Anna Bower at Lawfare reports a text exchange with prosecutor Lindsay Halligan:
Through the whole of our correspondence, however, there is something Halligan never said: She never said a word suggesting that she was not “on the record.”
It is not uncommon for federal prosecutors to communicate with the press, both through formal channels and sometimes informally. My exchange with Halligan, however, was highly unusual in a number of respects. She initiated a conversation with me, a reporter she barely knew, to discuss an ongoing prosecution that she is personally handling. She mostly criticized my reporting—or, more precisely, my summary of someone else’s reporting. But several of her messages contained language that touched on grand jury matters, even as she insisted that she could not reveal such information, which is protected from disclosure by prosecutors under federal law.
As a legal journalist covering the Justice Department, I had never encountered anything quite like my exchange with Halligan. Neither had my editor. Over the last several days, he and I spoke with multiple former federal officials and journalists who cover the justice system. None could recall a similar instance in which a sitting U.S. attorney reached out to chastise a reporter about matters concerning grand jury testimony in an active case.
...
After I reached out to the department for comment on Halligan’s texts, Halligan texted me yet again, for the first time in several days, insisting that our entire correspondence had been off the record. Our full exchange, linked below, allows readers to make their own judgments on that question.
...
Halligan had said quite a lot during our correspondence, although much of it was hard for me to parse. But there was an important thing she had not said during the entirety of our communications: “Off the record” or “On background” or anything whatsoever about the terms on which we were talking.
As anyone who professionally engages with the media as routinely as Halligan would know, the default assumption when a reporter speaks with a public official is that everything is “on the record,” meaning that anything the source says can be printed with attribution. If the source wishes to speak confidentially, she can negotiate how the information will be used. “On background” means that the information the source provides to a journalist can be published, so long as the journalist doesn’t reveal the source’s name or identifying information. “Off the record” means the reporter can’t print what the source tells them at all. There are other variations too. But with any condition, a fundamental premise is that the reporter must agree to speak on that basis.
In the course of my work as a journalist, I frequently agree to speak with sources on background or off the record. I take my duty of confidentiality seriously and I have never burned a source by revealing confidential communications.
I certainly would have been willing to speak with Halligan on background or off the record. But she never raised the terms on which we were speaking at any point during the two days in which we exchanged texts.
