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mark corallo

Corallo was director of public affairs for the U.S. Department of Justice under then-Attorney General John Ashcroft from 2002 to 2005. In that role, he had a say in approving or denying requests from U.S. attorneys and the FBI to subpoena journalists. This is an edited transcript of an interview conducted on July 11, 2006.

... What [was] your job ... at the Justice Department?

... I was the director of public affairs for the United States Department of Justice from 2002 to 2005. ... That job is the chief spokesman job. ... Other than the attorney general, you're the number-two face in the department.

And as I understand it, you played some role in helping to decide whether to subpoena journalists. ... How does that work? And why were you in the chain of command if you're just a PR guy?

There was a policy in place at the Justice Department -- going back to the Nixon administration, believe it or not, ironically -- that the director of public affairs would be involved in those cases where a U.S. attorney or someone at the Justice Department felt that a subpoena to a member of the media was required. That was in all cases, regardless of it being what we would call a hostile subpoena -- a subpoena for a confidential source -- or a friendly subpoena, where, for instance, you just need the tape of a broadcast from the 6:30 news. ...

And did you approve them?

No. Let me run you through the process, ... because I think it's helpful for people to know.

First of all, the guidelines are very clear: that a media subpoena should only be sought when all other avenues of investigation have been foreclosed and exhausted, and only in exigent circumstances. And exigent circumstances, when I arrived, they were explained to me to be grave national security matters or instances of really life and death or physical harm to people. ...

Emergencies.

Yeah, emergencies.

Life and death.

Life and death. ... I got dozens of [requests to subpoena journalists] in my three-year tenure. I approved one. And I let it go for two years, and I struggled with it.

“One of the bargains we make in having a free press is that every once in a while ... sensitive information gets published.”

What do you mean, you let it go for two [years]?

I made the prosecutor come back to me several times over the course of two years before I approved it. When it leaves the public affairs director's [office], ... it goes to the deputy attorney general, who can override the public affairs director, but it never happened in my tenure. Then it goes to the attorney general. Under Attorney General Ashcroft, it was very clear that if I said no, it stopped right there. That was the end of it.

... Attorney General Ashcroft always said no?

Attorney General Ashcroft always said no. He agreed with me on every single case.

Do not subpoena the journalists.

Correct.

Except one case.

Except one case.

Can you tell us about that case?

I can't tell you about that case. It was a national security case. I believed, after long reflection, that it did put innocent people's lives in danger, our allies, people in other countries who would be subject to terrorist attacks. The case was so egregious; it was such a horrible instance of unethical behavior by a journalist to boot. ...

Why were these guidelines created?

... Just because the law says you can do something doesn't mean you always should do it. I think that principle, even in the Nixon administration, was understood to be an important principle. ... I haven't seen a court yet that has formalized this, what we consider to be this privilege that a reporter has with ... his or her sources. But I think they understood that we'd better recognize it somehow; that there ought to be some statement that within the government ... recognizes that very important privilege. Let's face it: The press is the last line of defense in a free democracy. ... If you see widespread corruption, and you don't feel that there's anywhere else you can go, well, thank God for a free press. ...

The Valerie Plame investigation began as a Justice Department investigation. At a certain point, a special counsel was appointed.

Correct.

Before the special counsel is appointed, was there, to your knowledge, any request to interview a reporter?

No, there was not, and I would have seen it. But there was not.

... When a special counsel gets involved, then the rules change, right?

... Mr. [Patrick] Fitzgerald, his appointment was different from other special counsels. He was given the authority of the attorney general. ... The attorney general has the authority to ... allow a prosecutor to seek a subpoena for a reporter's sources. But the attorney general has to live within those guidelines [for subpoenaing reporters], and Mr. Fitzgerald chose not to. ... Thus we have [Time magazine reporter] Matt Cooper and [New York Times reporter] Judy Miller and [NBC's] Tim Russert and a whole slew of reporters who have been hauled in front of grand juries.

