A Reporter Demands His Subject’s Prosecution

April 25, 2012 Current Commentary Comments Off
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When I was a young reporter for The Associated Press, I never signed political petitions, or donated to candidates, or joined civic or labor organizations other than the Wire Service Guild (the AFL-CIO affiliate that represented AP employees).

I could not vote in primary elections because, as someone who covered politics for a living, I would not join a political party. I did not buy individual company stocks because I also covered business and legal news, and I might have found myself called upon to cover an enterprise in which I owned shares. Mutual funds were OK, since I neither controlled which shares they traded nor knew their holdings at any particular time.

I certainly never authored editorials or op-ed pieces on the news subjects I covered. I do not recall writing any opinion pieces at all while at The AP.

Legally, I could have done any of these things. There are no government-imposed rules of conduct for American reporters. My personal restrictions also went beyond The AP’s requirements, which were probably somewhat hazy, but which certainly would have allowed me to register as a Democrat or Republican and vote in my party’s primaries. But I did not think a reporter ought to do anything that might call his or her independence and impartiality into question. While my personal approach might have been a bit more rigid than most, it was still a mainstream view among journalists at the time.

This attitude carried over to my second career as a financial adviser. My colleagues and I do not accept compensation from anyone other than our clients, because we want the people we serve to have complete faith in our objectivity and loyalty to their interests.

The world, however, has changed, as anyone who has watched cable television news is well aware. Yet I was still surprised last week when a reporter for ProPublica wrote an op-ed column advocating the criminal prosecution of BP executives in connection with the 2010 Gulf oil spill.

Abrahm Lustgarten, whose op-ed appeared in The New York Times as well as on propublica.org, is ProPublica’s environmental reporter and was formerly a staff writer at Fortune magazine. He has written a book about the Gulf spill, “Run to Failure: BP and the Making of the Deepwater Horizon Disaster.” His profile page on ProPublica’s site also announces the availability of his current e-book, “Hydrofracked? One Man’s Mystery Leads to a Backlash Against Natural Gas Drilling.” I have not read either book, but I would certainly grant that Lustgarten appears to have strong views and considerable energy – both of which are fine attributes for a reporter.

There is nothing wrong with a journalist holding opinions about the subject he covers. If he cares about his work, it’s inevitable. An important line is crossed, however, when the reporter steps away from the role of gathering facts and telling the story and veers into telling the audience how to react to that story.

Bob Woodward and Carl Bernstein did not tell Washington Post readers how to react to news about the Watergate break-in and cover-up. The Nixon White House would surely have been delighted if they had called for the president’s impeachment; it would have played into their argument that their opponents trumped up Watergate after failing to prevent Nixon’s re-election. Woodward and Bernstein, however, kept their reactions to themselves, even when they later wrote about Watergate in their book, “All the President’s Men.”

Mainstream reporters who covered the civil rights demonstrations, anti-war protests and race riots of the 1960s did not call for legislation or other policy measures. Their accounts of mayhem amid fire hoses and police dogs spoke for themselves. There are plenty of editorialists and opinion writers to offer just about every perspective on the news. There is no need for a field reporter to join the fray.

Last Sunday, The New York Times’ David Barstow and several colleagues broke the story that Wal-Mart hushed up an investigation into widespread bribery by the company’s Mexican unit. This would not only be a crime in Mexico, but it would also subject the company and any U.S. executives who authorized or covered up the bribes to prosecution under our Foreign Corrupt Practices Act. I highly doubt Barstow will demand the prosecution of Wal-Mart and its executives; it would be pointless. His story drew immediate worldwide attention. Prosecutors and investigators are, no doubt, already hard at work. Wal-Mart’s stock price dropped by about 5 percent on Monday after the news broke.

