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Let’s talk about leaks! Why this essential part of journalism is getting people convicted and charged

On the same day that Kathleen Kane was appearing in front of a judge to swear she didn’t leak any information about Jerry Sandusky to the press, the son of a congressman was telling reporters in Philly that he was railroaded by the FBI after they leaked confidential information about him.

Kane has been charged for leaking grand jury information unrelated to Sandusky to The Philadelphia Daily News. It’s why Kane, the Pennsylvania attorney general and top prosecutor in the state, doesn’t have a valid law license anymore and why she’s gone on a crusade against anyone and everyone trying to bring her down.

But an FBI agent who admitted in open court that he leaked information related to the investigation of Chaka Fattah Jr., the son of a longtime Philly congressman, hasn’t been charged. And according to experts, he probably didn’t break any laws.

Leaking information to the public and the press has been a long-held tradition. Law enforcement officials and attorneys turn to reporters when they’re looking to sway public opinion before charges against a perpetrator are even filed. Reporters, for their part, are interested in telling the truth… and getting the scoop.

It’s a complicated and sometimes contradictory web of laws that are different for every person involved: law enforcement, grand jury members, witnesses, suspects, attorneys and reporters. And the rules vary depending on whether or not a grand jury is investigating the person — even down to what kind of grand jury is being used.

When grand juries are involved

Kane faces charges of perjury and contempt of court as a grand jury that investigated her alleges that she leaked confidential grand jury information about the late Jerry Mondesire, a former Philly NAACP president, to The Philadelphia Daily News. It’s widely viewed as an attempt by Kane to embarrass a political foe. Mondesire, who died in October, was investigated by the grand jury but was never charged with a crime.

Prosecutors say they found a secrecy oath that Kane took regarding the statewide grand juries, and allege she bucked the law when she leaked information about the investigating grand jury.

A note: There are also indicting grand juries which don’t recommend charges but instead levy them. The two types aren’t that different since the same prosecutor who would receive an indictment recommendation from an investigating grand jury is the one who runs the grand jury proceedings. In Kane’s case, we’re focusing on investigating grand juries.

Jeffrey M. Lindy, a Philadelphia criminal defense lawyer and former U.S. attorney, said that when grand juries are empaneled, the prosecutors, judge, jurors and court reporters are sworn to secrecy. But unless there is a special proceeding, witnesses and defense attorneys are not sworn to secrecy.

That means witnesses can walk outside a grand jury and tell the world what they testified to. It also means defense attorneys can conduct “parallel investigations” by interviewing every grand jury witness after they leave the grand jury room.

But for prosecutors, there are no secrecy exceptions, he said.

“It’s first year-law school that the prosecutors can’t talk about what goes on in the grand jury unless there’s an indictment or a charge,” Lindy said. “Then, of course, they can talk about witness testimony… but not if there’s no charge, as in the Mondesire case.”

When law enforcement leaks

The rules are completely different for law enforcement officials.

Chaka Fattah Jr. saw photos on Philly.com of FBI agents raiding his apartment just hours after it occurred, shot by a photographer at The Philadelphia Inquirer. He says he knew someone from the FBI must have tipped off reporters that a raid would be going down.

So he asked FBI special agent Richard Haag on the stand last week during his federal bank and tax fraud trial about it, and Haag openly admitted to telling Inquirer reporter Martha Woodall about the raid.

Fattah was convicted on 22 of 23 counts of fraud on Thursday and faces sentencing in Feburary. But he says now that he plans to file a complaint with the Department of Justice against the FBI agent in question, claiming the agent’s leak — which occurred years before he was charged with a crime — directly caused him to lose a contract that brought him $12,000 a month. Do the math? He says he lost half a million because of the leak, and was therefore rendered unable to hire a top-notch legal team.

Fattah, speaking to Billy Penn Friday afternoon, said he plans to file complaints with both the Office of Professional Responsibility and the Office of the Inspector General, both federal entities, to look into the conduct and the leak. When asked to generally explain the FBI’s rules regarding leaks by agents, an FBI spokesman declined to comment, saying “I expect you are calling about a specific incident; it would not be appropriate for us to comment.”

Lindy said leaks by law enforcement happen frequently and are left unchecked. He pointed to when the FBI bugged the office of former Mayor John Street, and it didn’t record an incriminating conversation because someone leaked to the administration that the bug was there.

“Every single time there’s an arrest and you see somebody’s mugshot in the paper, that’s a leak,” he said. “And you see someone being led out in handcuffs from their house? That’s a leak. From their office? That’s a leak. How else would you get the information? Yeah, it happens all the time. Doesn’t make it right.”

The role of the journalist

When it comes to information being leaked to reporters, we don’t have to worry much about skirting the law. As long as the reporter didn’t get the information through illegal means — breaking into an office, hacking into a computer, tapping a phone — he or she can use it.

Melissa Melewsky, a media law counsel with the PA News Media Association, said as long as information isn’t illegally obtained from sources, the reporter has a right under the First Amendment to report on it. Any liability would fall on the person doing the leaking.

She also added that Pennsylvania has a robust Shield Law, meaning that if a reporter promises confidentiality to a source and that confidentiality is upheld, the reporter can’t be compelled in court to disclose where he or she got the information from. Melewsky added that there isn’t a federal counterpart to the Shield Law, but lawyers often successfully argue that reporters have a First Amendment right to protect sources in the case of leaks.

“You have a right,” she said, “to report on anything you obtain legitimately.”

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