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Punishing Leaks Is as Hard as Plugging Them

By Ruth Marcus and Roberto Suro
Washington Post Staff Writers
Saturday, February 7, 1998; Page A13

The complaint by lawyers for President Clinton about "out of control" leaking from independent counsel Kenneth W. Starr is just the latest installment in the long-running but rarely resolved battle between defense lawyers and prosecutors over information that is supposed to remain secret yet makes its way into news reports.

Leaks happen, particularly in high-profile cases. Because there are so many potential sources of information -- prosecutors, FBI agents, defense lawyers, witnesses -- the leaker is rarely identified and even more rarely punished. Still, defense lawyers inevitably seize the opportunity to mount bitter protests, claiming that their clients have been irreparably harmed.

Yesterday that traditional dance was played out on the national stage with a particularly nasty exchange between Clinton's personal lawyer, David E. Kendall, and Starr. Kendall took to the steps of his law firm to denounce the independent counsel for leaking and said he would take him to court on Monday, whereupon Starr faxed to news organizations an angry response that all but accused Clinton's lawyers of being the source of the damaging leaks in the first place.

Kendall's blast at Starr, which included a 15-page letter to the independent counsel packed with words like "intolerable," "deeply unfair" and "prejudicial," was triggered by new reports about statements that the president's secretary, Betty Currie, gave to Starr's investigators about her conversations with the president. The New York Times first reported the story, quoting "lawyers familiar with her account."

Kendall accused Starr of violating an array of laws, rules and ethical prohibitions, saying he had complained privately since Starr's 1994 appointment, but was moved to take issue publicly yesterday because of the flurry of stories surrounding Starr's investigation of Clinton's alleged affair with Monica S. Lewinsky.

The basic rule governing prosecutors' conduct in this area is Rule 6(e) of the Federal Rules of Criminal Procedure, which prohibits government lawyers and agents from disclosing any "matters occurring before the grand jury" -- a rule that would apply to the story about Currie's statements because she appeared before the grand jury last week.

Violations of Rule 6(e) are considered "contempt of court," are punishable with fines or even jailing and are considered a serious criminal matter. In 1985, J. William Petro, a former U.S. attorney in Cleveland, was fired and fined $7,500 after being convicted of disclosing an indictment's contents.

However, the rule does not prohibit witnesses themselves -- or their lawyers -- from providing accounts of prosecutors' questions and their testimony. Indeed, in the last two weeks, a parade of Whitewater grand jury witnesses, from former White House chief of staff Leon E. Panetta to former White House interns, have stood on the steps of the federal courthouse here and offered summaries of what they said inside the grand jury room.

In addition to Rule 6(e), the Justice Department's own regulations prohibit prosecutors from disclosing investigative information. But those rules do not have the force of law and would simply prompt disciplinary proceedings if a violation were found.

Starr is supposed to abide by Justice rules. But his role as independent counsel complicates the situation because the Justice Department cannot discipline him. The independent counsel statute provides only that Attorney General Janet Reno can fire Starr for "good cause," a power Congress, when the law was written in 1983, said should be used in "extreme, necessary cases."

Justice Department officials and attorneys familiar with the subject said that a violation of Rule 6(e) is a criminal matter of sufficient seriousness that it would likely be considered "good cause" for dismissal of an independent counsel if there was unquestionable evidence to back the charge.

Last year, Reno rejected complaints that Starr should be removed because of conflicts of interests arising from his status as a prominent Republican. At the time, the Justice Department concluded that "because of the strong interest in preserving the independence of the independent counsel, this removal power is not to be used lightly or on the basis of a minor or technical violation of some ethical or other duty."

Given the special status of an independent counsel, allegations of a grand jury leak would have to point very specifically at prosecutors before Reno would even initiate an investigation, according to a former official who handled misconduct matters. A leak that could just as easily have come from defense lawyers would probably not prompt an inquiry, the official said.

In his letter, Kendall also suggested he might seek to punish Starr by another avenue employed in 1987 by District Mayor Marion Barry. Barry filed a civil lawsuit accusing the Justice Department and then-U.S. Attorney Joseph E. diGenova of "a pattern and practice of prosecutorial abuse" by allegedly leaking details about a federal probe of possible corruption in D.C. government. Some of the articles cited by Barry included information that Barry said could have come only from government investigators.

The federal appeals court here ruled the case could go forward, but the lawsuit was dismissed three years later. The judge ruled that in each instance the news report about which Barry complained either did not reveal grand jury information, proved false, was attributable to vague sources or was explained adequately in government affidavits. The government filed affidavits by 82 federal officials denying they were the source of the leaks.

Kendall's complaint against Starr could face similar roadblocks. In addition to the Currie report, he listed an array of television and newspaper reports that he said illustrated an "appalling disregard for the legal and ethical requirements of grand jury and investigative confidentiality."

Some of the stories, however, are attributed in ways -- "lawyers close to the investigation," "lawyers involved in the talks" -- that could easily refer to those outside Starr's office.

For example, a USA Today story from Jan. 22 quotes "people familiar with the investigation" describing 20 hours of tape recordings between Lewinsky and former co-worker Linda R. Tripp. But numerous other sources besides Starr's prosecutors have information about the Tripp tapes.

Other stories that attribute information to "Starr's staff," "a source close to the prosecutors" or "sources in Starr's office" may not be violations because, even if they came from Starr, they do not rely on grand jury material. For example, a Jan. 25 Washington Post story quoted "a source close to the prosecutor" as saying he never intended to eavesdrop on Clinton or his friend, Vernon E. Jordan Jr., something that would seem to fall outside the bounds of Rule 6(e).

St. John's University School of Law Professor John Q. Barrett said, "There's a lot of posturing and if Starr's office is doing this they're not the first, but this is a case involving the president and if anyone's going to be Caesar's wife, maybe this is the person and this is the moment."

Staff writer Toni Locy contributed to this report.

© Copyright 1998 The Washington Post Company

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