Unlike Barstow, who told his readers exactly what crime may have occurred and who might have committed it, Lustgarten’s op-ed argued that because BP is a “huge and profitable corporation,” its $30 billion in estimated total cost for the Deepwater Horizon disaster, which killed 11 workers, is insufficient. “What is missing,” Lustgarten wrote, “is the accountability that comes from real consequences: a criminal prosecution that holds responsible the individuals who gambled with the lives of BP’s contractors and the ecosystem of the Gulf of Mexico. Only such an outcome can rebuild trust in an oil industry that asks for the public’s faith so that it can drill more along the nation’s coastlines. And perhaps only such an outcome can keep BP in line and can keep an accident like the Deepwater Horizon disaster from happening again.”

Lustgarten does not identify the “individuals who gambled with the lives of BP’s contractors,” nor does he say exactly how they gambled, nor does he give even a hint of what criminal offense they may have committed. Since accidents can happen at any drilling site, and particularly in a challenging environment such as the deep-water Gulf, I suppose his argument could be that any resulting disaster is the result of the gamble of deciding to drill in the first place. By that logic, all drilling accidents become crimes.

Lustgarten seems to be calling for criminal prosecution because he thinks the public demands it as the price for future offshore drilling. Someone at BP – a real, live person – should therefore face financially ruinous defense costs, and the threat of prison, as a sort of human sacrifice on behalf of the industry in which he or she works.

Yet Lustgarten conceded that none of BP’s senior executives were “malicious.” That being the case, is there some charge on which they could be convicted? Or is Lustgarten arguing that prosecution, even with little hope of conviction, is penalty enough and would frighten other executives into being more careful in the future? Prosecution without a reasonable likelihood of conviction would be a gross abuse of prosecutorial power.

Coincidentally, federal prosecutors announced yesterday that they had filed criminal charges against former BP engineer Kurt Mix. Though these are the first criminal charges related to the Gulf oil spill, Attorney General Eric Holder suggested they might not be the last, saying, “The Deepwater Horizon Task Force is continuing its investigation into the explosion and will hold accountable those who violated the law in connection with the largest environmental disaster in U.S. history.”

Still, the relative strength of Lustgarten’s argument is not the main issue. Woodward and Bernstein would have had a stronger case against President Richard Nixon, but they did not make it. They just gathered the news and they let the editorial writers and other pundits take it from there.

I wrote to ProPublica’s senior editors last week, asking their views. Editor-in-Chief Paul Steiger (a highly respected journalist who was The Wall Street Journal’s managing editor before taking the top spot at ProPublica) responded on Monday. Our email exchange appears below this column on my firm’s website, and is accessible via this link if you are reading my commentary on another site.

“Mr. Lustgarten seems to have placed himself in the multiple roles of grand jury, prosecutor, judge, jury and journalist,” I wrote to the editors. “Isn’t the last in conflict with the others? If not, why not?”

Steiger vigorously defended his reporter. “Mr. Elkin, no one is better suited to cover BP – now and in the future – than Abrahm,” he wrote. “He covered the company for a sustained period while at Fortune magazine. He reported deeply, for ProPublica and for his book, on the Gulf explosion and spill. His conclusion that the record of BP’s leaders in the years leading up to the spill evinced a callous disregard of the risks to human life and the environment was not a matter of opinion; it was totally supported by multiple facts.”

“His role is as a journalist, pure and simple,” Steiger added. “At ProPublica, we define our journalistic mission as seeking to shine a spotlight on the abuse of power and failure to uphold the public interest. Abrahm’s work is an admirable example of that role.”

Steiger is as much a part of American journalism’s establishment as anyone. If his position – that a reporter can call for a subject’s prosecution one day, and be called upon to impartially present the subject’s side of the story the next – is generally accepted, then the world has changed even more than I thought.

An Email Exchange With Paul Steiger, Editor-In-Chief Of ProPublica

This email was sent to Mike Webb, ProPublica’s director of communications, with copies to Editor-In-Chief Paul Steiger and Managing Editor Stephen Engelberg. Steiger responded below.

