John Dean, easily the slimiest of the figures involved in the Watergate scandal that brought down President Nixon, revealed the following in a column in yesterday’s LAT:
I have little doubt that one of my former Nixon White House colleagues is history’s best-known anonymous source — Deep Throat. But I’ll be damned if I can figure out exactly which one.
We’ll all know one day very soon, however. Bob Woodward, a reporter on the team that covered the Watergate story, has advised his executive editor at the Washington Post that Throat is ill. And Ben Bradlee, former executive editor of the Post and one of the few people to whom Woodward confided his source’s identity, has publicly acknowledged that he has written Throat’s obituary.
Quite interesting. People have been speculating for over thirty years as to Deep Throat’s identity, or whether there ever was such a person.
The intriguing title of the piece is, “Should We Jail Deep Throats?” Dean never actually answers that question, but argues that perhaps we should jail Woodwards and Bernsteins:
Without confidential sources, much of what people need to know in a democracy would never be reported, so unless there is a higher reason, journalists must be able to protect such sources who are willing to impart such information. That said, no news person should agree to provide confidentiality unless it is essential to obtain information that the public should be told and there is no other way to obtain the information. A scoop per se does not justify a pledge of confidentiality.
A source may be using the reporter, while the reporter is using the source. Motives range from the noble whistle-blower who is morally offended by misconduct to the staffer who is floating a trial balloon to the low-end leaker who is seeking to gain advantage by sabotaging a competitor or foe.
Reporters and their sources (and the public) must remember that when journalists agree to keep a source confidential, they have entered into a contract. Indeed, reporters have been successfully sued for damages when they have breached their agreement. However, in most states, every contract has an implied warranty of good faith and fair dealing — meaning that neither a reporter nor a source can take unfair advantage of the other. This is important because insiders leak for an array of reasons, not always honorable, and may be using the reporter’s confidentiality to protect themselves if, say, they are releasing information obtained improperly. If the source tried to enforce confidentiality, or collect damages from the reporter, the attempt would fail because of implied warranty.
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No reporter can enter into an agreement that violates that law. Rather, an agreement of confidentiality is subject to it. The so-called news person’s privilege, just like the attorney-client privilege or a president’s executive privilege, is a qualified privilege. When a judge holds a reporter in contempt for violating the law, that judge is merely upholding the law of the land.
No doubt. The reporter’s ability to report interesting information to the public doesn’t trump the law. When a leaker is in violation of the law, a journalist has an obligation to cooperate.
As to the titular question, I would give a qualified Yes. I last read All the President’s Men nearly twenty years ago and don’t recall the specifics of what Deep Throat revealed. Certainly, though, those who leak classified information to journalists should be tracked down and prosecuted. Those people obtain the information on the explicit grounds that they not disclose it to unauthorized personnel. The price for violating that trust should be high.
