Kendall talking to reporters on Feb. 6 (Dudley M. Brooks/The Washington Post) Related Links Kendall's Feb. 6 letter to Starr Starr's Response

March 2, 1998

Following is the full text of two motions filed by President Clinton's lawyers on Feb. 9, asking the U.S. District Court to hold independent counsel Kenneth W. Starr's office in contempt for violating grand jury secrecy rules and to require Starr to preserve all evidence of his office's contacts with the news media. They were submitted with supporting memoranda (included below) and an appendix consisting of hundreds of photocopied pages of news reports. See the Post story.

Motion for Order to Show Cause
Memorandum in Support of Motion for an Order to Show Cause
Motion for Protective Order
Memorandum in Support of Motion for Protective Order

Motion for Order to Show Cause

MOTION FOR ORDER TO SH0W CAUSE

President William J. Clinton respectfully moves this Court for an order that the Office of the Independent Counsel show cause why it, or individuals therein, should not be held in contempt for violations of Federal Rule of Criminal Procedure 6(e)(2) or be subject to other appropriate equitable remedies. The reasons why this Motion should be granted are set forth in the accompanying Memorandum.

Memorandum in Support of Motion for an Order to Show Cause

MEMORANDUM IN SUPPORT OF MOTION FOR AN ORDER TO SHOW CAUSE

The Office of the Independent Counsel ("OIC") has been conducting a grand jury investigation of Monica Lewinsky for nearly three weeks, and in that time period the public has been subjected to a torrent of confidential grand jury and investigative information. Sometimes this grand jury material is attributed by the press directly to "sources in Starr's office." Sometimes it is attributed by the press more circumspectly to "sources familiar with the investigation." And sometimes it is attributed even more cautiously to "sources," who divulge information that leaves little doubt as to its provenance. Whatever the precise nuance of attribution, however, the information, or frequently misinformation, that is leaking from the Lewinsky investigation is typically prejudicial to President Clinton and appears to be coming from the OIC.

If, as the available evidence appears to indicate, the OIC is responsible for even some of these selective disclosures of "matters occurring before the grand jury," then government lawyers or agents have violated Rule 6(e) of the Federal Rules of Criminal Procedure, as well as numerous professional codes of conduct. The harm from this conduct is immense – the deluge of leaked information undermines the fundamental and venerable principle that grand jury investigations must be conducted in secrecy and damages the institutions of justice, the integrity of the investigative process, and the many individuals caught up in this investigation.

The first issue before the Court, however, and the only one to be resolved at this time, is whether there is prima facie evidence that the OIC has unlawfully disclosed matters protected by Rule 6(e), Fed. R. Crim. P. The available evidence on this point is overwhelming. The trail of leaks leads to the OIC and demands an explanation. The law in this Circuit is crystal clear. Once a prima facie case is shown, "the burden shifts to the [OIC] to come forward with evidence to negate the prima facie case" and "the district court must conduct a 'show cause' hearing to determine whether the [OIC] was responsible for the pre-indictment publicity and whether any information disclosed by the [OIC] concerned matters occurring before the grand jury." Barry v. United States, 865 F.2d 1317, 1321 (D.C. Cir. 1989) (emphasis added). We respectfully submit that a prima facie case is plainly established here.

I. GRAND JURY MATERIAL HAS BEEN LEAKED WITH ATTRIBUTION TO THE OIC

Given the very short time frame of this active investigation, the number of leaks of grand jury information – as that term is defined under Rule 6(e) – is absolutely stunning and, unfortunately, ever-increasing. ^l/ Many press accounts unabashedly attribute their "information" to the OIC. The illustrations are legion:

"[S]ources in Starr's office have told NBC News that the information Lewinsky's lawyers were offering was simply not enough. . . . Sources in Starr's office and close to Linda Tripp say they believe the instructions [or talking points] came from the White House. If true, that could help support a case of obstruction of justice. . . . Sources say that's one reason why Ken Starr seized Lewinsky's computer. And they also tell us from Starr's office that they figure the most corroborating evidence they gather . . . . [NBC Nightly News 2/4/98, Appendix Tab 1]

"Prosecutors painted a different picture [of Vernon Jordan's assistance]. 'Monica says . . . that she dealt directly with the President, who set the assistance in motion,' one lawyer said, speaking on condition of anonymity." [New York Daily News 1/23/98, Appendix Tab 2]

"For example, sources in Starr's office told me yesterday they had drawn up a subpoena for Ronald Perelman, the Revlon head who put Clinton pal Vernon Jordan on his board." [The New York Post 1/27/98, Appendix Tab 3]

"The decision to drop Monica Lewinsky from the Paula Jones case has no impact on the investigation of whether President Clinton lied under oath about an alleged affair, a source in Whitewater counsel Kenneth Starr's office said yesterday." [The New York Daily News 1/31/98, Appendix Tab 4]

"Some members of Mr. Starr's legal team are also concerned that Ms. Lewinsky's 'proffer,' the summary of her proposed testimony, does not reflect some snippets of conversations that she claimed to have had with Mr. Clinton on 20 hours of tapes secretly recorded by a friend. But one lawyer insisted that the omissions 'are not significant.'" [The New York Times 2/2/98, Appendix Tab 5]

"One of her dresses was recently tested, with negative results, said one Federal investigator, who would not say what else might be tested." [The New York Times 2/4/98, Appendix Tab 6]

"One official involved in the discussions about whether Ms. Lewinsky would cooperate with the investigation by Kenneth W. Starr, the Whitewater independent counsel, said prosecutors had set a deadline of Friday at noon for her lawyers to indicate whether she would talk to prosecutors. If the deadline passes without a deal, the official said, Ms. Lewinsky could face prosecution on charges of lying under oath about her relationship with the President." [The New York Times 2/5/98, Appendix Tab 7]