Dear Mr. Webb,

I am a former journalist, now president of a financial advisory firm, and I write a daily commentary that covers a range of topics occasionally including issues in news reporting. You will find a relevant example here, and all my columns are at my firm’s website. Most are picked up by other financial news sites, as well.

Abrahm Lustgarten’s op-ed calling for criminal prosecution of someone at BP for the 2010 Gulf oil spill caught my attention. I am examining his argument and the wisdom of a news organization permitting (in fact, since it appeared on propublica’s site as well, distributing) a beat reporter’s demand for the criminal prosecution of an organization and its employees whom he covers.

My questions, which I would like to direct to the editor or managing editor (whom I have attempted to copy here), are: Is this appropriate? Is the reporter’s fairness, and the audience’s faith in his fairness, compromised by his publication of this piece? Can and should he continue to cover BP, the oil spill, and the regulatory aftermath?

Mr. Lustgarten does not name any individual who committed a crime, nor does he identify a crime that may have been committed. He does not assert that the authorities who examined the accident failed to look diligently for evidence of a crime. In fact, he says BP’s top managers were not “malicious.” His arguments seem to boil down to:

  1. Something very bad happened;
  2. This was not the first very bad event for which BP was responsible;
  3. BP is a profit-seeking and profit-making organization;
  4. The penalties and costs BP will bear in connection with the Gulf accident, while large, are not enough to seriously hurt the organization;
  5. Because many people in such a large organization participate in decisions, it is difficult to hold any individual responsible.

Mr. Lustgarten calls this “plausible deniability.” A judge or prosecutor would likely describe this as an inability to prove, at the criminal standard of beyond a reasonable doubt, either criminal act by an individual or criminal intent.

Nevertheless, Mr. Lustgarten argues that somebody ought to go to jail.

Mr. Lustgarten seems to have placed himself in the multiple roles of grand jury, prosecutor, judge, jury and journalist. Isn’t the last in conflict with the others? If not, why not?

Thank you and best regards,
Larry Elkin
President, Palisades Hudson Financial Group LLC


Dear Mr. Elkin:

I’m responding to your note to Mike Webb, because I’m ultimately the one responsible for what ProPublica publishes.

You don’t seem to dispute Abrahm Lustgarten’s reporting of what went on at BP. To quote from your summary of his “argument”:

  1. Something very bad happened;
  2. This was not the first very bad event for which BP was responsible;
  3. BP is a profit-seeking and profit-making organization;
  4. The penalties and costs BP will bear in connection with the Gulf accident, while large, are not enough to seriously hurt the organization;
  5. Because many people in such a large organization participate in decisions, it is difficult to hold any individual responsible.

Where you differ is on conclusions. Abrahm’s is that a prosecution would be difficult if not impossible because of “plausible deniability.” Yours seems to be that it’s all fine that no one at BP is likely to face criminal prosecution, because, quoting you again, of “inability to prove, at the criminal standard of beyond a reasonable doubt, either criminal act by an individual or criminal intent.”

Mr. Elkin, no one is better suited to cover BP – now and in the future – than Abrahm. He covered the company for a sustained period while at Fortune magazine. He reported deeply, for ProPublica and for his book, on the Gulf explosion and spill. His conclusion that the record of BP’s leaders over the years leading up to the spill evinced a callous disregard of the risks to human life and the environment was not a matter of opinion; it was totally supported by multiple facts. If new leadership at BP succeeds in changing the company’s culture, I’m confident Abrahm will write that, assuming he is still on the beat – a beat I see no reason to take him off. His finding that the lesser penalties and threat of penalties were insufficient to deter BP’s previous leadership from its flagrant misconduct is in clear accord with an enormous factual record.

One final point. You chide Abrahm for supposedly placing himself in the role of grand jury, prosecutor, judge and jury as well as journalist. He has done no such thing. His role is as a journalist, pure and simple. At ProPublica, we define our journalistic mission as seeking to shine a spotlight on abuse of power and failure to uphold the public interest. Abrahm’s work is an admirable example of that role.

Sincerely,
Paul Steiger


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