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Over the past few months, I’ve been consistently surprised at the assumptions people make about who is leaking—or lawfully and properly disclosing—material to newspapers that have been breaking stories on L’Affaire Russe. Anonymous sourcing has many benefits, but one of its pernicious features is that it allows everyone to draw their own conclusions about who makes disclosures. These conclusions of course map onto preexisting political fault lines.
To a large degree, the problem is inherent. The nature of anonymity is that it obscures accountability. That’s its very purpose.
Yet journalists—at least ethical ones—do follow rules and conventions about sourcing. Those rules are self-serving, to be sure, ones that attempt to make trade-offs between the need to tell the truth and the need to obscure the identity of who’s helping a reporter reveal what he’s got. The basic balance ends up being that the words have to be literally true but that they can—at least to a certain degree—also be quite misleading to those who are not in on the code. Still, the rules are real and they constitute a known professional discipline that provides the savvy reader—those that take the time to learn them—a certain latitude to discern what’s going on. But that’s a big if. To make reasonable inferences, you have to both know the rules and use them to parse sourcing descriptions carefully.
I worked as a journalist for more than a decade. Those years included covering the period of intensive reporting concerning the last major investigation of a sitting president—and the alleged leaks that arose from that investigation.
So as a public service, I lay out in this post the sourcing conventions that are in play every day within stories about Trump-Russia matters: what they mean, what they don’t mean, and what is reasonable to infer from how a reputable news organization describes its sources in an investigative news article on these issues.
I’ll attempt to apply these rules to three news stories from last week: the New York Times’ disclosure Friday that “The special counsel, Robert S. Mueller III, has obtained a letter drafted by President Trump and a top political aide that offered an unvarnished view of Mr. Trump’s thinking in the days before the president fired the F.B.I. director, James B. Comey”; Politico’s report that “Special counsel Robert Mueller’s team is working with New York Attorney General Eric Schneiderman on its investigation into Paul Manafort and his financial transactions”; and the Financial Times’ story that “Rinat Akhmetshin, the lobbyist and former Soviet army officer who met senior Trump campaign aides at a controversial meeting last year, has given evidence before a grand jury investigation.”
Three caveats upfront: First, not all good news organizations follow precisely the same sourcing rules. Different news organizations have different policies, and different reporters have their own standards. So the precise implications of certain sourcing varies depending on the journalist and the organization in question. What follows are guideposts, not laws of physics.
Second—and this is really important—the rules I’m describing here are rules that reputable journalists follow. Matters get far less predictable and interpretable with stories reported by unscrupulous people and organizations—much less the legion of “citizen journalists” who make all kinds of claims online. The less elite and established the publication behind a given story, the less the rules I’m describing here may apply. For some voices, there clearly are no rules at all.
Third, journalists use anonymous sources for a variety of reasons, some of them far more legitimate than others. In the laudable cases, they do it so they can bring the public important information that they couldn’t report using only named sources. Reporting on an investigation like the Trump-Russia matter would dry up without anonymous sources for the simple reason that many more people are willing to help get news out there than are willing to do so openly—for reasons both attractive and unattractive, some noble and in the public interest, and sometimes backstabbing and serving individual agendas. So when she’s doing her job well, a good reporter has to juggle competing goals when confronted with a hot piece of news, the sources of which refuse to be publicly named.
But sometimes journalists keep their sources anonymous simply because they get lazy; recently, I was quoted anonymously at some length as “a source familiar with [James] Comey’s thinking” despite having spoken on the record and stressing that I spoke for myself and was not speaking on Comey’s behalf. Anonymous sourcing can add mystique and insider intrigue to a story that involves, as this one did, a pedestrian set of comments by someone who was saying nothing he hadn’t said in public before and had no objection to being named. The following tips work better when applied to stories in which the reporters have been thoughtful and careful than those in which the anonymity is a result of sloppiness—something that may not be obvious within any given story.
