Paper: Ethics in Investigative Reporting

This paper discusses ethics in investigative reporting through Woodward & Bernstein's All the President's Men (if you haven't read this book, you need to). It's not so good as the last one I posted, but does provide an interesting glimpse into some of the tactics of investigative journalism if you've yet to read the book or have forgotten it.

Ethical Boundaries in Investigative Reporting

Watergate. It is a name whose meaning stretches far beyond a luxury Washington hotel. It is a name of scandal, crime, and cover-up. It is a name that changed a generation. It is a name that destroyed a President. And so it may dishearten some to consider that Watergate's new meaning was revealed to us through incredibly unethical investigative reporting. Carl Bernstein and Bob Woodward were arguably directly responsible for the Watergate investigations and most certainly played an instrumental role in keeping the incident in the public consciousness. Yet in their book All the President's Men they portray their own investigation as fraught with moral lapses. And while they admitted to having private doubts, they continued on because it is sometimes acceptable for investigative journalists to be morally flexible. Our country prides itself on journalistic freedom for good reason. A free press is one of the essential elements of a functioning democracy; it watchdogs over the legislature to prevent the subtle passage of dramatic bills (like the USA PATRIOT Acts), keeps an eye on the President to insure he doesn’t overreach his authority or hoodwink the public, digs into the past of judicial nominees more thoroughly than even the legislature can, and comments on court cases and opines on constitutional law. And of course the press also reports news, keeping citizens abreast of events in the world. It is possible to perform some of these duties while operating on a level moral plane, and, when possible, journalists should stay on the straight and narrow. Reporting the election of some official, the ratification of a treaty, or the past rulings of a judicial nominee are all fairly passive activities that can be reported without any difficult moral decisions. True investigative reporting is a different matter. In a case such as the Washington Post’s Watergate investigation, information must be obtained for the investigation to continue, and that information is often concealed behind unwilling subjects and legal barriers. The ends certainly do not always justify the means, but All the President's Men showcases many instances of generally acceptable rule-bending. A brief primer: On June 17th, 1972, five men were arrested at the Watergate Hotel in Washington, D.C. for attempted burglary. The Democratic National Committee’s headquarters were in the Watergate, and the burglars had been apprehended in that area of the hotel. Over the next several months, the Washington Post (along with a few other news organizations) exposed several pieces of critical information that eventually led to President Richard Nixon resigning from his post. Among those stories: the link between the Watergate burglars and the White House itself, a trail of money that financed dozens of other shady, sometimes illegal, political operations, evidence that the President’s top White House aides had been personally and directly involved in the operation, and evidence that President Nixon had been directly involved in the cover-up. The first example of moral ambiguity from All the President's Men is the acquisition of private records. Early in the book, Bernstein writes about how one of his first steps in pursuing a lead on Bernard Barker (Barker was the lead burglar of the Watergate Hotel) and his connections to the Committee to Re-elect the President (CRP) involved obtaining Barker's phone records (35-36) and bank statements (41):

Bernstein had several sources in the Bell system. He was always reluctant to use them to get information about calls because of the ethical questions involved ... It was a question he had never resolved in his mind. Why, as a reporter, was he entitled to have access to personal and financial records when such disclosure would outrage him if he were subjected to a similar inquiry by investigators?

Without dwelling on his problem, Bernstein called a telephone company source and asked for a list of Barker’s calls. (35-36) While the new information was very important in showing the depth of the conspiracy, Bernstein had misgivings that he simply glossed over; we may now judge him with the luxury of hindsight. Phone and bank records are definitely private and can be obtained by the government only with a judge's approval, but obviously no such clearance is possible in journalism. I contend that the reason such things are protected from the government has to do with size. The government is huge, and there is a genuine fear that if the government can freely examine such records investigators may begin watching us all without good reason and begin monitoring people as soon as they come into contact with suspicious persons. However, such fears are not applicable with news organizations—even if they could somehow acquire the manpower necessary to undertake such detailed examinations, sources would balk at the sudden increase in information access. It's a simple matter of size and resources causing fear of information access, and because a journalistic investigation has access to neither great size nor great resources, this access is acceptable. Tactic propriety often depends on the target. For instance, at one point Bernstein, having learned that Donald Segretti was probably involved in shady dealings of the CRP, tried to contact him (120):

