Labor union leader and Obama administration appointee Andrew Stern's politics are way to the left of mine, and on top of that he got a better deal than I did out of Simon & Schuster for selling fewer books than I have, so I'm probably about the last person you'd expect to come leaping to his defense. But one of the principles around here at FutureOfCapitalism.com is that the principles we espouse should apply to everyone equally, whether they are Wall Street bankers or left-wing labor leaders. So, in the spirit of our earlier post headlined "Plumbing the Leaks on Bank Prosecutions," let me just say that the spate of articles reporting that Mr. Stern is being investigated by the FBI are troubling, and should be troubling to anyone who believes in the due process rights that are enshrined in the Constitution.
One example of the coverage is a dispatch by the Associated Press being linked by the Drudge Report. It says, "The FBI and the U.S. Labor Department are investigating prominent labor leader Andy Stern in their probe of corruption at the Service Employees International Union, according to two people who have been interviewed by federal agents....Both officials spoke on condition of anonymity because of the sensitive nature of the investigation. The FBI and the Labor Department's office of inspector general declined to comment for the record."
This "declined to comment for the record" formulation is one of the oldest tricks in the book. If the FBI has simply declined to comment, the Associated Press might have just ended the sentence after the word comment. "Declined to comment for the record" is another way of saying "declined to comment for the record, but spoke to the reporter 'on background' to spin the story or turn up the pressure on Mr. Stern."
Some background from the post on plumbing the leaks on bank prosecutions:
Here is some guidance on the matter from the Justice Department's manual for U.S. attorneys:
Disclosure of Information Concerning Ongoing Investigations
A. Except as provided in subparagraph B. of this section, components and personnel of the Department of Justice shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress, including such things as the issuance or serving of a subpoena, prior to the public filing of the document.
B. In matters that have already received substantial publicity, or about which the community needs to be reassured that the appropriate law enforcement agency is investigating the incident, or where release of information is necessary to protect the public interest, safety, or welfare, comments about or confirmation of an ongoing investigation may need to be made. In these unusual circumstances, the involved investigative agency will consult and obtain approval from the United States Attorney or Department Division handling the matter prior to disseminating any information to the media.
Here is some more guidance from the same manual:
There are exceptional circumstances when it may be appropriate to have press conferences or other media outreach about ongoing matters before indictment or other formal charge. These include cases where: 1) the heinous or extraordinary nature of the crime requires public reassurance that the matter is being promptly and properly handled by the appropriate authority; 2) the community needs to be told of an imminent threat to public safety; or 3) a request for public assistance or information is vital.
As we said then, if the FBI is out tarring firms, or, in this case, Mr. Stern, by making accusations of criminal behavior from behind a veil of anonymity provided by the press, you'd think it'd be the sort of abuse of power that the press would want to be investigating rather than facilitating. This is such a fundamental concept in American law and liberty that it is enshrined in not one but two amendments to the Constitution; the Fifth, which provides "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," and the Sixth, which says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him."
In this case, Mr. Stern hasn't been indicted or formally charged with any crime, yet he's having his name dragged through the mud in the press as the subject of an FBI investigation. Maybe this meets the interests of his anonymous political foes within the union or of the press in selling newspapers or getting page views with sensational if unproven allegations against well-known individuals. But the whole concept of floating someone's name as "being investigated" by the authorities on the basis of a report from anonymous sources is reminiscent of Soviet Communism. It's ugly stuff, whether it is the name of Goldman Sachs that is being smeared or the name of Andrew Stern.
And it seems unlikely that Mr. Stern's case is one that meets the standards of the Justice Department for public disclosure of an investigation. The "imminent threat to public safety" exception would seem particularly far-fetched to apply here. "Stop Stern before he victimizes CBS shareholders by taking Simon & Schuster for another excessively generous book contract!" It's not exactly the proverbial serial killer on the loose. If some prosecutor really thinks the book industry is vulnerable to being preyed on by Mr. Stern, the least the prosecutor can do is come out publicly and put his or her name behind the claim rather than authorizing the FBI to whisper to reporters about it, or allowing the FBI to whisper unauthorized, which amounts to the same thing.