Politico, The

Supreme Court Leak Inquiry Exposes Gray Area of Press Protections

“The norms of confidentiality at the court, they’re not gentle or subtle,” said Allison Orr Larsen, a professor at William and Mary Law School who clerked for Justice David H. Souter. “They are strongly and repeatedly emphasized.”

As blunt and terrifying as those warnings may be, they are informal. So are the rules that apply to the justices themselves, who have been resistant to being bound by written procedures on most matters concerning their work.

“They don’t even have written ethics rules for the justices,” said Paul M. Smith, a law professor at Georgetown University who clerked for Justice Lewis F. Powell Jr. The leak, he said, and the focus on the lack of those standards after recent revelations about the political activities of Virginia Thomas, the wife of Justice Clarence Thomas, may put more pressure on the court to accept new restrictions on how it operates.

Other legal scholars, including some at the conservative Heritage Foundation, have pointed to a number of laws that could be used to prosecute the leaker and spur the kind of wide-ranging investigation that could entangle the press, court staff and even individual justices. One law that has been used against leakers, according to John Malcolm, a legal expert with the Heritage Foundation, broadly deals with theft, embezzlement and the conversion of “things of value” that belong to the government.

None are slam dunks. But First Amendment experts said they would not be surprised if one of these laws was tested in this case.

RonNell Andersen Jones, a professor at the University of Utah’s S.J. Quinney College of Law who clerked for Justice Sandra Day O’Connor, said that when she and a group of former clerks who text one another heard of the Politico article, their immediate reaction was that it had to be a hoax. A leak of this magnitude, they all understood, is strictly forbidden.

“What it means to be strictly forbidden is about to be tested,” Ms. Andersen Jones added.

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At Axel Springer, Politico’s New Owner, Allegations of Sex, Lies and a Secret Payment

He also said the Bild workplace culture would not be replicated in the United States. “We will not tolerate any behavior in our organizations worldwide that does not follow our very clear compliance policies. We aspire to be the best digital media company in the democratic world with the highest ethical standards and an inclusive, open culture,” he said.

Axel Springer forwarded a letter from lawyers stating that Bild was not legally obliged to fire Mr. Reichelt.

But a March 1 message from Mr. Döpfner to a friend with whom he later had a falling out over the way the company handled the allegations against Mr. Reichelt, Benjamin von Stuckrad-Barre, suggests that, while Mr. Döpfner was central to deciding how to act on the investigation’s findings as chief executive, he may not have been impartial. In the message, sent after Axel Springer had become aware of the allegations, but before the investigation was underway, Mr. Döpfner referred to an opinion column by Mr. Reichelt complaining about Covid restrictions.

Mr. Döpfner wrote that “we have to be especially careful” in the investigation, because Mr. Reichelt “is really the last and only journalist in Germany who is still courageously rebelling against the new GDR authoritarian state,” according to a copy of the message that I obtained. (The reference to GDR, or Communist East Germany, in this context, is a bit like “woke mob.”) Mr. Döpfner also wrote that Mr. Reichelt had “powerful enemies.”

Mr. Döpfner’s political statement in that message may seem at odds with his stated plans for his new American properties, which The Wall Street Journal reported last week, will “embody his vision of unbiased, nonpartisan reporting, versus activist journalism, which, he said, is enhancing societal polarization in the U.S. and elsewhere.”

As Axel Springer was struggling to contain the fallout from the Bild investigation, Mr. Döpfner’s focus was on Washington. This spring and summer, he conducted secret, parallel conversations with executives at two rival news organizations based in Washington, Politico and Axios, the site started in 2016 by Jim VandeHei, Mike Allen and Roy Schwartz, all formerly of Politico.

Mr. Döpfner’s goal was to buy both and combine them into a mighty competitor to the nation’s largest news outlets. The Politico acquisition, announced in August, was a triumph for his company. But behind the scenes, Axel Springer’s courting style had alienated its other target.

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Inside Politico’s Billion-Dollar Drama

Old resentments among Mr. VandeHei, Mr. Harris and Mr. Allbritton then boiled over. Mr. VandeHei, Mr. Allen and the company’s chief revenue officer, Roy Schwartz, quit Politico and started the newsletter outfit Axios, an immediate success that became a serious competitor. The move brought an end to what had seemed to outsiders like a close friendship between Mr. Allbritton and Mr. VandeHei, though Mr. Allbritton said he didn’t take it personally.

“A lot of other people had much bigger emotional reactions than I did,” he said brightly.

He also said that he did not consider Axios a competitor, given that its coverage was “broader” than Politico’s. He pointed to recent Axios articles on Apple News and the hurricane approaching New Orleans.

“We would never do a piece on meteorology,” Mr. Allbritton said.

But Mr. VandeHei’s exit did not sit well with his former longtime editorial partner, Mr. Harris, and the site’s new editor, Carrie Budoff Brown. “Politico implodes,” gloated The Post. And as Axios took on the sheen of hot new thing, the rivalry between the two publications turned bitter. (At this point, assigning blame for the breach is a little like trying to glibly arbitrate the Israel-Palestine conflict.)

Mr. Harris spent the next year persuading Politico’s reporters and editors not to abandon ship, while Ms. Budoff Brown restructured the newsroom and worked to improve a workplace culture some employees described as grinding and sometimes sexist.

In May, Mr. Allbritton said he caught wind that Mr. VandeHei was in talks to sell Axios to Axel Springer. Did he start negotiating with the Germans to spoil Mr. VandeHei’s deal? I supposed that might have been part of the attraction. And in Politico’s news release announcing the planned sale, a quote from Mr. Allbritton suggested as much: “Particularly in recent years,” he said, “we have put the emphasis on doing rather than boasting.” A spokesman denied that the line was aimed at his former colleagues, and Mr. Allbritton said he was simply, after years of flirtation with Axel Springer, ready to acknowledge that his family business didn’t have the “horsepower” necessary to keep growing.

“We’re better off with this publication going to a big global company,” he said.

On the day of the announcement, The New York Times reported that Axel Springer might still pursue a deal for Axios — perhaps Mr. VandeHei would be chief executive after the two publications merged? (I’d always assumed he would run for office in his native Wisconsin one of these days.) Politico’s executives in Washington pressed the German company to add a firm denial to the story, which they did.

Asked why he had chosen Politico over Axios, Mr. Döpfner told me in a telephone interview, “It’s an easy decision that you go for the No. 1.” Mr. VandeHei called the sale “great news” for companies that produce quality journalism in a text to me.

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