Unnamed Sources of Grand Jury Information

Today's WSJ has an article claiming that an investigation of Bradley Schlozman, former interim U.S. Attorney in Mo., has been "referred" to a Grand Jury. The article purports to describe both the fact of referral and the nature of the investigation; yet it relies entirely upon unnamed "people familiar with the probe." This is a common practice for reporters writing about secret Grand Jury proceedings.

What the WSJ fails to discuss, and what reporters nearly always fail to point out in these stories, is that the unnamed sources almost invariably fall into one of three categories: (1) lawyers for the subject of the investigation, or for a witness in the investigation, who have a goal of controlling the timing and nature of media coverage of the investigation for their client's benefit; (2) government employees committing a federal crime by revealing information about a matter occurring before a Grand Jury protected from disclosure by Federal Rule of Criminal Procedure 6(e); or (3) someone who simply does not know what is occurring before the Grand Jury. So when the reporter attributes his or her information to "people familiar with" the investigation, the reporter should tell the readers in which of these categories those "people" fall. It is certainly relevant to evaluating the credibility of the report to know, for example, that the source is a defense attorney with an agenda to benefit his client. It would also be useful to know if the source is breaking federal criminal laws to provide the information. And of course, if the source just has it wrong, or is lying, that would be nice to know, too.

Rule 6(e) is designed to protect the people who are subject to Grand Jury investigations as much as it is to protect the investigations themselves. Grand Jury investigations frequently look into conduct by people that is not criminal, and does not result in charges. Should those subjects of the Grand Jury investigation be subjected to public tarnishing on the basis of an "unnamed source"? Doesn't the WSJ have the responsibility to fairly present the basis of their report -- a report which has now tagged Mr. Schlozman as a potential criminal?