With these caveats, here are eight good tips for reading sourcing by reputable journalists writing on the Russia investigation and associated matters:
Rule No. 1: The Words Describing a Source Should Be Presumed Accurate
If a story is attributed to “three sources familiar with the matter,” the journalist writing it has to believe in good faith that she has spoken to (1) three different people, each of whom (2) is genuinely familiar with the matter in question. If she attributes a fact to an “administration source,” that fact cannot have come from someone in, say, the legislative branch or from the spouse of a person who works in the administration. If the reporter attributes something to “law enforcement sources,” the sources have to work in law enforcement—though not necessarily in the specific investigation at issue. Always start with the precise words the journalist is using to describe her sources. An ethical journalist will never write a sentence that is not on its own terms true.
Rule No. 2: Don’t Make Hasty Assumptions About Vague Sourcing
While the words have to be true, they emphatically do not have to be evocative of some larger truth. The conventions associated with sourcing stories like these permit a certain degree of misdirection about which the reasonable reader should be savvy. Reporters have a duty to inform the public; they also have a duty to protect their sources. These goals often conflict, and the solution is sometimes to inform the public in a fashion that is technically accurate but is not what a naive reader would expect certain words to mean.
The most common form of misdirection is vagueness. The phrase “government officials,” while suggesting executive-branch officials, is capacious enough to include legislative-branch officials, whose tongues tend to be far looser. The phrase “sources familiar with the investigation,” while suggestive of sources in the investigation, often includes those defense lawyers interfacing with the prosecutors and investigators. (This latter point is particularly important because of Rule No. 3 below.) The phrase “administration officials” includes executive-branch officials in agencies and White House officials. The phrase “investigators,” if unmodified, includes not merely Mueller’s team but also the numerous congressional staffs of both parties—who have very different agendas—who might reasonably be said to be investigating the matters at hand.
Distill this and Rule No. 1 to their collective essence and it yields the following: Read sourcing sentences both literally and broadly.
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.
This point works in tandem with Rule No. 2 and gives rise to a good working rule of thumb: Stories sourced to people “familiar with the investigation” or “familiar with the matter” should be presumed to come from attorneys in private practice—or the clients themselves—unless there is some specific reason to believe they came from the prosecutors or the investigative side. This is not an iron-clad law, but it’s a very good guidepost for reading news stories.
Note that one reason this rule works is that sources—in negotiating with reporters—have a lot of say in how they get described because they can condition their cooperation on being described in certain ways and not in other ways. So sophisticated defense lawyers will tend to seek attributions that permit the inference that the leak came from prosecutors. One of the reasons the rule is not absolute, conversely, is that sophisticated government leakers will seek similar sourcing by way of deflecting attention from the government side and allowing the inference that the disclosure came from a lawyer in private practice.
Rule No. 4: Congressional Investigators Know a Lot Too
Many disclosures about investigations actually come from Congress.
The reasons for this are twofold: first, congressional investigators often interview the same witnesses the executive-branch investigation is looking at; and, second, congressional investigations need to be deconflicted on an ongoing basis with the executive-branch probe so there’s communication between them.
Keep this fact in mind when articles are worded in a fashion that does not exclude the possibility of congressional sourcing. “Mr. So-and-So has testified before the grand jury, according to sources familiar with the matter” can refer to congressional investigators if Mr. So-and-So happens to be someone who is also cooperating with those congressional investigators and happens to have told them (as he is allowed to do) about his conversations with the grand jury. Again, note, as per Rule No. 2, that while the term “administration officials” excludes congressional sources, the phrases “government officials” and “government investigators” do not—and can sometimes be a hint to think about who on Capitol Hill might have access to the information in question.
Rule No. 5: ‘Administration Officials’ Can Include Both Investigators and Government Witnesses
A particularly tricky term in an environment where an investigation is looking at presidential conduct in office is the phrase “administration officials.” Is an “administration official” from the part of the administration that is conducting the investigation? Or is the official from the part of the administration that is being investigated? The answer is that this language can mean either. Keep that in mind.
Rule #6: Good Reporters Say As Much As They Can About Sourcing
As noted above, some reporters are lazy about sourcing things. The better ones are not and will tell readers as much as they can about whom they’ve been talking to consistent with their arrangements with those sources and the need to protect them. They will also push their sources to let them be more, rather than less, detailed in their descriptions. A good reporter talking to sources inside Mueller’s camp will try to flag somehow that the information is not mere chatter around the investigation but reflects the thinking of the investigation itself. When a good reporter is vague, it’s because she has to be vague. So pay attention to reporter names, and make decisions over time about which bylines to trust.
