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White House Account of Alleged Leaks

Friday, August 7, 1998

Following are excerpts from a motion filed July 10 by a team of lawyers representing President Clinton, the White House, White House counsel Bruce Lindsey and White House adviser Sidney Blumenthal. The excerpts provide a White House account of the alleged leaks by independent counsel Kenneth Starr and the White House's legal maneuvers against him. The acronym OIC stands for Office of the Independent Counsel. For more information, see the Post story. For Starr's position, see his June 16 letter to Steven Brill.

Since the start of this phase of the OIC's investigation, appellees have filed three motions with the district court requesting that the district court order the OIC to show cause why it, or individuals therein, should not be held in contempt for violations of Federal Rule of Criminal Procedure 6(e)(2). The first motion for order to show cause, Misc. No. 98-55, was filed on behalf of President Clinton by his personal counsel on February 9, 1998, slightly less than three weeks after the OIC's Monica Lewinsky investigation first became public in a wave of press reports on January 21, 1998. The motion listed 15 media reports that were alleged to violate Rule 6(e) and gathered and submitted 60 additional such reports as a supplement. Many of the cited news reports directly attributed their information to OIC sources. The district court granted Ms. Lewinsky's motion to intervene in this action on March 3, 1998.

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A second motion for order to show cause, Misc. No. 98-177, was filed by President Clinton, the White House, Bruce Lindsey, and Sidney Blumenthal on May 6, 1998 in response to a continued barrage of press reports containing grand jury information prejudicial to movants that again appeared to be coming from the OIC. The motion was prompted by reports from May 5 of leaks about recent sealed decisions by the district court on OIC motions to compel over privilege objections. Motion for Order to Show Cause of May 6, 1998 at 3. Movants also brought to the attention of the court a public statement by Independent Counsel Starr made the morning following these reports, in which he called the court's sealed decision "magnificent." Supplemental Memorandum in Support of Motion for Order to Show Cause of May 12, 1998 at 4.

On June 16, 1998, the same four parties filed a third motion for order to show cause, Misc. No. 98-228, largely in response to the publication of an article by Steven Brill, "Pressgate," which reported in extensive detail about press reports at the start of the current investigation and recounted an interview with the Independent Counsel at which he acknowledged that he and members of his office spoke frequently with the press on condition of anonymity.

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On June 19, 1998, the district court consolidated the three pending motions and issued an order to show cause. The court found that "movants have established prima facie violations of Rule 6(e)(2)," Order of June 19, 1998 at 6, and identified reports in each of the three motions as the basis for the ruling. The court also found that "the serious and repetitive nature of disclosures to the media of Rule 6(e) material strongly militates in favor of conducting a show cause hearing." Id. at 5. The court found that the OIC "defines material protected by Rule 6(e) too narrowly," explaining that the Rule applies both to information given to OIC investigators by witnesses who had been subpoenaed to appear before the grand jury but had not yet testified and to investigative reports that are closely related to the grand jury investigation. Id. at 3, 5.

As for the affidavits previously submitted to the court by the OIC in camera, in an effort to rebut any prima facie showing, the court found that omissions in the affidavits and the OIC's unduly narrow view of its Rule 6(e) obligations undermined the usefulness of those affidavits. The affidavits, the court noted, "do not deny that OIC employees were the source of articles in which the OIC was explicitly identified as such," Id. at 5, and "disavow disclosing only material that the OIC deems to be ‘subject to Rule 6(e),' not what th[e] Court holds to be protected by Rule 6(e)." Ibid. It found, accordingly, that the affidavits "fail to rebut" the prima facie violations the court had found. The district court provided movants with a representative sample of the affidavits plus two that differed but, at the OIC's request, redacted both the affiants' names and job titles from the affidavits. Ibid.

In that June 19 order, the court found that movants had established numerous prima facie violations of law. The court cited many examples of violations both of Rule 6(e) and its own sealing orders, including a February 4 NBC Nightly News story "that directly identifies 'sources in Starr's office' and discloses information regarding a subpoenaed witness's potential testimony before the grand jury evaluations of potential testimony, and the strategy and direction of the OIC's investigation;" a May 8 CBS News report that "investigators have spent months checking out Tripp's story and now claim she is, quote 'completely reliable;' " and Independent Counsel Starr's May 6th statement to the press calling the district court's sealed executive privilege decision "a magnificent ruling." Id. at 6-8. The court also specifically identified Mr. Brill's "Pressgate" story, noting Mr. Brill's statement that he has " 'personally seen internal memos from inside three news organizations that cite Starr's office as a source' and that 'six different people who work at mainstream news organizations have told [him] about specific leaks.’ " Id. at 8-9.

