Judge Clarence Thomas - 28 February 1992

About a month ago, a reporter was arrested and sent off to prison, his sin was that in writing about some flaw or injustice or fiddle in the government he'd used a confidential source. And when the authorities asked him to reveal the source he refused, so he was bustled off. At which point, in stepped – or considering his shape, barrelled – in the top authority, the president no less and said "rubbish he has every right to protect his source, release him at once".

The reporter was a Russian and the man who bawled out the arresting authorities was Boris Yeltsin, a heartening piece of news for us if ever there was one. Imagine in a country in which for 70 years to criticise the government openly without benefit of any other source than your own opinion was to guarantee yourself a passport to Outer Mongolia or to forced labour or to a so called psychiatric hospital to stay there for months, perhaps years, until it was plain to everybody that you had learned to think correctly about the Soviet Union and all its works.

By the way, it was from the Soviets that we first heard that prim word, which has cloaked so many layers of shame and hypocrisy. I remember being first puzzled by it during the dreadful political purge trials of the 1930s when about 50 of Stalin's old comrades had committed the error of not following Stalin nimbly enough in switching from the right wing to the left wing of the party and suddenly these men who had helped him to achieve the revolution were declared to be victims of incorrect thinking and were consequently executed.

In the founding scripture of the Soviet Union in its Constitution, Article 125, they actually adopted the American phraseology of the Bill of the Rights to guarantee – what you do you think – freedom of speech of the press and the right of assembly, but there was a provision not included in the American version, provided these freedoms are restricted to such exercises as might strengthen socialism. And now here, unbelievably, a man who grew from babyhood to late middle age with that exclusive view of the law in his country, he gets indignant when a reporter is questioned about his source or sources. "None of your business," snaps Mr Yeltsin and so say all of us, or rather all of us except the Senate of the United States. Just about the time the Russian reporter was being packed off to jail, a young reporter from a Long Island newspaper, a Mr Phelps, was subpoenaed by the Senate Rules Committee and questioned for hours by a special counsel.

And this week, a young woman, a reporter for the National Public – that's non commercial radio system – a Miss Totenberg was subpoenaed also and she too was questioned for four hours on the same matter. Both of them on a day early in October of last year had reported something, which the public until then knew nothing about, namely that one Anita Hill a professor of law at the University of Oklahoma had made a very serious accusation against Judge Clarence Thomas, a judge of the Appeals Court who was at that moment coming to the end of hearings before the Senate Judiciary Committee on his fitness to fulfil the president's appointment of him to the Supreme Court. She had accused him, these two reporters said or wrote, of being constantly asked to go out with him when she worked for him at the education department of a government commission that she as constantly refused, and that he recounted details of pornographic films he'd seen and in other ways sexually harassed her.

The special counsel appointed by the Senate Rules Committee now wants to know simply where the two reporters got their information, their source. They both politely refused to tell him and spent the rest of the hours responding to interminable questions as the 5th Amendment to the Constitution allows them to do, "I respectfully refuse to answer on the grounds of self incrimination". Not many listeners will need to be reminded about the bombshell that this accusation threw into the confirmation hearings of Judge Thomas. In fact, they were just about over, but the revelation or assertion of those two reporters caused the chairman of the committee to call for a second round to have the judge confront in another public hearing his accuser – and I don't need to say that for several days the thing was gone into to the vast and ugly titillation of millions of television viewers in more countries than this one.

Now two questions. First, if the two reporters were indeed the beneficiaries of a leak, who was the leak, the deep throat, and who wanted to have the leak traced to the point of inviting two reporters to refuse under oath to tell and so put themselves in contempt of Congress? Well the history of how Miss Hill came in the end to be called before the judiciary committee is long and torturous but, in spite of the furious conviction on the part of some Republicans, senators on the committee, that one or other of the Democrat members had enticed Miss Hill into going public, there is a straight line a sequence of events that is not in question and not hard to follow, though the identity of some of the participants is unknown or in dispute.

First then, during the summer of 1991, when the personal staffs of the senators on the committee were preparing for the hearings, a journalist who had written profiles and other pieces on Judge Thomas was approached by some Senate staffer, never mind who, nothing about Anita Hill has surfaced in his testimony.

In August, a lady who belonged to a citizens group known as the Alliance for Justice got a call from a man she knew who'd been a classmate of Miss Hill at Yale Law School, he told the lady that Miss Hill had been sexually harassed by Mr Thomas way back. The lady passed on this charge to the staff of one of the Democrats senators on the committee. Soon inevitably, the chairman of the committee, Senator Biden, another Democrat got wind of this and ordered another committee of staff to talk to Miss Hill and have her confirm or deny the charge. She thought things over and eventually made a sworn statement to a committee staffer.

We really could stop there because it was that statement that the Long Island reporter and the National Public radio woman reporter got a hold off, how and from whom is what the Senate's special counsel wants to know. But I ought to finish off the story because it has been wrongly claimed that what was leaked was Miss Hill's private testimony to the FBI. Senator Biden, the chairman of the committee, sent Miss Hill's sworn statement to President Bush in the legitimate belief that this matter was serious enough to be looked into by the FBI.

The FBI is the investigating arm of the Department of Justice, which of course is under the president's wing of the government, the executive. The president or his attorney general alone can order the FBI to make an investigation, which President Bush did. Miss Hill agreed then to be interviewed by the FBI and there she made again her charge of sexual harassment, pretty much in the form she was later to recite before the committee in the presence of Judge Thomas. Anyway, it was Miss Hill's sworn statement before a committee staffer that was leaked by somebody to the two subpoenaed reporters.

You'll see that there were many pipelines of rumour and tattling that could have provided a leak.

Second question, who insisted on this new investigation whose only aim, is to discover the identity of the leaker. The answer is two or three Republican senators, strong supporters of Judge Thomas on the judiciary committee who were livid that Miss Hill's charges ever came to public knowledge and who claimed then and now that Miss Hill was from the beginning a patsy, a set-up, a dupe of somebody probably a staff member of one of the Democrat senators who'd gone out early in the summer on a muck-raking expedition to find something damning to Judge Thomas's nomination and by assiduous raking probably they hinted among feminists, Liberals and other such mischief-makers had brought up in the sieve this nasty bit of rumour or slander or whatever. Because the two reporters, Mr Phelps and Miss Totenberg, were the first people to bring it out in public, they were brought before the special counsel of the Senate Rules Committee, which these Republicans had insisted should be called to investigate.

Now as I said, the Senate has the power to cite refusing testifiers for contempt of Congress and therefore Miss Totenberg and Mr Phelps could, once the citation is issued, be sent to jail. It's extremely unlikely that the Senate dare do that.

In the past 25 years, there have been other cases of journalists refusing to name the leaks who provided, for instance, secret documents from the Pentagon, from the Justice Department some even protected by government security, but the Courts have steadily maintained that the 1st Amendment Freedom of the Press protects the free flow of information and a reporters right not to disclose confidential sources. In this case, Miss Hill's sworn statement is not by any definition a secret government document and no crime of any sort is imputed. senator

If Mr Phelps and Miss Totenberg did get sent to jail, they'd be such a huge national outcry as to turn the gallant or defiant victims into a couple of martyrs. The vengeful Republicans who started the investigation surely know this and must now be stumped on how to act like stern headmasters and yet do nothing but slap two wrists, their plight is sad indeed, they didn't ought to have done it, dad! Because the embarrassing comparison with Mr Yeltsin, which John Chancellor was the first to spot would be instantly invoked to demonstrate how freedom of the press, one of the glories of the American system is so much more safely guaranteed in of all places holy Russia.

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