... There was no law firm listed under Young and Segretti. There were several Segrettis, however. After several calls, Bernstein reached Mrs. A. H. Segretti in Culver City. She said she was Don’s mother. Bernstein bent the rules a bit. The Post had a firm policy that its reporters were never to misrepresent themselves. But he didn’t tell Mrs. Segretti he worked for the Washington Post. When he left his name and numbers, they were for both his and Woodward’s apartments.

His behavior here is clearly toeing beyond the line. Segretti (and his mother) were private citizens, and to contact civilians under false pretenses is repellent. Though investigative journalists have some privileges, this is not one of them. However, if this tactic were employed against a government agency it would be legitimate: there are no legal differences between reporters and private citizens as far as disclosing government information is concerned, but in practice there are sometimes prejudices that make deceit an unfortunate necessity. Luckily enough, this incident also revealed a moral benefit of working in teams—Woodward answered Segretti’s return call, and immediately dispelled any misinformation by properly identifying both himself and Bernstein. Bernstein then unfortunately continued his phone escapades by pretending to be Segretti, hoping to provoke a response from Gordon Liddy that would show a link between the two (121):

Bernstein went into an unoccupied office near the newsroom. He was really going to break the rules this time, and he didn’t want Bradlee or anybody else to walk by his desk and hear him doing it. ... All he wanted was some sign of recognition, something like, “What’s the problem, Don?” Unfortunately, Bernstein had not designed a scenario to deal with the possibility Mrs. Liddy would answer the phone and ask who was calling.

Entrapment is a controversial subject most often associated with drug “stings,” and the debate in that arena is bitter indeed. As shown here, it was a low thing for Bernstein to do, and I find myself glad that it ended up failing. Even so, while obtaining more evidence would perhaps have been wise before attempting such a trick, one can hardly fault journalists for employing a trick against government officials (Liddy was on the CRP at the time but had previously worked as a White House aide) that the government itself uses in domestic intelligence-gathering operations. The same arguments apply to both a government operation and investigative journalists: the actions may be undesirable, but the results work directly for the good of society. Of course, even the Woodward and Bernstein miracle duo occasionally erred in their reporting, and the results were disastrous. Consider their feelings after they published a story alleging that Hugh Sloan, the CRP's treasurer, had, during a grand jury deposition, named White House Chief of Staff Bob Haldeman as personally controlling the money used to fund the Watergate break-in. “This time they really had the White House. The attribution to Sloan's grand-jury testimony was something Ziegler [White House Press Secretary] would not be able to duck. That was not hearsay. Hugh Sloan was the guy who'd handled the money, and he had sworn an oath.” But then a fellow reporter tells Woodward that Sloan’s attorney had denied the story’s truth.

Woodward went over to Bernstein’s desk and tapped him on the shoulder. We may have a problem, he said softly ... Bernstein suddenly felt sick and thought he might throw up... Then he and Woodward walked into Sussman’s [editor] office ... All three went into Rosenfeld’s [another editor] office and turned on the television. What they were to see on the screen was something they would never forget. Sloan and his attorney, Stoner, were walking into a law office where Sloan was to give a deposition. Daniel Schorr, the veteran CBS correspondent, was waiting there with a camera crew. Schorr approached Sloan and asked him about the Post’s report of Sloan’s testimony before the grand jury. Sloan said his attorney would have a comment. Schorr moved the microphone to Stoner. “Our answer to that is an unequivocal no,” he said. “We did not—Mr. Sloan did not implicate Mr. Haldeman in that testimony at all.” Sussman, Woodward, and Bernstein looked at one another. What had gone wrong? They had been so sure.