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In preparation for the show cause hearing, on June 19, movants filed a motion with the district court requesting permission to subpoena the OIC's documents related to press contacts and policies and to take depositions of IC Starr and six members of his staff as to whom there was substantial evidence of involvement in matters related to the show cause hearing. On June 24, the OIC filed a consolidated response to movants' discovery request and to the court's order to show cause, contending that the OIC should not be required to provide any information to movants and that the show cause hearing should be conducted ex parte. On the same date movants filed the list of media reports on which they would focus at the hearing. (A copy of the list with attachments is included in the Appendix at Tab A.)

The court responded to these pleadings by issuing a memorandum order on June 26, 1998, denying the OIC's request to exclude movants completely from the show cause proceedings. Noting that under D.C. Circuit law motions for contempt for violation of Rule 6(e) may be pursued as a civil cause of action, the court determined that movants were entitled to carefully limited discovery and limited participation at the hearing. Id. at 2. The court authorized movants to subpoena documents from the OIC "related to media contacts" and to subpoena "certain witnesses for deposition ... subject to the restrictions described in this Memorandum Order." Id. at 5.

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Editor's Note: The lawyers argue that delaying an inquiry into the leaks will cause their clients "additional harm"

The district court found the "harm to movants of granting a stay is manifest" because, if movants' allegations "are true," "this hearing could serve to stop the flow of leaks damaging the targets and this grand jury investigation." July 9 Order at 9.

The OIC nonetheless claims appellees will not suffer any harm from an indefinite stay because "the purported 'leaks' complained of all occurred in the past." OIC Motion at 17. As an initial matter, even if the harm caused by ongoing leaks had ceased, appellees would continue to be aggrieved until the leaks were remedied. But the fact is that the leaking has continued from the start of this investigation to the present, and an indefinite stay will only encourage more of the same.

Appellees first raised the issue of leaks in a motion filed February 9, 1998, within three weeks of the start of this investigation, and have been compelled to seek additional relief on three separate additional occasions, in motions filed on May 6 and June 16 and in a supplemental memorandum filed on June 24. The district court has found prima facie violations from each of the first three motions, spanning almost the entire period of the investigation.

And the leaking continues. The OIC claims that as to any future harm from ongoing leaks "it suffices to say that the district court has already issued orders governing confidentiality." Motion at 18. Unfortunately, Rule 6(e) and the district court's confidentiality orders have never sufficed to prevent the OIC from leaking -- indeed all of the prima facie violations that the district court has already found took place while both Rule 6(e) and the court's orders were in full effect. The OIC's claimed intention to obey these rules from this point forward rings utterly hollow in light of its many past assurances about its grand jury and court secrecy obligations. See e.g., OIC Press Release, June 15, 1998 ("The OIC does not release grand jury material directly or indirectly on-the-record or off-the-record; the OIC does not violate Department of Justice policy or applicable ethical guidelines; and the OIC does not release (and never has released) information provided by witnesses during witness interviews, except as authorized by law.") (Tab C). Notwithstanding the OIC's professed understanding of and adherence to all of the secrecy requirements that bind it, the district court found both that "the OIC defines material protected by Rule 6(e) too narrowly" and that there have been "serious and repetitive disclosures to the media of Rule 6(e) material." Order to Show Cause at 5 (June 19, 1998).

The OIC also suggests that it can obey the law now because the district court's June 19 and June 26 Orders have "put the parties on notice of the district court's interpretation of Rule 6(e)." OIC Motion at 18. The district court's interpretation of Rule 6(e), however, is neither new nor novel, and the OIC has been "on notice" of the law from day one. Moreover, despite its apparent new-found understanding of the law, the OIC has continued to this day to insist that it never leaked grand jury information. See NBC News, Meet the Press. July 5. 1998 ("Mr. Bakaly: ... We know exactly the limits of what we can say and what we cannot say, and we abide by those rules. Mr. Russert: Did anyone in Ken Starr's office -- Ken Starr, Jackie Bennett, any of his assistants -- provide reporters grand jury testimony or testimony that was about to be presented to the grand jury? Mr. Bakaly: No. Mr. Russert: Did Ken Starr or any of his deputies provide to reporters information that they knew would be before the grand jury? Mr. Bakaly: No. Mr. Russert: Mr. Brill suggests otherwise. Mr. Bakaly: Well, Mr. Brill is wrong.") (Tab D). Particularly in light of the court's findings, why can't the OIC just remain silent on these issues?

Most troubling is that while insisting that it has not and does not leak and that it now understands what constitutes a leak, the OIC also continues to leak, remarkably even since the district court issued its show cause orders. For example, on June 30, 1998, NBC's Lisa Myers reported on OIC prosecutors' assessment of the credibility of one of their grand jury witnesses stating that "sources familiar with the investigation say that much of what Linda Tripp says checks out. They call her a truth-teller...." (Tab E). This report, made on the first day of Linda Tripp's grand jury testimony, mirrors the May 8, 1998 CBS News report, also sourced to "investigators," regarding Ms. Tripp's credibility -- a report the district court has already found to constitute a prima facie violation of Rule 6(e). Order to Show Cause at 7 (June 19, 1998). And The New York Times reported on July 5:

One month after Monica S. Lewinsky replaced her legal team, negotiations on a deal with the independent counsel to avoid possible prosecution of the former White House intern have stalled, lawyers on both sides of the talks report. The lawyers, who spoke on the condition of anonymity, said that Kenneth W. Starr, the independent counsel, and Ms. Lewinsky had not reached agreement on any of the central issues. New York Times, July 5, 1998 (emphasis added) (Tab F). The attribution of this information, which discusses the identity of a subpoenaed grand jury witness and potential indictment, to sources including OIC attorneys could not be clearer.

