{"id":52285,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/is-mark-felt-aka-deep-throat-a-laudable-whistleblower-or-an-immoral-snitch.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"is-mark-felt-aka-deep-throat-a-laudable-whistleblower-or-an-immoral-snitch","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/is-mark-felt-aka-deep-throat-a-laudable-whistleblower-or-an-immoral-snitch.html","title":{"rendered":"Is Mark Felt, a.k.a. “Deep Throat,” a Laudable Whistleblower, or an Immoral Snitch?"},"content":{"rendered":"\n
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Is Mark Felt, a.k.a. “Deep Throat,” a Laudable Whistleblower, or an Immoral Snitch?
A Question that Will Define His Place In History, And Influence Our View of Anonymous Sources<\/span><\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Jun. 09, 2005<\/td>\n\n <\/tr>\n <\/table>\n

I have a friend who is the daughter of a criminal defense attorney. She likes to joke that her father only spanked her for one thing: snitching about her older brother’s bad deeds.<\/p>

I was reminded of this joke last week, when Mark Felt admitted, after 30 years, that, indeed, he had been the infamous Deep Throat — the anonymous source who kept alive The Washington Post<\/i>‘s investigation of Watergate and, ultimately, helped force President Richard Nixon from office.<\/p> \n\n

Judging from the reaction to Felt’s self-revelation, my friend’s father has at least one thing in common with much of America, including its punditocracy: Nobody likes a tattletale.<\/p>

Thus, in the days after Felt’s identification became public, a host of stories appeared asking the same basic question: Is Felt a hero, or a villain, for leaking Nixonian secrets to the media?<\/p>

Pardon me, but I thought this was an easy question. It never occurred to me that you could be considered a villain for risking your career to expose a web of felonies being spun at the very highest levels of government. Nor did I ever, in my wildest dreams, imagine that it could be deemed blameworthy to have helped stop Nixon and his cronies from covering up their various efforts to destroy political enemies, steal elections, and subvert democratic dissent.<\/p>

Yet others seem to come equally easily to the opposite conclusion: that Felt was, indeed, a villain. There seems to be a strong tide running against the Felts of the world – and we need to be thinking more about whether that tide is good or bad for the country. <\/p>

In this column, I’ll consider some of critics’ arguments that Felt is a villain, and delve into the broader meaning of the Felt issue for the way we view anonymous sources, more generally.<\/p>

The Case For Felt-As-Villain<\/b><\/p>

Felt’s critics point out, for instance, that Felt, who was the number two man at the FBI back then, probably was not acting out of the purest of motives. When J. Edgar Hoover died, Felt apparently thought he deserved the top job — but Nixon passed him over in favor of a political crony, L. Patrick Gray. <\/p>

\n\nIf critics are to be believed, Felt’s resentment was a prime motivation for his talking out of school to a rather sycophantic Post<\/i> reporter he knew, named Bob Woodward. And his motive for revealing his identity as Deep Throat now is no more savory: He wants to cash in on a book advance before he goes to meet his Maker.<\/p>

Critics also point out – last but not least — that Felt also broke a bunch of rules, both written and unwritten. High-ranking G-men aren’t supposed to go around leaking White House secrets. Felt was supposed to stick to his day job, which at that time meant running the Bureau department best known for its “black bag” jobs (that is, its unconstitutional searches).<\/p>

Are their arguments right? <\/p>

Should Felt’s Mixed Motives and His Rule-breaking Make a Difference?<\/b><\/p>

You know what? Even after considering all these arguments, I still don’t get it. <\/p>

Sure, it would have been great if Felt had spoken to Woodward, and if he had revealed his identity now, out of the purest of motives. But it didn’t happen that way. And so what?<\/p>

Everyone acts out of mixed motives. Were Woodward and Bernstein fueled as much by pure ambition, as by a desire to unearth government corruption? Was Senator Sam Ervin, of Watergate committee fame, nothing but a constitutional purist of the most beneficent variety, or did he have political motives too? <\/p>

It would have been great, too, if Felt had somehow managed to reveal the worst Presidential wrongdoing in our history without breaking a single rule – or if the wrongdoing had somehow magically come to light without anyone<\/u>‘s having to blow the whistle. <\/p>

But to imagine this could have happened is a pipe dream: The very insiders who were aware of Watergate, were the same ones whom the law, according to critics’ interpretation, gagged from talking about it. Either someone was going to break the law, or the public was going to remain ignorant forever – and the President was going to keep right on presiding over criminal activity. <\/p>

People do great things for less than great reasons – and in less than ideal ways — all the time. The measure of whether these people can nonetheless properly be admired (maybe even treated as heroes) is whether other people in the same position were as willing to achieve the same good ends for better reasons, or in better ways.<\/p>

