Joaquin El Chapo Guzman Capture Sean
AP Photo/Rebecca Blackwell

Long before he sought out kingpin Joaquin “El Chapo” Guzman, Sean Penn caught flak for his encounters with prominent figures overseas. When he trekked to Baghdad in 2002 to meet with senior Iraqi officials in the run-up to the U.S. invasion of Iraq, one Wall Street Journal wag wrote, he “evokes something more fatuous and vain even than Chamberlain’s return from Munich.”

This time around, Penn faces more than mere criticism for his sojourn. By visiting with a man who was wanted in both the United States and Mexico, the actor has stirred up significant ethical — and legal — questions.

Mexican authorities want to know the details about how Penn came to meet El Chapo, who was captured Jan. 8 in a deadly gun battle with security forces in the city of Los Mochis, in Sinaloa; five other suspects were killed. La Jornada, a daily newspaper in Mexico City, reported that the country’s attorney general had launched a preliminary inquiry as to whether Penn and the actress who led him to Guzman, Kate del Castillo, may have violated the law of encubrimiento — or concealment — which pertains to meeting with a known fugitive without notifying authorities.

Legal experts doubt such an investigation will lead anywhere, but according to Mexican media accounts, authorities may issue a citation to del Castillo that seeks an interview with her, and may ask the cooperation of U.S. officials in setting up a meeting with Penn.

Javier Muñoz

Such a dialogue could be weighed against reportorial privilege. Part of the Mexican constitution protects the expression of an idea “unless it offends good morals, infringes the rights of others, incites to crime or disturbs the public order.”

Gary Bostwick, a First Amendment lawyer in Los Angeles, doubted that the U.S. government would do anything that would put Penn under the control of Mexican authorities.

“I find it difficult to imagine that there are any laws he broke in going to talk to a source,” he said. “I thought it was a tour de force on his part and on the magazine’s part as a matter of investigative journalism. What if this happened in the United States? You are not aiding and abetting a criminal to do anything if all you do is go and talk to him. But you have to be very careful that you are not helping them in some fashion.”

Greg Aldisert, an attorney at the L.A. firm of Kinsella, Weitzman, Iser, Kump & Aldisert, said: “Maybe there is a moral issue about interviewing a guy like that, but as far as Sean Penn or Rolling Stone getting into trouble legally, I am not sure. The irony is it may have helped (Mexican authorities) get him. It’s almost funny in that sense.”

Ignacio Pinto-Leon, assistant director of the Center for U.S. and Mexican Law at the University of Houston, doubts Penn or del Castillo would face criminal liability.

“If you are asking if someone commits this crime just by meeting and interviewing, I do not think so,” he said. 

He pointed to an interview that Mexican drug lord El Maya Zambada gave to journalist Julio Scherer in 2010 for the news magazine Proceso. “Just as Mr. Scherer was not guilty of a crime, neither Kate and Sean are,” Pinto-Leon said.

Where Penn could run into legal wrangling is if Guzman is extradited to the United States. Mexican officials launched extradition proceedings Jan. 10, in what could be a lengthy process. If Guzman is brought to the U.S., Penn could be subpoenaed to be interviewed or testify as part of a U.S. investigation. The New York Post reported on Monday that prosecutors in New York are seeking a subpoena to search Penn’s cellphone, having uncovered his relationship with El Chapo in October.

“You are not aiding and abetting a criminal to do anything if all you do is go and talk to him. But you have to be very careful that you are not helping them in some fashion.”
Gary Bostwick, attorney

There’s a good reason why they would be interested. In the Rolling Stone interview, Guzman was quoted as saying: “I supply more heroin, methamphetamine, cocaine and marijuana than anybody else in the world. I have a fleet of submarines, airplanes, trucks and boats.”

In the article, Penn also wrote that Guzman cited Mexican corporations through which his money has been laundered, and “who take their own cynical slice of the narco pie.”

Should El Chapo face a trial in the United States, Penn could be called to the witness stand, setting up a conflict over reporter’s privilege. No journalistic-shield law exists at the federal level.

Given that Penn already has written a comprehensive story about his visit and his dealings with El Chapo, there may be a question as to just what confidential information could be gleaned from deposing him.

But being on assignment for Rolling Stone does not necessarily protect him from a subpoena.

Bradley Ellis, a partner at Sidley & Austin who specializes in First Amendment law, said that should federal authorities subpoena Penn, he would have little choice but to comply.

“Federal courts are pretty consistent that they don’t see any qualified First Amendment privilege,” Ellis said. “I don’t think a court would say he does not have to testify.”

Many journalists have interviewed known fugitives — including the likes of Osama bin Laden before and after 9/11 — with occasional legal fallout, but relatively little criticism of the journalistic precepts of not giving up a source.

Penn acknowledged the ethics involved in interviewing a known fugitive — he wrote that he takes “no pride in keeping secrets that may be perceived as protecting criminals” — but the aftermath of the story has instead focused on the agreement to submit the story to Guzman for his approval before publication. Rolling Stone was upfront about the condition, and Guzman is said to have asked for no changes.

“Allowing any source control over a story’s content is inexcusable,” Andrew Seaman wrote on the Society of Professional Journalists ethics committee blog. “The practice of pre-approval discredits the entire story — whether the subject requests changes or not. The writer, who in this case is an actor and activist, may write the story in a more favorable light, and omit unflattering facts, in an attempt to not to be rejected.”

Alfredo Corchado, longtime Mexico City bureau chief of the Dallas Morning News and a member of the faculty of the Walter Cronkite School of Journalism at Arizona State U., was at first impressed by Penn’s scoop, but has become dubious over its concessions.

“When you think just what a wasted opportunity this was, and you think of your colleagues who have been threatened, that’s where it didn’t fit well,” he said. “There was no pushback, no challenging of (El Chapo’s assertions). Then, when you realize that the whole story was submitted to El Chapo for approval, you wonder, ‘Was the public served by it, or did it contribute to his mythical ego?’ ”

It would come as little surprise if Guzman’s story winds up as a splashy film project, but the irony is that his interest in seeing it told his way — and reaching out to the outside world to do so — may have been what led to his capture. Did he get star struck?

“You wonder about Guzman. How could he be so sloppy?” Corchado said. “You would think that this billionaire drug trafficker would know better.”

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