Leaks, leaks, and more leaks

Ortiz says she's not responsible; watchdog is toothless tiger

Illustrations by Anthony Freda

THE HEADLINES KEEP COMING. “Mayor Walsh is drawn into federal labor probe”…“Prosecutors investigate fees collected by Joyce on Randolph projects”…“Joyce’s role in solar project probed”…”Everett mayor focus of inquiry”…“O’Brien pressed by US anew”…“Everett casino plan under new scrutiny”…“Lawmakers targeted in inquiry.”

All these stories have three things in common. They all appeared on page one in the Boston Globe. They all relied on inside information about ongoing federal investigations. And each story carried the byline of Shelley Murphy and Andrea Estes, either individually, together, or in combination with other Globe reporters.

The Globe reporters in each case were just doing their job pursuing major stories. Yet the inside information contained in the stories raises troubling questions. Federal investigators are bound by strict confidentiality rules not to disclose information about grand jury proceedings, wiretaps, or other evidence they are gathering in advance of an indictment. The Globe stories don’t identify where their inside information came from, but there has been plenty of speculation that US Attorney Carmen Ortiz’s office is the source.

“This is an office that has lived on leaks,” says Nancy Gertner, a retired US District Court judge who has been highly critical of the way in which confidential information from federal investigations has been splashed across the front page of the newspaper.

Ortiz, in an interview in a ninth-floor conference room at the Moakley federal courthouse in Boston, says she is confident her office is not the source of leaks. “I know people think that, and I know that they’re wrong,” she says.

Ortiz says she suspects leaks come from the people who are subpoenaed during the course of an investigation to provide testimony or records. She says those individuals, and the lawyers, friends, and family members with whom they share the information, are not bound by the same confidentiality rules and laws as prosecutors and federal investigators. She says her staff members are well aware of the confidentiality rules and would not run the risk of losing their jobs or being prosecuted for leaking information to the press. “I don’t believe that any of these leaks have come from any of our prosecutors or this office,” she says.

Stories about the inner workings of federal investigations pack enormous punch, casting a cloud of suspicion over the target or targets of the probe. Few people read the articles with the understanding that they represent just the prosecutor’s version of events and in some cases may not even lead to a prosecution. What the public sees is a politician in the crosshairs of the US attorney’s office; the assumption is that the office wouldn’t be investigating if the pol hadn’t done something wrong.

The impact on political careers from investigatory leaks can be devastating. Former Boston mayor Kevin White is perhaps the most famous local example. News reports in 1982 indicated he and members of his administration were the target of a federal grand jury investigation. Many believe the intense media coverage of the federal investigation undermined White’s administration even though no charges were ever brought against the mayor by then-US Attorney William Weld. Years later, White tried to describe how the leaks affected him. “I realized that this was a killing and I couldn’t control what was going on,” he said.

As of press time, state Sen. Brian Joyce of Milton had not been charged with any crime, but a steady diet of stories in the Globe about a federal investigation of his business and legislative dealings prompted him to announce he would not be seeking reelection this year.  Boston Mayor Marty Walsh’s administration has been under siege since the Globe reported that his voice showed up on a 2012 federal wiretap; two employees in his administration, Ken Brissette, the director of tourism and sports, and senior advisor Timothy Sullivan have already been indicted.

Defense attorneys say they fully expect the US attorney’s office to aggressively pursue wrongdoing; what they object to is leaking confidential information to gain an advantage. Michael Kendall, who worked as an assistant US attorney from 1989 to 1996 and is now a partner at White & Case, says he has witnessed leaks at the federal and local level of law enforcement. “Lots of people leak,” he says.

Kendall says leaks occur for three main reasons. One is personal. “If you don’t like the person, you can leak information to hurt them,” he says. Second, leaks put elements of what is being investigated before the public and can attract witnesses with additional information. Third, and most troubling to him, he says leaks can “infect witnesses,” coloring how they view an incident.

Gertner says leaks and the ripple effect they have on news coverage can prompt targets of an investigation to be more cooperative. “The thinking is, what can we do to stop the bleeding,” she says. Leaks can also spur potential witnesses to be more cooperative or frame their testimony in a way to avoid being drawn into the fray, she says.  For some, Gertner says, the damage from investigatory leaks is more profound than an actual court case because there is no way to fight back. “It is not a trial where your story will come out,” she says.

Ortiz acknowledges the damage leaks can do. “Some people out there think we get some degree of satisfaction when you smudge someone’s reputation. Not so. Not so,” she says. “I don’t draw any satisfaction when someone is held up in that fashion and we haven’t completed our investigation.”

Ortiz also insists leaks hamper and impede her office’s investigations by discouraging witnesses from coming forward. “If people think that your appearance before a grand jury is going to get out and your name is going to get out and your information is going to get out there, how comfortable are you going to feel about coming to the grand jury or talking to the US attorney’s office?” she asks. “We don’t want people out there to be afraid, to become intimidated.”

