Don't Blame ACORN Whistleblower Anita MonCrief for Providing Proof!
Mr. Oder's criticism of Ms. MonCrief for "decid[ing] to make public what Strom considered confidential reporter-source communication" is based on a fundamental misunderstanding of privileged communications.
Whistleblowing should be encouraged, not discouraged.
We need the whole truth, not lies and spin.
It's hard enough to blow the whistle on wrongdoing.
Whistleblowers should not be chided for proving their charges with actual evidence.
On Good Friday, Norman Oder wrote an open letter to the Public Editor of The New York Times, asking why The New York Times has ignored developer Forest City Ratner's "incredible" bailout of ACORN (the Association of Community Organizations for Reform Now).
"...you’ll find evidence that a Times reporter knew of (and was alarmed by) a $1.5 million loan/grant that Brooklyn-based FCR gave last August to ACORN..., which had suffered severe cash flow difficulties in the wake of an embezzlement scandal.
“'This is incredible,' reporter Stephanie Strom wrote after learning that the deal was allegedly approved without ACORN board’s assent, adding that an explanation given to her 'doesn’t hold water.'"
That's New York Times national correspondent Stephanie Strom, the same reporter who told her confidential source since July 2008, ACORN whistleblower Anita MonCrief, on October 21, 2008, that her editors had told her to "stand down" on an ACORN/Obama campaign expose, because they feared it might be "a game changer" and claimed that Times policy was not to run "a game changer" "either way" that close to election day.
I reported that (without the quotations marks) the next day, but the major media did not take notice.
Finally, on March 31, 2009, Fox News's Bill O'Reilly reported the same thing.
And the next day (unfortunately, April Fool's Day), Mr. O'Reilly announced that The Times (1) would not let him talk to Ms. Strom and (2) claimed that "political considerations" had not affected its journalistic decisions.
But Mr. O'Reilly had played a voice mail, with Ms. Strom sadly saying she had been forced to "stand down," thereby refuting the Times denial in advance.
Hurray for Mr. Oder for raising what he described as "the complicated, vexing question of the impact on Times coverage from the parent New York Times Company’s relationship with developer Forest City Ratner (FCR), which together built the Times Tower in Midtown--a relationship that has drawn critical scrutiny from Editor & Publisher's ethics columnist."
But Mr. Oder's criticism of Ms. MonCrief for "decid[ing] to make public what Strom considered confidential reporter-source communication" is based on a fundamental misunderstanding of privileged communications.
The attorney-client privilege belongs to the client, not the lawyer. A lawyer cannot conceal his or her malpractice by claiming privileged communication with the client.
Likewise with the physician-patient privilege.
And the priest-penitent privilege protects the penitent, not the priest. The penitent is free to disclose what he or she and the priest discussed.
When "higher ups" at The New York Times killed the story she had been working on with Ms. Strom, Ms. MonCrief had a choice: capitulate to those "higher ups" determined to cover up or tell the truth and expose those "higher ups."
Ms. MonCrief made the choice that was both courageous and correct.
Ms. Strom now seems to need protection from the truth and those "higher ups."
She has not issued a public statement disputing Ms. MonCrief. She is avoiding Bill O'Reilly (and me), but she did twitter: "Was O'Reilly-ed together w/ the NYT last p.m. So far, less painful than being Limbaughed, which happened a year or so ago."
Hopefully, Ms. Strom will remember the Watergate lesson--the cover up is what will get you--and tell the whole truth, like Ms. MonCrief. (It will beat lying and then being proven to be a liar!)
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
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