lawyers or witnesses. Rule 6(e) of the Federal Rules of Criminal Procedure bars prosecutors and grand jurors from disclosing matters taking place before a grand jury. Lots of other rules within investigative bodies generally make it improper for prosecutors and FBI officials to talk to the press about what they’ve learned. So when prosecutors and investigators leak, and it does happen, it’s often a serious impropriety—and sometimes a criminal act. (There are limited exceptions to this statement.)
The thing to keep in mind is that none of these rules covers the many defense lawyers who have subjects, targets or witnesses before those same investigators. In fact, defense lawyers are ethically bound to zealously represent their clients’ interests, and many lawyers see conditioning the public discussion of an investigation in a favorable direction for the client as part of their jobs. There are situations—court orders sealing material, confidentiality agreements and the like—where defense lawyers have ethical or legal constraints on their ability to speak as well. But the norm is that they have great freedom to discuss matters prosecutors cannot discuss; the main constraint on them is the duty to act in their clients’ interests.
Dirty little secret: It’s a common tactic for defense lawyers to put material out there in a fashion favorable to their clients and to make sure the sourcing is suggestive of an improper prosecutorial leak—and then complain publicly about prosecutorial leaks. This happens a lot.
My point is not that prosecutors and investigators never leak. They sometimes do. It is, rather, that when it’s lawful and ethical and appropriate for defense lawyers to disclose material and illegal and unethical and potentially actionable for prosecutors to do so, the default assumption should be that the material came from the defense bar when something is sourced in a fashion consistent with coming from either.
Benjamin goes on to analyze a couple of recent stories using his guidelines. Interesting stuff.