... It appears that the [FBI's] initial investigation came to the conclusion that this was basically hardball politics in Washington, and there was nobody who was really conspiring to out an agent.

... I've worked in media, on the spokesman side, for over a decade, and when you read a news story and you see something that is attributed to an unnamed source, you can generally get at the motive. When I read the [Robert] Novak column, I saw the mention of [former Ambassador Joseph] Wilson's wife as a throwaway line.

If I were reconstructing what happened in that conversation between Bob Novak and his source, it would have been something like this: Novak says to his source: "So this Wilson guy, he goes off to Niger. Why did you send him there?" And the source said: "Whoa, wait, hey. He's not ours. The agency [CIA] sent him." And he says: "Yeah, but wait a second. He's an ambassador. The guy's a State Department guy. Why would the agency send him? What would they have to do with it?" "Oh, well, you know, his wife works at the agency; she works in WMD [weapons of mass destruction]. She put him up for it." "Oh, OK. That makes sense."

I think it was that simple. I think that's what spawned this whole thing. ...

But the information came to Novak as part of an effort, if you will, to defuse or to somewhat discredit Joe Wilson's allegations [that the Bush administration had exaggerated the threat of weapons of mass destruction in Iraq to justify the war].

Yeah. I think that's the right way to put it: to discredit the substance of his allegations. I don't think that there was ever any intent to out an operative, to harm Joe Wilson. I don't think there was any attempt to smear Joe Wilson. I think it was simply hardball politics. ...

... Let me just ask you straight out: the indictment of [Vice President Dick Cheney's then-Chief of Staff] Scooter Libby. Deserved it?

I couldn't comment on it. It's a pending case. Obviously I have my own personal feelings about it. As you know, I consider him a friend. and I'm just hoping that he pulls through it and is acquitted. ...

... If the Valerie Plame investigation had stayed in the hands of Attorney General Ashcroft, ... what would you have done?

I would have done what I did in every case. I would have looked at the evidence as presented by the prosecutor, and I would have made a determination based on that evidence in regard to the guidelines: Are there lives at stake? ... Was grave damage done to national security? If they didn't meet that standard, then I would have said no.

And based on what you know about the case?

Based on what I know about the case, which is only what's public, I probably would not have, but it's hard to tell. I can't say definitively. I don't think it would be fair to Pat Fitzgerald. ... That was his decision.

But I think this is the problem when you have special prosecutors who are not subject to any other authority. When you have a clear precedent, a 40-year precedent that is basically being ignored, someone needed to be able to step in and say, "Stop; wait a second." ...

[Why did you submit an affidavit in the BALCO investigation?]

I felt that, personally, this was an abuse of power. ... I felt that in the BALCO case the government just did not meet the standards set by their own guidelines. The Justice Department has very clear guidelines about subpoenaing reporters for sources. This one doesn't even come close. There's no grave national security matter here. There is absolutely no harm to life or limb. The only harm to life or limb comes from the drugs. ...

And these two guys, [San Francisco Chronicle reporters] Mark Fainaru-Wada and Lance Williams, cleaned up baseball. ... I'm a Yankee fan; when you say DiMaggio and Mantle, I genuflect. And the idea that these guys cleaned up a game that I love, that they should be subject to this kind of abuse in a case that was already prosecuted and closed, where you had a defendant who pled guilty and already served his jail time -- ... without that leak, baseball maybe doesn't confront the problem.

These are two gentlemen that the president of the United States called heroes and said did a great service to their country. I agree with that; I think they are heroes. And I think there comes a time when the Justice Department has to look at a case -- a leak case -- and say there's no reason to go forward here; there's no good reason to do this. ...

What's the problem here? Your successor is not a baseball fan?

I don't know. I don't know what's happened here. It seems that there has been a policy shift. It seems that -- the way we operated under Attorney General Ashcroft, where we were absolutely committed to not issuing one of these subpoenas. That seems to have changed. ...