When reading a reporter trusted to disclose as much as she can, the key phrases to look for to flag actual investigative leaks are ones that specifically designate origins in the investigation itself. The most typical of these is “law enforcement sources”—though that also includes the Justice Department, the FBI and, these days, conceivably the New York attorney general’s office. Give stories affirmatively attributed to law enforcement, and particularly to sources in Mueller’s shop, special attention both as leaks and as indicative of investigative thinking. Stories not sourced to law enforcement, by contrast, should not be presumed to have come from law enforcement.
Rule No. 7: Always Note Whose Thinking a Reporter Is Describing
Reporters publish what they know. If a story describes a series of interactions between a witness or a subject of an investigation and the investigators and the story contains information about one side’s thinking but not the other’s, that’s a powerful sign of where the disclosure came from. If a story reports what Mueller did but not what he’s thinking or planning, that is a good indication that someone other than Mueller’s staff is describing what they did. For what it’s worth, while I have seen lots of stories speculating on what Mueller intends, I have seen not one reporting on his thinking. That says at a lot—at least to me.
Rule No. 8: Note Who Is Not in a Story Declining to Comment—and Who Is
It can sometimes be a tell if the newspaper leaves out the fact that a given person declined to comment. Some newspapers have a rule that they will not publish the statement that Mr. So-and-So declined to comment if Mr. So-and-So has, in fact, commented, even off the record. Not all newspapers have such a policy, so this is a weak rule. But it’s always worth noting who is not quoted in a story refusing to comment—especially if that person is named in the story or is a subject of it.
Conversely, institutional no-comments emphatically do not mean that people within those institutions are not sources. Moreover, the specific language of no-comment quotations can often be telling. Someone saying that it would not be proper for him to comment does not mean that he didn’t commit the impropriety. The newspaper reporting that a person did not, in fact, comment is very different from its reporting that he declined to be quoted. And both are different from it reporting that a person didn’t return calls or could not be reached. Pay attention, in other words, to exactly what the newspaper is saying about a person or entity’s no-comment.
OK, now that these rules are laid out, let’s try to apply them to some actual news stories and see what we can discern.
A lot of people seem to be assuming that the New York Times’ big story last week reflects a Mueller leak. Color me skeptical. There is only one line in the article that raises a question in my mind about whether the sources for the story included law enforcement. Let’s walk through both the substance and the sourcing of the story.
The story is attributed “to interviews with a dozen administration officials and others briefed on the matter.” This is a show of strength upfront on the part of reporters Michael Schmidt and Maggie Haberman (who, as an antecedent matter, both have a great deal of credibility with me). They are signaling that their sourcing is broad and that at least some of it comes from within the executive branch (“administration officials”). Applying Rule No. 5, note that this wording is consistent both with sources attached to the investigation and with sources in the White House or in the Justice Department. Note also that Haberman is a White House reporter famously well-sourced with the group of people immediately around President Trump.
While the story states upfront that “The circumstances and reasons for the firing are believed to be a significant element of Mr. Mueller’s investigation,” it says nothing about the thinking of the investigators on either that issue or with respect to the specific draft letter the story discloses. It contains repeated, consistent references, by contrast, to the thinking and actions of Trump White House officials—particularly White House Counsel Donald McGahn. Here are a few of them:
The letter, drafted in May, was met with opposition from Donald F. McGahn II, the White House counsel, who believed that its angry, meandering tone was problematic, according to interviews with a dozen administration officials and others briefed on the matter. Among Mr. McGahn’s concerns were references to private conversations the president had with Mr. Comey, including times when the F.B.I. director told Mr. Trump he was not under investigation in the F.B.I.’s continuing Russia inquiry.
Mr. McGahn successfully blocked the president from sending the letter — which Mr. Trump had composed with Stephen Miller, one of the president’s top political advisers — to Mr. Comey.
Mr. McGahn’s concerns about Mr. Trump’s letter show how much he realized that the president’s rationale for firing Mr. Comey might not hold up to scrutiny, and how he and other administration officials sought to build a more defensible public case for his ouster.
Mr. Trump’s letter — which was drafted at the urging of Mr. Trump during a pivotal weekend in May at the president’s private golf club in Bedminster, N.J.