Rule 6(e) continues to be flouted, not only in the now customary surreptitious manner demonstrated by these recent stories, but also in the appearances of OIC spokesperson Charles Bakaly on national television. On two talk shows this past Sunday. Mr. Bakaly engaged in his own transparent Rule 6(e) disclosures, acknowledging the secrecy obligations of Rule 6(e) and in the same breath improperly confirming information about grand jury witnesses by reference to real or imagined news reports. By these repeated coded confirmations, Mr. Bakaly did indirectly what obviously could not be done directly. As the OIC has noted, "Rule 6(e) protection is not 'waived once public disclosure occurs.’ " OIC Motion for Stay (filed July 7, 1995 D.D.C.) at 9 (citing In re Motions of Dow Jones & Co., 142 F.3d 496 ---, 1998 WL 216042, at *8 (D.C. Cir. May 5, 1998); Barry v. United States, 740 F. Supp. 888, 891 (D.D.C. 1990)). Indeed, Mr. Bakaly himself stated just days before: "I can't comment at all about any particular grand jury witness. I can't even confirm that a particular person is or is not coming." CNN Special Event, June 29, 1998 (Tab G). And yet that is precisely what he is doing.

For example:

Mr. Russert: Linda Tripp appeared before the grand Jury twice this week. How important is she as a witness and her-how important is her testimony?
Mr. Bakaly: Well, Tim, I can't comment on the relative importance of a particular witness to the grand jury's investigation. However, there's been much reported about knowledge that Ms. Tripp may have that was provided to her, and the grand jury is seeking to gather and to evaluate as much evidence as they can, and she is one of the people that they are seeking to get her information from.
Mr. Russert: Will she be returning to the grand jury?
Mr. Bakaly: I believe her lawyers have said that she will return to the grand jury. I can't comment, again, on the scheduling or whether a witness will return. but her lawyers, I believe, have said that.
Mr. Russert: Will you subpoena President Clinton before the grand jury?
Mr. Bakaly: I can't say. I'm not allowed, as you know. Prosecutors are under very strict obligation, under rule 6(e), which people talk about quite a bit, not to discuss grand jury matters, and that also encompasses whether you're going to subpoena somebody or not. But it has been reported. You're absolutely correct that those invitations for the president to testify have been made. That's been reported. I can't get into the details of the correspondence.

NBC News, Meet the Press, July 5, 1998 (emphasis added) (Tab D). Mr. Bakaly repeated this performance in a subsequent appearance, simultaneously insisting that he cannot comment on the state of immunity negotiations and explaining the OIC's position in those same negotiations.

Blitzer: It seems one of the key issues right now are these negotiations that are going on between Monica Lewinsky's new legal team, Plato Cacheris and Jacob Stein, and the office of the independent counsel in which she presumably would get some sort of immunity in exchange for her becoming a cooperative witness. Where do those negotiations stand?
Bakaly: Well, I can't comment about the ongoing discussions or what the state of play is, I think that some of the theories have been put in the papers as to the positions of the parties. ... But, regarding Ms. Lewinsky, again, our position has not changed, we would want her to come in and to meet with our team and our prosecutors and to describe for them her complete and truthful testimony. There have been reports that she is willing to talk about one area, not willing to talk about another, we need her full information.

Blitzer: And Linda Tripp, she's coming back this week to appear before the grand jury? Bakaly: I believe her lawyers have said that. Yes.
Blitzer: And beyond Linda Tripp, will Betty Currie be called again?
Bakaly: I believe she has said. See, I have to be very careful. I -- we do not comment as the prosecutors cannot comment about the grand jury. And that includes the anticipated witnesses. But I believe her lawyer has said that she will be back too.

CNN Late Edition with Wolf Blitzer, July 5, 1998 (Tab H). It is inconceivable that the OIC authorized Mr. Bakaly to refer to these articles because they were wrong. Plainly no viewer would have heard his remarks as anything but a total confirmation of the cited news reports -- if such news reports even exist. These television appearances just this past weekend are compelling evidence of the on-going harm.

As this recitation establishes, to suggest that appellees have suffered and will suffer no further harm reflects the OIC's stubborn disregard for both the obligations of Rule 6(e) and the district court's orders. One of the primary interests to be served by the protection of Rule 6(e) is to "assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979). Those interests will continue to be violated until the leaks are stopped.

© Copyright 1998 The Washington Post Company

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