... Let me put myself in the position of a prosecutor who would say, look, there is a rule; it's called 6(e). It says anything that goes on inside a grand jury is supposed to stay in the grand jury. ... These gentlemen got a leak of this information, published it, damaged reputations, presented information that should never be public, and are making money off of it. And one of the people who is named in the grand jury in this case, [the San Francisco Giants'] Barry Bonds, has filed a civil action on this exact point, that his rights have been violated. So we have to investigate. This is what the guidelines were there for. … Rule 6(e) is sacrosanct to prosecutors and to the Justice Department, as well it should be.

But again, there's a bigger picture here, and you have to weigh the damages. ... If grand jury information is leaked, there is going to be some damage. But I would submit that there's a greater damage when you try to haul in a reporter who is just on the receiving end of the information and threaten to put that reporter in jail for protecting a source.

This is not a case where anybody's life is in danger. I think even Mr. Bonds realized that he didn't have a case and has dropped his case. I just think that the Justice Department was way out of line here. ...

… The current attorney general [Alberto Gonzales] has said that while he appreciates and respects the importance of the press [doing] its job, we also can't have a situation where someone who does a terrible crime can't be prosecuted because of information that's in the hands of the reporter.

I absolutely agree, and that's why this is done on a case-by-case basis. But I want their definition of "horrible crime." The guidelines are pretty clear that a horrible crime in these matters has to involve either national security or real physical harm. ...

There's a sense today -- in part because of the BALCO case, but also because of all the other cases -- that the rules have changed; that in a sense, this ... truce between the press and the federal government is over.

I think there has been a shift in the way the government views the privilege, this reporters' right to keep their sources confidential. And that's, I think, disheartening. ...

My good friend [former U.S. Solicitor General] Ted Olson wrote a column for The Washington Post a couple weeks ago where he argued for a federal shield law for reporters. I never believed that that was necessary, because I always believed that ... people at the Justice Department were responsible enough to live by the guidelines; that they would only use it sparingly, in exigent circumstances, as defined. That seems to have changed. ...

Attorney General Gonzales has now hinted that maybe journalists should be prosecuted under the Espionage Act. ... [Did] that come up when you were in the Justice Department?

I never heard that before. However, I'm never going to foreclose any option that the government has, because you wouldn't want a reporter to be able to hide behind that so-called First Amendment shield and actually be a foreign agent.

However, I think that this is where we've all got to take a deep breath. From the attorney general on down at the Justice Department, and from the editor of The New York Times on down in the media, everybody needs to take a deep breath and step back and think about their roles, and think about what's good for America. I don't think it's good to be clapping journalists in jail. I also don't think it's good for newspapers to be deciding what national security secrets should be kept secret and what shouldn't. So there's got to be some balance.

But [on the NSA eavesdropping story,] The New York Times ... says that it not only waited 14 months, it listened to the government's arguments initially. It did more reporting. It discovered that there were many people inside the government who were critical of this program, ... thought it was illegal. … And they decided for those reasons it was worth publishing. [The Times says] that they didn't publish actual sources and methods, and that everyone, including the Al Qaeda people, know[s] they're being bugged.

Yeah, you can make that case. ... Again, I don't think it's up to a news organization to decide what's secret and what isn't. ... I guess what offends me is that when you are a government official, and you are entrusted with keeping classified information secret and you take an oath, ... if you divulge this, you've broken the law. You may have put people's lives in danger; you may have put my family's life in danger.

There are other ways to satisfy your concerns about a classified program. There are whistleblower laws. ... They could go to any member of Congress and say, "I have a concern about a program we're working on; I have a concern about the legality," and let Congress deal with it. That's what they're there for. ...

But doesn't it become a catch-22? Because they can't then talk about it either, the members of Congress. They can't go to the press and talk about a classified program any more than anyone else can without violating the law.