SMOKE DOESN’T ALWAYS MEAN FIRE

Leaks about federal investigations grab headlines, and the investigations often lead to indictments, prosecutions, and convictions. But that’s not always the case, which is why federal investigators are barred from disclosing details of a probe until the case moves into court. The goal is to ferret out wrongdoing, but do it in a way that doesn’t cause collateral damage.

The name of William Lantigua, the former mayor of Lawrence, is almost synonymous with corruption. During his time in office, federal and state investigations spun off all sorts of headlines suggesting wrongdoing by his administration, everything from shipping city vehicles to the Dominican Republic to paving city roads in a way that would maximize turnout of his supporters. In the end, three members of Lantigua’s administration and one police officer were indicted. Two were convicted, one was acquitted, and one is still awaiting trial. Lantigua himself was never charged. The coverage dealt a major blow to his 2013 bid for reelection, which he lost by 60 votes.

Globe reporters Estes, Murphy, and Mark Arsenault reported in November 2013 that a federal grand jury was investigating the involvement of a convicted felon in a group of investors selling land in Everett to Wynn Resorts for a casino. The story, mirroring a theme espoused by federal investigators, indicated a felon’s involvement in the land deal could result in the Wynn project being rejected by regulators. A follow-up Globe story in June 2014 was even more emphatic. “It is illegal in Massachusetts for felons to have a financial stake in a casino, which regulators have interpreted to include an indirect stake such as owning a casino site,” the Globe reported.

The US attorney’s office subsequently indicted the felon, Charles Lightbody, and two members of the Everett investor group. During the trial, defense attorneys demonstrated through witness testimony that there is no legal prohibition on a convicted felon selling land to a casino operator. The case ended up hinging on whether Lightbody and the two members of the Everett investor group lied to federal investigators in an effort to conceal Lightbody’s involvement. A jury found the three men not guilty in late April.

Even those with prosecutorial backgrounds can find themselves the target of leaks. Michael O’Keefe, the district attorney for the Cape and Islands, came into the crosshairs of the US attorney’s office in 2010. A Boston Globe story in April of that year said a federal grand jury was investigating allegations of public corruption against O’Keefe. The story, written by Murphy and Jonathan Saltzman, cited as its source several people with direct knowledge of the investigation. It also quoted O’Keefe’s attorney, J.W. Carney Jr., who cautioned that grand juries often look into rumors that turn out to be untrue.

No charges were brought against O’Keefe, who remains in office today.

In May 2005, Murphy and Estes reported that federal prosecutors were investigating whether Andrea Cabral, a former Suffolk County prosecutor who at the time was the Suffolk County sheriff, had lied to a grand jury. The story, citing two sources with direct knowledge of the investigation, said prosecutors, led by then-US Attorney Michael Sullivan, were considering bringing perjury or obstruction of justice charges against her.

Cabral at the time demanded that Sullivan investigate how details of a grand jury probe ended up in the Globe. She says to her knowledge no investigation of the leak was ever conducted; the grand jury probe itself never led to a prosecution. “It’s harmful because it never gets taken back,” she says of leaks. “There is no recourse that I know of for people who are victimized by the people who are supposed to be enforcing the law. The problem is [federal investigators] watch themselves.

Cabral says it’s a crime to lie to a federal investigator and a crime for a federal agent to disclose information from an investigation. “One is enforced,” she says. “The other isn’t.”

LITTLE RECOURSE

David Ganek, a wealthy New York hedge fund manager, is suing Preet Bharara, the US Attorney for the Southern District of New York, which includes Manhattan. Ganek alleges that Bharara and his team of prosecutors fabricated evidence to obtain a search warrant in November 2010 for the offices of Ganek’s hedge fund and then tipped off the Wall Street Journal about the raid. No charges were ever filed against Ganek, but the raid and the subsequent news coverage led to the collapse of his hedge fund, which employed 60 people overseeing more than $4 billion in assets. Gertner, who is one of the attorneys representing Ganek, says a lawsuit is one of the few ways to hold federal prosecutors accountable.

The standard approach to a leak is to file a complaint with the Office of Professional Responsibility, or OPR, a unit inside the Justice Department that investigates prosecutorial misconduct. Ortiz, in fact, lists OPR as one of the watchdog agencies that could discipline attorneys who violate confidentiality rules regarding investigations.

The available evidence, however, suggests the Office of Professional Responsibility is a toothless tiger when it comes to investigating leaks to the media.  Records available on the office’s website don’t provide a complete picture, but it appears the agency investigated about 20 complaints of unauthorized disclosures to the media around the country over the 10-year period from 2005 to 2014. Most of the cases were dropped at the preliminary inquiry stage, but even those that warranted further investigation resulted in only minor disciplinary actions.  The annual reports of the agency include brief summaries of some of the investigations; they are written in a way that conceals the identities of those involved and the location of where the incidents occurred.

spot

In its 2012 annual report, the office identified two cases where prosecutors engaged in “intentional professional misconduct” by leaking materials to the media. In one case, the prosecutor resigned before the conclusion of the investigation so no disciplinary action was taken against him other than a referral of the findings to the local bar organization.