The reporter’s feelings had been dramatically reversed in a period of minutes; they were frightened, confused, and angered. They thought they had confirmation from three separate sources on the story. One was Sloan himself, and a conversation with his attorney slightly restored their hopes that the essential story (if not the attribution) was true. But they still wanted to know where they had gone wrong, and so they moved on to question their second source, an FBI agent. Their reaction, after the agent fearfully refuses to answer their questions, is strong:

The reporters spotted one of the agent’s superiors in the hallway. Their next move represented the most difficult professional—unprofessional, really—decision either had ever made. They were going to blow a confidential source. Neither had ever done it before; both knew instinctively that they were wrong. But they justified it. They suspected they had been set up; their anger was reasonable, their self-preservation was at stake, they told each other.

Bernstein and Woodward then actually do it, talking to the unknown superior, revealing that the agent is a source and trying to determine if they’d been fed false information—despite the fact that both the agent and Sloan had been previously reliable sources. A confidential source and a journalist enter into a serious pact with each other the moment they begin exchanging information, and blowing a confidential source on suspicions as ill-founded as those here is simply inexcusable. Of particularly interesting note, then, is the outcome. Outing the source to his boss doesn’t gain the reporters anything. They weren’t being fed bad information, and they realize later that they themselves had caused the error in their story. So this completely out-of-line decision not only harmed a previously useful working relationship, it also gained them nothing. Going too far beyond the line simply doesn’t help, providing another moral safety net for investigative reporters eager for results. After that point, the reporters resorted to tricks and games far less often, but the last attempt was serious indeed: they tried to get members of the Watergate grand jury to talk about their findings (207-211). While it is actually not illegal to question jurors about a grand jury proceeding, it is illegal for the juror to disclose any information, so the reporters were attempting to get innocent people to break the law.

Everyone in the room had private doubts about such a seedy venture. ... The misgivings, however, went unstated, for the most part. The reporters’ procedure would be to identify themselves, tell the juror that they had learned from an anonymous mutual acquaintance that he or she knew something about Watergate and ask if he or she was willing to discuss the matter. They would leave unless the juror, without prodding, volunteered something. Nothing would be said about the grand jury unless the juror mentioned it. ... Only one person volunteered that he was on the grand jury, and he explained to Woodward that he had taken two oaths of secrecy in his life, the Elks’ and the grand juror’s, and that both were sacred trusts.(210)

One juror eventually reported the incident to Judge Sirica, presiding over the case; Judge Sirica called Bernstein & Woodward in and the practice was halted. Even though nothing happened, this is one ethical breach that I actually can't agree with, and serves as a reminder that nobody in this country should get absolute passes on such affairs. But it also serves to reinforce my broader point that journalists should be allowed moral lapses: many of the possible wrongs journalists may commit can be prosecuted or easily stopped by a source if the source is so inclined (in much the same way this incident was stopped), providing a net of moral security for the reporter. If a source feels the reporter has gone too far, the source can simply pull the plug, and down the reporter may fall. And it’s worth noting that Judge Sirica agreed that the reporters had some privilege: in a scene where he calls Bernstein and Woodward before the court, he upbraids them for their actions but doesn’t divulge his target to everybody else, allowing them to continue their investigation through other channels. Clearly there are times at which potential sources of information should not be tapped because of the ethical complications involved; just as clear is the fact that there are also times at which an investigative journalist must resort to ethically muddy waters in order to obtain essential information for an important story. Our examination of Bernstein & Woodward's Watergate investigation has revealed numerous cases of difficult decisions which turned up important new information, without which the investigation would probably have died. While there are other times at which their choices produced undesirable consequences, those consequences hurting other people were few — and it's worth noting that the worst decisions often produced no results. Determining the appropriate course of action can be difficult in the middle of an investigation, but that makes it all the more important that we allow our press, our safeguard of freedom and government regulator extraordinaire, to undertake steps that we might not allow ourselves or the government itself to even consider.