The long Bedminster weekend began late Thursday, May 4, when Mr. Trump arrived by helicopter, joined by a trio of advisers — his daughter Ivanka; his son-in-law Jared Kushner; and Mr. Miller. It rained during part of the weekend, forcing Mr. Trump to cancel golf with Greg Norman, the Australian golfer. Instead, Mr. Trump stewed indoors, worrying about Mr. Comey and the Russia investigation.
The inquiry had already consumed the early months of his administration. Mr. Trump was angry that Mr. Comey had privately told him three times that he was not under investigation, yet would not clear his name publicly.
The piece then devolves into a lengthy tick-tock of machinations within the White House and the Justice Department leading up to the firing.
The entire story, in other words, is entirely consistent with non-law-enforcement administration sources, mostly in the White House, dishing about each other—except one important sentence: “The Justice Department turned over a copy of the letter to Mr. Mueller in recent weeks.”
This sure reads like a law enforcement leak—on the surface, anyway. How would anyone in the White House know this, after all?
But again, hold off a moment. Remember that the story is sourced to “interviews with a dozen administration officials and others briefed on the matter.” Before concluding that this is a law enforcement leak, much less a Mueller leak, ask: Who else might have been “briefed on the matter”? I can think of two major possibilities. Attorneys for any of the individuals involved might be the sources, particularly if they have had to answer queries from investigators in response to the draft letter. There’s also Congress. Have any of the congressional investigations looking at the Comey firing been briefed on this history? I suspect they may well have been.
My bottom line here is that this story does not read to me like a law enforcement leak but, rather, like a series of White House and administration disclosures—particularly from people close to McGahn—with input from either individual attorneys interfacing with the investigation or from congressional staffers.
The Politico story on cooperation between Mueller and the New York attorney general is less richly sourced. The article begins by announcing that “Special counsel Robert Mueller’s team is working with New York Attorney General Eric Schneiderman on its investigation into Paul Manafort and his financial transactions, according to several people familiar with the matter.” Note three things about this statement. First, cooperation between two investigations can be disclosed by either investigation. Second, identifying the subject of the cooperation flags a third possible group of people in the know about it: Team Manafort. And third, the phrase “several people familiar with the matter” is consistent with reporter Josh Dawsey’s having talked to any or all of those groups.
With that in mind, read the story asking which of those groups’ thinking is reflected in the article. Manafort’s spokesman, the New York attorney general’s office and Mueller’s shop are all quoted declining to comment. But here are some clues as to who has been talking:
People close to Manafort say the team has pressured him by approaching family members and former business partners. A number of other firms and people who have worked with him have received subpoenas.
The two teams have shared evidence and talked frequently in recent weeks about a potential case, these people said. One of the people familiar with progress on the case said both Mueller’s and Schneiderman’s teams have collected evidence on financial crimes, including potential money laundering.
State and federal prosecutors believe the prospect of a presidential pardon could affect whether Manafort decides to cooperate with investigators in the federal Trump investigation, said one of the people familiar with the matter.
The Manafort-centric nature of the story, combined with the overt reference to “people close to Manafort” describing what the joint state-federal collaboration has done looks to me like a dead giveaway that Manafort’s lawyers are important sources for this story. The only clear reference to prosecutorial thinking, rather than action, is the last reference to New York and federal authorities having shared beliefs about pardons. This could refer to either what Manafort’s people believe the authorities believe—in other words, tea-leaf reading by defense lawyers—or it could reflect a disclosure by one or both of the investigations. That latter theory is bolstered by the previous passage about evidence-sharing and repeated meetings between the two investigative agencies. Assuming there is a law enforcement element to the sourcing here, ask whether Schneiderman’s shop or Mueller’s is the most likely culprit.
For what it’s worth, my guess is that Manafort’s camp was the main source here and that someone in Schneiderman’s office confirmed the basic outlines.
Finally, let’s look at the Financial Times story about Rinat Akmetshin’s grand jury testimony. This one is really simple. The story is attributed to “two people familiar with the matter.” Both Akhmetshin and Mueller’s office declined to comment on the record. It is legal and appropriate for one of them to talk about his grand jury appearance—or to have a friend or lawyer do so. It is a crime for the other to do so. There’s no indication of any investigative thinking in the piece. This is to me a classic situation where Rule No. 3 should guide our assumptions.