That is true. But ... I guess there's some leeway for a senator. ... I just look at some of those leaks, and unfortunately I think they were politically motivated, and there were other ways to handle it. Now, it doesn't mean that I believe that the reporters should be subpoenaed.

There's a major leak investigation going on ... about this [National Security Agency (NSA) wiretapping] and other cases as well. ... Have they interviewed you?

I've been interviewed.

Did you give up your sources?

I didn't know anything about the program.

So you've never been briefed?

No, I was never briefed.

What did [the FBI] ask you?

They just wanted to know why these kinds of leaks happen. ... I said: "Well, unfortunately, ... 99 percent of the time it's politics. But it's that 1 percent that's seriously concerned about the program that has to be protected."

I don't know the facts of the case. ... I don't know what kind of damage assessment has been done. But I'd want to see all of that if I was at the Justice Department and I had the responsibility of subpoenaing a reporter. ...

... How do you describe the outpouring of invective and attack that's taken place since the [SWIFT] financial terrorism surveillance program was revealed [by The New York Times]?

I think that the public and the politicians have had enough. In this particular case, with this SWIFT program being divulged, people got a sense that real harm was done in divulging it; that there were no legal issues; ... that it was completely legal; that it was an incredibly helpful tool in the war on terror. And the public looked at it and said: "Hey, who gives you, [New York Times executive editor] Bill Keller, the right to determine what makes me safe? You just made me less safe." I think that's what did it.

But in this case, The New York Times took at least four or five months before they published. ... The SWIFT group itself had questions about its legality a number of times. And as far as we know, the operation continues. ... So where's the damage?

The damage is in divulging secrets to our enemies. The damage is that they watch us closely. The damage is that they know -- or they want to know -- everything we're doing, and it's in our interests to keep everything that we possibly can secret from them. I think the public looked at this one and said there was no good reason: It didn't involve American citizens; there were no constitutional issues here. This is strictly arrogance by what they see as the elite media, The New York Times.

But there are American citizens involved in some of the surveillance and the financial transactions. They're not excluded.

Well, they are, but it's very targeted, as I understand it. Again, I don't know anything about the program, but from what I've read, it's a very targeted program. But again, this is a program that Congress was briefed on in full only once the administration knew that The New York Times had the story. Well, interestingly enough, when you look at the fallout from this story, you didn't hear any of the Democrats screaming at the administration over this one. ... They didn't feel that they could defend The New York Times on this one, and that says a lot.

I think that Bill Keller's public explanation lit the fire even more. It was this sort of, "Well, even though we knew that there were really no concerns, hey, everybody knew about it anyway, so we're going to publish it." Well, most people in America didn't know about it, and I think people were offended by it. I think they just found it to be arrogant. ...

[What about] the president of the United States saying it's a disgrace; congressmen saying The New York Times should be prosecuted for treason; the attorney general saying that the Espionage Act may come into effect here? ... Quite frankly, it looks like a political strategy.

There's always going to be a good, healthy amount of politics in this, and no Republican has ever gone broke attacking The New York Times. Then again, The New York Times editorial page has never gone broke attacking a Republican. ...

... I'm looking at a quote from a memo on Oct. 12, 2001, and the attorney general is saying, "When you carefully consider FOIA [Freedom of Information Act] requests ... and decide to withhold records in whole or part, you can [be] assured" -- he's talking to people in the government of the United States -- "that the Department of Justice will defend your decisions"; that is, not to release information. Really just the opposite of the policy or the memo that went out under Clinton and [Attorney General Janet] Reno in the previous administration.

That's true. And the reason that Attorney General Ashcroft had that memo drafted and implemented was because he got complaints from the professionals that dealt with the Freedom of Information Act. They had serious concerns about Privacy Act suits. They had serious concerns about ongoing case matter being divulged. ... That memo is the fix.

In practice, because I have to deal with this from day one of my tenure at the Justice Department, I always checked with the career professionals in the FOIA office to find out, how's it working? Has it limited information flow? What's the change? The practical effect was there was no change.

