By Eric Rose and Thom Weidlich

Way back in 2019 we highlighted how billionaire Jeff Bezos’s extramarital affair provided a prime opportunity to discuss the rules for requesting confidentiality when talking to a journalist. We now have another such opportunity in the infamous text exchange between interim U.S. attorney Lindsey Halligan and journalist Anna Bower.

The text back-and-forth earlier this month between Halligan (pictured, left), the interim U.S. attorney for the Eastern District of Virginia, and Bower (pictured, right), a reporter at Lawfare, perfectly illustrates how not to handle off-the-record communications.

According to media reports and Bower’s own Oct. 20 article on Lawfare (a nonprofit that mostly covers national security), Halligan texted Bower on Oct. 11 in response to her X posts commenting on the coverage of the indictment of New York Attorney General Letitia James. The two exchanged messages over two days in which Halligan criticized Bower’s comments and hinted at grand jury material, stating, “I can’t tell you grand jury stuff.”

‘Off Record’

Later, after the conversation had already occurred, Halligan attempted to retroactively declare, “Everything I ever sent to you is off record.” Bower’s response was immediate: “You don’t get to say that in retrospect.”

Indeed, Bower is right. You cannot go off the record after the fact. Confidentiality between a source and a journalist cannot be imposed unilaterally or retroactively. It must be agreed on in advance by both parties.

This exchange underscores the same principle we highlighted in the Bezos story: confidentiality is a negotiated agreement, not a postscript.

In 2019, the Washington Post reported that Michael Sanchez — brother of Bezos’ then-mistress, now-wife Lauren Sanchez — had emailed a Post reporter offering himself as the “single point-of-contact for anything Lauren-related” (Bezos’ extramarital affair with Lauren Sanchez was then a hot topic). Michael Sanchez’s email included the phrase “All my communications must be completely Confidential.” But, as the Post correctly noted, Sanchez had made that declaration “with no advance agreement of confidentiality.”

Ground Rules

As we explained then, and as the Halligan–Bower episode proves once again, that’s not how confidentiality works. A source can’t dictate the terms; both sides must agree on the ground rules before any exchange of sensitive information occurs. (We admit that there may be times when a journalist might oblige if he or she doesn’t want to burn, or lose access to, a source.)

The Halligan–Bower situation also revives an enduring problem in journalism: the lack of universal definitions for terms such as off the record, on background and on deep background. Even among journalists, interpretations vary. That’s why it’s crucial to spell out the meaning of those terms in every interaction and ensure both sides are clear and in agreement.

But the bottom line is that whether you’re a corporate spokesperson, a Hollywood publicist, a federal prosecutor or the brother of a billionaire’s mistress, the rule is the same: You can’t go off the record after the fact.

Photo Credits: Wikimedia Commons; Lawfare

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