3:57pm PT by Matthew Belloni
Will Sean Penn Face Legal Trouble for Secretly Interviewing El Chapo?
Sean Penn's blockbuster profile of Joaquin Guzman Loera has done more than just illuminate the psyche of the infamous drug warlord known as El Chapo. The circumstances surrounding Penn's secret October interview with El Chapo in the jungle of Mexico and Rolling Stone's decision to publish it have raised a firestorm of both legal and ethical issues.
Politicians on Sunday expressed outrage at the interview, which U.S. Senator and presidential candidate Marco Rubio called "grotesque." White House chief of staff Denis McDonough said he was "appalled" by El Chapo's comments in the profile, in which he admitted to running perhaps the world's largest drug cartel. But McDonough stopped short of condemning the American actor's decision to conduct the interview and write the piece. "We'll let somebody else sort out what Sean Penn did and didn't do," McDonough said.
Sources tell THR Penn wasn't paid for the article, which was scheduled to be published by Rolling Stone on Jan. 11 but was rushed online Saturday night after El Chapo was captured Friday by Mexican authorities. Penn, who was hosting a Haiti fundraising event in Los Angeles on Saturday, was said to be aware that the New York Times was about to break the news of the story but CNN's Anderson Cooper, who was MC-ing the event, was blindsided by it, and Penn declined to answer any questions about the piece there. (Rolling Stone also declined to comment.)
Both U.S. and Mexican authorities are said to be interested in speaking with Penn, who is represented by Los Angeles-based litigator Mathew Rosengart, a former federal prosecutor who also is representing Penn in his high-profile defamation lawsuit against Empire creator Lee Daniels. (Rosengart declined to comment.) American federal law enforcement officials are attempting to extradite El Chapo to the U.S. to face likely charges of murder, money laundering and drug trafficking, and Penn could be an important witness at any trial. He could even face charges himself.
But on the legal issues, based on what information is public, it seems Penn likely is in the clear, and the timing of El Chapo's recapture could help him.
When the actor conducted the interview in October, El Chapo was indeed a wanted man, but Section 1071 of the criminal code, the U.S. law governing harboring a fugitive, makes it an offense only "to harbor or conceal any person ... so as to prevent the fugitive’s discovery and arrest … " One might make an argument that Penn, based on what he revealed in the profile, knew where El Chapo was located, what his plans were, with whom he was consorting and how he had managed to evade recapture, and that he should have helped U.S. or Mexican authorities in their search. But Section 1071 doesn't mandate any affirmative duty to do so, and there's a long history of American journalists (and yes, Penn is a journalist as well as an Oscar winner, having written previously for Rolling Stone, Hollywood Reporter and other publications) secretly interviewing fugitives and despots without recourse. "Harboring or concealing a fugitive is usually more than just setting up a clandestine meeting. You have to actually help the fugitive avoid capture in some way," criminal defense attorney Page Pate told Mediaite.
Penn would have had to do things like provide money or other resources to El Chapo, tip him off or otherwise help him evade arrest, or used his influence as a wealthy celebrity to assist him in avoiding capture. Evidence of such behavior might yet emerge but these are all things that Rosengart likely would have advised Penn not to do. In addition, early evidence suggests El Chapo's interest in having his story told by Hollywood was a path that led to his recapture, so Penn's involvement might actually have helped authorities.
Whether Penn will be required to testify against El Chapo is another issue. It's not clear whether the actor will be subpoenaed or if he will cooperate with the U.S. Attorney's office in Chicago, which is leading the American end of the case, or with Mexican investigators. There are vague descriptions in the Rolling Stone piece (such as El Chapo's business dealings and allies) that federal investigators likely would want to probe, in addition to his relationship to Kate Del Castillo, the soap star who is said to have been the bridge between El Chapo and Penn (Del Castillo's U.S. representatives at CAA, which also reps Penn, and the Felker Toczek law firm, declined to comment, with CAA referring media requests to her publicist, who declined comment).
However, this issue has been minimized by the timing of the story's publication. If Penn's interview had appeared before El Chapo was captured, there likely would have been greater outrage and interest from authorities in enlisting his assistance in finding the fugitive. With El Chapo in custody, authorities likely will want Penn's assistance only in building its case against him, such as confirming the confession that appears in the piece ("I supply more heroin, methamphetamine, cocaine and marijuana than anybody else in the world. I have a fleet of submarines, airplanes, trucks and boats") and certain details that might not have made it into the story. It would be surprising if Penn didn't at least cooperate with the investigation to some extent. If he refuses, he could argue that the First Amendment shields him from having to disclose information about the circumstances of an interview. But those types of First Amendment arguments haven't gone very far in federal cases.
Those are the legal issues. On the journalistic front, most of the outrage has been directed toward Rolling Stone for allowing El Chapo to approve the content of the piece before it published (though the magazine says he declined to change anything). CNN's media editor Brian Stelter called it an "exceedingly unusual choice by a news outlet," and others have decried the decision to give a favorable platform to notorious fugitive. There's little doubt that most of the outlets dumping on the decision to run the El Chapo piece would have been more than excited to get an El Chapo interview of their own, but whether they would have agreed to the onerous terms is something that likely will be debated in newsrooms and via the media in the next week. At least Rolling Stone was up front about the conditions in an editor's note before the story, so the hand-wringers won't be able to claim any conspiracy.