... I hate to make this broad a statement, but ... the journalism community as a whole, even parts of the academic community, believe that this administration has been the least forthcoming in terms of freedom of information. ... And we just saw this whole thing where ... there were documents that they want to now reclassify that are in [the] National Archives. That's never happened before.

No, I agree. ... First and foremost, we have to remember that we are at war, and we have never had a war like this. Every day is a new day in this war on terror. This is not anything any American president has ever had to deal with. No administration has ever been faced with an enemy that wants to kill us the way these guys do. ...

But you know that all government bureaucracies don't like to reveal what they're doing to the public. It doesn't help them.

But in this case, that's their job. The FOIA office is not there just to put information out. It's there to make sure that -- particularly at the Justice Department -- that the integrity of investigations is maintained, that Privacy Act concerns are protected. ... They wanted to be able to take more time, have a more critical eye, when they looked at these things. ...

... Andrew Card, the now former chief of staff, has said that he doesn't believe that the news media have a real role as a watchdog, as part of the balance of power in government.

I've seen that quote. I would strongly disagree with Mr. Card. I look at the founding of this country, and I see a bunch of very, very wise men who sat down and said, we've got to do something different here. We have to make freedom real; we can't just say that we're free. We've broken off from the mother country. We've actually got to institute these things. We have to back them up, and the one thing that's going to keep us honest is a free press. That's [as] true today as it was in 1789. It has not changed. And you can love them, you can hate them, but by God, they do have a role. ...

... These people in the Justice Department and a lot of other people in the administration, they don't want to give out the information. They are hostile to the press. I mean, all administrations are hostile to the press, but they talk about prosecution. ... It's a public war.

I guess it's amusing to me that John Ashcroft was perceived as being hostile to the press, and the opposite was true. ... He was not the warm and fuzzy type, but he certainly understood the role of the press, and [now] ... there's a different cast of characters, and I guess they see things a little differently.

How differently?

Well, obviously they're not shy about subpoenaing reporters, ... as in the BALCO case. I should elaborate on that a little bit, because the other thing that upset me about the BALCO subpoenas is that it sends a signal to the prosecutors out in the field that this is OK now; it doesn't have to be national security. Go ahead -- send them up here; send those requests up, because guess what? We're going to stamp them "approved" now. ...

The press in general doesn't just feel that this administration, let's say, wants to put them in jail, but they got spun ... in the run-up to the Iraq war and even up to today. ...

I disagree. ... I think that there is an obvious and necessary tension between any administration and the press. I think with this administration, you have a war going on. You have a war on terror that includes --

But this started before 9/11 -- the resistance of Vice President Cheney to give up information about his meetings and his energy task force. ... The administration doesn't want to give out information about what it's doing.

I think that there was a feeling early on in this administration that the previous administration, due to scandal after scandal, gave up a lot of executive power, and that they were going to bring it back into balance. And I think that this administration said, "You know what? No way." ... And 9/11, it changes everything. ...

... If the Justice Department continues issuing subpoenas in regular criminal cases for sources, as well as in these leak investigations that may result in subpoenas of reporters, what is that going to do to our democracy?

It's going to do exactly what I said it would do in my affidavit, which is why I filed this affidavit in the BALCO case: It's going to have an incredible chilling effect on the press. It is going to make people on both sides, meaning the reporter and the sources, a lot less likely to talk to each other.

One of the bargains we make in having a free press is that every once in a while -- and in this town it's almost on a daily basis -- sensitive information gets published. Ninety-nine percent of the time, a, it does no damage, and b, nobody really even knew it was sensitive. If we continue down this road, ... I think it's going to have a real damaging effect on our democracy. …

What I really hope is that you don't see a poll of the American people where 80 percent of them say it's OK. I mean, that's when we really have problems. ... That's when you have to wonder, where did we lose the battle? I hope that others will stand up and say: "Well, let's talk about this, folks. Let's not do this."

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posted feb. 13, 2007

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