In the other case, the office found that a Justice Department attorney “acted in reckless disregard of department policy” by leaking investigatory materials to the media. The matter was referred to a disciplinary arm within the OPR, which concluded the prosecutor did not commit “professional misconduct” because “contacts with the media were condoned and actively encouraged by the DOJ attorney’s office, and that the DOJ attorney had not received training on department policy regarding communications with the media.”

Shown the write-up of the 2012 OPR investigation, Ortiz says her office does not allow prosecutors to speak directly to the media unless given approval by her or her press officer. She said policies on talking to the media differ from agency to agency within the federal government and among the 94 US attorney offices around the country.

In a number of other cases involving leaks to the media, the OPR decided not to pursue the matter because it would be too difficult to track down the culprit. In 2008, for example, an attorney complained that Justice Department officials were leaking grand jury information about his client to the media. The OPR conducted a preliminary inquiry and concluded the “universe of individuals” with access to information on the grand jury was too large to warrant further investigation.

House Speaker Robert DeLeo encountered this same “universe-of-individuals” dilemma when he tried to track down who leaked to the Globe a sealed deposition the Speaker gave in 2010 to an independent counsel investigating corrupt hiring practices at the state Probation Department.  DeLeo declined to talk to CommonWealth, but it’s a good bet he suspected Ortiz’s office as the source of the leak since her lieutenants labeled the Speaker an unindicted coconspirator in 2014 during the trial of three top Probation officials. DeLeo called the tactic “unconscionable and unfair,” but there was little he could do about it.

On October 28, 2015, the Globe ran a front-page story by Estes and federal court report Milton Valencia that suggested the Speaker was less than truthful in his 2010 deposition. That conclusion was reached by comparing his sealed testimony in 2010 to testimony delivered by witnesses at the Probation trial in 2014. DeLeo insisted his testimony was taken out of context by the Globe, and asked how the Globe had access to a document that was supposed to be sealed from public view. He said he didn’t even have a copy.

DeLeo called for an investigation into the leak, and followed up two days later with a formal request to Ralph Gants, the chief justice of the Supreme Judicial Court. Gants subsequently asked the Department of Justice, the state attorney general’s office, and the State Ethics Commission to hunt for the source of the leak.

Seven months later, Gants reported back that none of the law enforcement agencies said they were the source of the leak. He also filed in court a letter from Robin Ashton, counsel for the OPR, who said her agency interviewed the DOJ attorneys who had access to the deposition transcript and each one denied providing it to the Globe. Ashton noted the DeLeo deposition had also been provided to defense attorneys and their staff as part of discovery.

“Because the universe of individuals outside the Department of Justice who had authorized access to Speaker DeLeo’s transcript is so vast,” wrote Ashton, “and because the Department of Justice attorneys emphatically and credibly denied providing the transcript to the Boston Globe, the Office of Professional Responsibility has determined that further investigation of this matter is not likely to lead to a finding that any Department of Justice attorney was the source of the unauthorized disclosure of the DeLeo transcript to the Boston Globe. Accordingly, OPR has closed its inquiry in this matter.”

Gants meekly went along. In a letter to DeLeo, he said: “After considering the responses, the Justices have concluded that there would be no likely benefit from any further inquiry, so at this point we deem the matter closed.”

O’Keefe, the district attorney for the Cape and Islands, was astounded at the Justice Department’s lackadaisical investigation and Gants’s response.  “This situation would be akin to a district attorney saying in the investigation of a bank robbery or murder that we asked the suspects if they did it, they said no, so we deemed the matter closed,” he wrote in June in an op-ed in CommonWealth.

In its own criminal investigations, the US Attorney’s office often subpoenas phone and email records of suspects, wiretaps their phones, and trails them. The Office of Professional Responsibility doesn’t appear to do any of that.

Meet the Author

Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

“The larger question is what is going to be done about this issue of leaking and what’s going to be done by journalists, who are complicit in the crime,” O’Keefe says in an interview. He says reporters can’t say they are just doing their jobs, likening that argument to the getaway driver who complains he had nothing to do with a person killed during the course of a robbery.

Speaker DeLeo, who tried and failed to track down the source of the leak about him, is now saying nothing. His office ignored repeated requests for comment. One person close to the Speaker says fear is keeping him silent. Despite being one of the most powerful people on Beacon Hill, DeLeo is wary of pushing too hard against the US Attorney’s office.  A speaker serves at the pleasure of the members of the House, the person points out, but increasingly he also serves at the pleasure of the US Attorney’s office. The last three speakers prior to DeLeo all left their jobs under the cloud of federal investigations that ultimately led to convictions.