The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Monday, November 22, 2004

Where's the White Hat in the Taricani case?

Coming very late to the tale, I'd reserve judgement on the merits.

My hypothesis is that no one involved has clean hands: what seems to have happened (one view) is that, whilst the grand jury was still sitting in the case of Mayor 'Buddy' Cianci, the FBI or US Attorney's Office in Rhode Island decided on a PR coup: to create a climate in which an indictment, and subsequent conviction at trial, were made more likely. They handed the tape of the FBI sting to Taricani, who couldn't help himself. Cianci was duly delivered to the hoosegow.

Mission accomplished.

In these (hypothesised) circumstances, Taricani must have known he was laying himself open to contempt charges [1], and realised that broadcasting the tape was a flagrant attempt by the Feds to pervert the course of justice [2].

The comparison with Robert Novak in the Wilson/Plame case is striking: anonymous sources acting arguably illegally on behalf of USG aided and abetted by a journo [3].

It's hard to see how such conduct could justify the enactment of a Federal shield law such as is proposed (S 3020 - no text on THOMAS yet) by Sen Chris Dodd - it's merely at the far end of the meretricious use of anonymous government sources oft complained of here and elsewhere.

In fact, the use of Taricani's case might actually make the passage of such a law (vanishingly improbable in the best of circumstances) rather more difficult.

The whole relationship between the media and law enforcement is fraught with dubious practices: all sorts of deals are cooked out of the public gaze. And whether or not money changes hands (it often does), the relationship is bound to be deeply corrupt.

The argument on the other side - that only with promises of anonymity will whistleblowers come forward - needs to deal with the fact that, overwhelmingly, it is government in all its forms that benefits from anonymity.

I'm far from clear how this issue should be resolved; but a Bush-style you're either with us or against us approach from the media will, and deserves to, go absolutely nowhere.

  1. Counsel in the Cianci case (but no one else) were bound by a non-disclosure order by the trial judge; prosecution attorneys are close to the top of the list of suspects. Disclosure by one of them would be contempt of court. (A First Circuit decision of June 21 has details.)

  2. He committed no crime by getting the tape broadcast.

  3. The position of Judith Miller and the other journos who did not use the Plame story is clearly different.


Under the heading of cui bono, an alternative hypothesis occurs: that the tape was leaked by persons friendly to the defence in order to back an argument of prejudicial pre-trial publicity.

What good would that have done Cianci, though? If he succeeded in showing prejudice, all he could have got, as I understand it [1], is a continuance or change of venue.

The idea that it might not have been the Feds whodunnit was put in my mind by a piece in the Boston Globe:
Whoever leaked the videotape to Taricani, though, did so in violation of a court order that all such materials were to be sealed.

Which isn't true - only counsel were bound by the order.

I prefer my first hypothesis, pro tem.

  1. A good deal of material (I'm not best placed to judge the quality of the reasoning) in this piece (PDF).

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