Abuse of Power
Jailing journalists.

By David B. Kopel & Paul H. Blackman. Kopel and Blackman are coauthors of No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It. They are speaking for themselves only, and not for any organization..
January 22, 2002 9:40 a.m.

riter Vanessa Leggett was released from a federal detention center in Houston on January 4. On that day, the United States rejoined the normal countries of the Western hemisphere — where Cuba is now the only nation with journalists in prison. But Leggett's half-year in federal custody — and the threat that she may be sent back — raises troubling questions about abusive law enforcement at the FBI and the Department of Justice. At a time when the DOJ has demanded and received unprecedented new powers, and has promised that it can be trusted to use those powers carefully, the persecution of Vanessa Leggett raises new concerns that Justice can nevertheless be the most dangerous part of the federal government.

As we detailed last August, Leggett is a writing instructor at the University of Houston-Downtown. She is writing a true-crime book about the murder of Doris Angleton.

In 1997, the deceased's husband, Robert Angleton, was charged with the murder. His brother, Roger Angleton, was believed to be the triggerman. Roger eventually committed suicide, leaving behind a note saying that he had killed Doris, and had been trying to frame Robert. Before the suicide, Vanessa Leggett had interviewed Roger Angleton in jail. Robert Angleton was acquitted after a trial in a state court.

The district attorney who lost the Robert Angleton case retired, and was replaced by his preferred successor. The new district attorney's wife is an FBI agent. After Angleton was acquitted, the FBI launched an investigation of Angleton, in which the prosecutor's wife participated.

A federal grand jury was empanelled to investigate Angleton. The grand jury (acting at the request of a federal prosecutor) demanded that Vanessa Leggett turn over all her notes and tapes — and all copies — to the grand jury. Leggett refused, and was taken into federal custody for defying the grand-jury subpoena. She was released, as required by law, on January 4, when the grand jury was dissolved.

When the Fifth Circuit Court of Appeals heard Leggett's case, the court said that journalists could be forced to testify before grand juries, unless there was evidence of governmental harassment or oppression. By now, the evidence of government abuse is plain.

In media coverage of the Leggett case, much of the attention has focused on whether Leggett really is a journalist. According to the FBI, the fact that she has written chapters in, and edited, two books published by the FBI doesn't make her a real journalist. But neither federal law nor Texas law has a "shield" statute for journalists. The Department of Justice does have an internal rule about trying to avoid subpoenas to journalists, but there is nothing to stop the DOJ from ignoring that rule whenever it wants to, as it did in the Leggett case. So let's put aside the issue of whether Leggett is a "journalist." Whether she is or isn't, the DOJ's actions are a gross assault on freedom of the press.

The DOJ has made it clear that it now considers Vanessa Leggett a major target. A compassionate conservative, for instance, put in charge of her case, might have let her go home on Christmas Eve to be with her family. She had already been in federal custody for 157 days, and if she hadn't folded after 157 days, she wasn't going to knuckle under during the last 11 days of the grand jury's term.

Though Leggett was finally released on January 4, the DOJ is now threatening to bring charges of criminal contempt. She could then be sent to prison for years, rather than being free to leave when the grand jury ceases operations. She would also suffer all the consequences of a felony conviction — including losing the right to vote, the right to bear arms, and the right to hold many jobs that require a state or federal license.

Since Vanessa Leggett has already suffered punishment for civil contempt — 168 days in the federal detention facility, to be exact — bringing separate criminal contempt charges would seem vindictive and petty. The double punishment would also seem to violate the spirit of the Fifth Amendment's prohibition on double jeopardy; but Supreme Court decisions have created so many loopholes that the double-jeopardy clause hardly constitutes a limit to a prosecutor with a little imagination.

The second threat being held over Vanessa Leggett's head is that of having another grand jury subpoena her material, and jailing her into 2003 should she remain defiant.

Important First Amendment issues are involved in the continuing federal campaign against Leggett. For one thing, prosecutors are demanding to know about her interviews of law-enforcement officers involved in the investigation, because of official concerns about "leaks." In other words, an important reason the feds are after Leggett isn't because they're trying to solve a crime, but because they're trying to punish police officers who talked to an investigative writer.

There is good reason to suspect that Leggett is being targeted not for what she won't tell the grand jury, but for fear of what she will tell the general public, if allowed to finish her book. There is no question that the book will be highly critical of the government's entire investigation and prosecution of the Doris Angleton case.

When officials first contacted Leggett, they demanded that Leggett contractually agree to let the federal government decide when, if ever, she could publish her book. This restriction was part of the DOJ's plan for Leggett to become an undercover DOJ informant.

When Leggett refused to serve as a government spy rather than as an independent author, the DOJ subpoenaed not only all the information she had, but all copies of it as well. In other words, Leggett would have been unable to write the book.

Now, arguably, the prosecutors trying to build a case against Robert Angleton might have a reasonable desire to see Leggett's research. But there could be no legitimate law-enforcement interest in stopping Vanessa Leggett from writing her book. The feds' demand for all copies of her information was plainly abusive.

So long as Leggett was kept in federal custody, her jailers prohibited her from writing anything, except to assist her lawyers with her legal case. She was punished for writing a "My Turn" column for Newsweek while in custody. So while cop-killer Abu Jamal is allowed a wide-ranging writing career from his Pennsylvania state prison, Vanessa Leggett is punished even for writing a single magazine article informing the public that she is a prisoner.

And if Vanessa Leggett — who is an American citizen — can be forbidden to communicate, can we really be sure that no other people in federal detention are being held incommunicado?

By trying to stop Leggett from writing, the DOJ is deliberately preventing an exposé of local and federal law-enforcement incompetence and impropriety. This suppression is far more important than the technical issue of whether reporters have special privileges or whether Leggett qualifies for such privileges. At issue is the heart of the First Amendment's freedom of the press: the right of people to publish criticism of the government. Already, the threat of police-at-the-door is having a chilling effect on Leggett's willingness to retrieve her tapes and notes and proceed with her exposé.

Attorney General Ashcroft has a responsibility to demonstrate, by his actions, that the Department of Justice will not use its tremendous powers in ways that threaten American liberty. The persecution of Vanessa Leggett is a direct assault on the First Amendment, and a flagrant abuse of power. The Leggett case began when Janet Reno was attorney general, but the outrageous jailing of Leggett occurred entirely under Ashcroft. The longer the attorney general fails to halt Leggett's persecution, the greater — and more understandable — our qualms about the easily abused and tremendous powers of the Department of Justice.