What Makes Felt a Hero: The Willingness to Stand Alone to Blow the Whistle<\/b><\/p>

Felt passes this test with flying colors. Hardly anyone else – and certainly few, if any, with his insider status – was willing to blow the whistle on a White House bent on self-preservation, at whatever cost to truth, or law, or constitutional governance. <\/p>

Deep Throat only had to be Deep Throat because<\/u> no one else was willing to talk. Dozens of people knew the Nixon White House was rotten to the core. Yet out of misplaced loyalty, or complicity, or plain old fear, no one wanted to break ranks and take the risk. Felt had the guts to do otherwise, even if revenge was part of his motive – and for that we owe him a helluva lot.<\/p>

Deep Throat’s Heroism Shows It Can Be Vital to Preserve Sources’ Anonymity<\/b><\/p>

Whether we view Mark Felt as a hero or villain has broader implications, too. It will define the legacy one man and his role in uncovering a potentially Constitution-threatening political scandal. But it may help define how we view anonymous sources, more generally. <\/p>

Without anonymity, Felt would never have spoken to Woodward – or would have been summarily fired – and probably prosecuted as well – as soon as he did speak. So if you consider Felt a hero, you will see anonymity as the sword with which he smote wrongdoing. But, on the other hand, if you consider Felt a villain, you will see anonymity as the cloak behind which he hid his own mixed motives and rule-breaking.<\/p>

Inside the media establishment, a fierce debate has broken out about the propriety of using anonymous sources like Deep Throat. Newsweek<\/i>, in the wake of having to step back from its Koran abuse story, has rethought its practice of relying on such sources. <\/p>

Meanwhile, the Justice Department – with remarkably little resistance — is pushing contempt charges against several journalists, in order to force them to reveal anonymous sources in connection with the investigation into the leaking of Valerie Plame’s identity as a CIA agent. <\/p>

Granted, these leakers are no Deep Throats: Their leak, it appears, was not geared to serve the public interest at all; rather, it seems to have been geared solely to take revenge on Plame’s husband by putting her in jeopardy. But their case will nonetheless set precedent as to whether reporters who rely on Deep Throats in the future will have to face jail in order to preserve their sources’ anonymity. <\/p>

In sum, although the Plame leak provides an ugly test case – one where the sources’ motives seem to be not mixed, but wholly bad, and the law-breaking is grave – it will be a test case nonetheless.<\/p>

Meanwhile, nearly 100 former Supreme Court law clerks have signed a public letter excoriating those of their colleagues who spoke anonymously to a Vanity Fair<\/i> reporter investigating the Court. Yet this reporting plainly did have the motive of serving the public interest: The reporter was looking into what happened inside the Court when, by a 5-4 vote, the Justices handed George Bush the presidency in Bush v. Gore<\/i>.<\/p>

Anonymous Sources: A Vital Tool That Can Be Misused, But Should Not Be Forbidden<\/b><\/p>

Like most things in life, anonymous sources aren’t perfect. Sometimes, they lead reporters astray, either on purpose or inadvertently (Felt, for instance, is claimed to have provided some information that turns out to be false). Sometimes, they reveal information that would be far better kept secret, such as the fact that Valerie Plame was a CIA agent. And sometimes — whether out of mixed motives or simply misjudgment about the public good — they do not get the balance right between what they feel is a pressing need to disclose important information, and the pressing duties of loyalty and confidentiality to the institutions within which they work.<\/p>

But all that said, in the run of things, anonymous sources still serve an enormously valuable purpose. The power of government to control information has only increased over time. Our government has tightened the rules against unauthorized disclosures; it engages in the routine practice of over-classifying documents to avoid public disclosure; and it finds all kinds of ways to punish individuals who depart from the government’s party line. And with greater ability to control information, may come an ever greater temptation on the part of government officials to misuse their power and cover up their malfeasance. <\/p>

Was Nixon a president unusually willing to subvert the law for his own purposes? Perhaps. Were Nixon’s underlings unusually willing to participate in illegal activities? Perhaps. But I doubt they were really all that different in kind from some of their respective successors. <\/p>

In a country as deeply divided as ours is, too many people, too much of the time, are going to revert to that age-old formula rationalizing the abuse of power: The ends justify the means. <\/p>

Anonymous sources are a small but important constraint on this tendency. Whatever their motives, through leaks to the press, they offer the public a window into potential corruption that on-the-record sources — out of fear of retaliation, or simply due to conformity — will too often leave closed. <\/p>

Often, perhaps, these secret glimpses into the workings of government do not amount to much. But sometimes, as with Deep Throat, they can help change the course of history. In such cases, the trade-off anonymous sources require is one well worth making – and valuing.<\/p>\n\n\n<\/span>\n\n\n

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\n\n\n<\/a>\nEdward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books — most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.\n

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