"Sources in Starr's office suggesting that if Monica Lewinsky does not negotiate an immunity deal quite soon they are prepared to go ahead and press charges against her." [CNN Early Edition 2/5/98, Appendix Tab 8]

But Newsweek has confirmed that Clinton and Lewinsky did in fact meet last Dec. 28, and investigators are examining the possibility of several other occasions on which the two met alone after her departure from the White House." [Newsweek 2/9/98, Appendix Tab 9]

"Mrs. Currie has been extensively interviewed by agents and prosecutors from Mr. Starr's office . . . .According to the account provided by Mrs. Currie, the lawyers said, the President called her Saturday night . . . ." ^3/ [The New York Times 2/6/98, Appendix Tab 11]

"A longtime White House Steward told a federal grand jury that he saw President Clinton and Monica Lewinsky alone together in a study adjacent to the Oval Office, according to two individuals familiar with his testimony." ^4/ [Wall Street Journal Web Page 2/4/98, Appendix Tab 12]

"The decision came as Starr issued a flurry of subpoenas seeking witnesses who could corroborate the tales Lewinsky told on the tapes. Among those who received subpoenas yesterday were Betty Currie, Clinton's personal secretary, a few other low-level White House aides and several former White House interns who had worked with Lewinsky, according to sources familiar with the investigation." [Washington Post 1/23/98, Appendix Tab 15]

"[S]ources close to Starr describe a far different episode that dragged on mainly because Lewinsky insisted her mother be present. Although investigators did pressure her to cooperate, sources said, the onetime White House intern spent much of the time waiting for her mother to arrive . . . ." [Washington Post 1/24/98, Appendix Tab 16]

"Starr wanted her to let him monitor her telephone conversations with possible witnesses who could corroborate the tales she told on the tapes, although a source close to the prosecutor insisted he never intended to eavesdrop on Jordan or Clinton. . . . According to sources. Starr's office is unwilling to grant immunity without an explicit understanding of what she would testify. There is also some reluctance to letting Lewinsky off without her agreeing to plead at least to a minor charge, for fear that Clinton's lawyers would use that as evidence of a 'sweetheart deal' that enticed her to change her story." [Washington Post 1/25/98, Appendix Tab 17]

"[P]eople familiar with the investigation said Starr is pursuing what investigators consider 'credible' indications that a Secret service agent or other member of the White House Staff saw Clinton and Lewinsky together under embarrassing circumstances." [Los Angeles Times 1/26/98, Appendix Tab 18]

We are not alone in ascribing these leaks to the OIC. Even the press – which of course knows who its sources are – acknowledges that the OIC is leaking. For example, The Washington Post, writing about the sources of leaks, noted that the Betty Currie New York Times "story appears to have come in large measure from the office of Kenneth Starr." The Washington Post (2/7/98), Appendix at Tab 20. NPR reporter Nina Totenberg, on the same subject and story, observed that "'[t]his has all the earmarks of a Starr leak. It is clearly the worst-case interpretation.'" Ibid.

William H. Ginsburg, Esq., counsel for Ms. Lewinsky, has come to the same conclusion. Mr. Ginsburg is reported to have said that Mr. Starr "has tried to coerce [Ms. Lewinsky] to testify by intimidating her family and selectively leaking information designed to make her think he has other witnesses and therefore might not need her cooperation as much." The Washington Post (2/8/98), Appendix Tab 21. Mr. Ginsburg also denied being the source of any of the information being attributed to the OIC. Ibid.

II . THE EVIDENCE REQUIRES A "SHOW CAUSE" HEARING

Well-settled case law in this Circuit prescribes that a prima facie showing of a Rule 6(e) violation is made upon a demonstration that media reports are (1) disclosing "matters occurring before the grand jury" and (2) that the reports suggest that the sources of the information include government attorneys and their agents. See Barry v. United States, 865 F.2d 1317, 1321 (D.C. Cir. 1989); see also Finn v. Schiller, 72 F.3d 1182, 1189 n.7 (4th Cir. 1996); United States v. Eisenberg, 711 F.2d 959, 963 (llth Cir. 1983); In re Grand Jury Investigation (Lance), 610 F.2d 202, 216-20 (5th Cir. 1980) ("Lance"). The burden then shifts to the OIC to prove that it is not the source of the grand jury information. Barry, 865 F.2d at 1321. Under the circumstances here, we respectfully submit that the evidence overwhelmingly establishes such a prima facie case. For that reason, the Order to Show Cause should issue.

A. Rule 6(e) Precludes Public Disclosure of Matters Occurring Before the Grand Jury

Rule 6(e) of the Federal Rules of Criminal Procedure, the "General Rule of Secrecy" for grand jury proceedings, provides in pertinent part:

[A]n attorney for the government . . . shall not disclose matters occurring before the grand jury, except as otherwise provided by these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.

An essential purpose of this requirement of grand jury secrecy is to avoid "injury to the reputation of those persons accused of crimes whom the grand jury does not indict." Lance, 610 F.2d 202, 213 (5th Cir. 1980); see also Douglas Oil Co., 441 U.S. at 219 ("[B]y preserving the secrecy of the proceedings we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule."). As the Supreme Court has emphasized, "grand jury secrecy . . . is 'as important for the protection of the innocent as for the pursuit of the guilty.'" Sells, 463 U.S. at 424 (quoting United States v. Johnson, 319 U.S. 503 (1943)).

The enormous harm that can come from disclosure of confidential grand jury material by government agents, particularly when, as here, the disclosures are selective and frequently misleading or inaccurate, is self-evident. Without a proper legal forum to respond to charges or an adversary to confront and refute, an individual subject to selective disclosures of grand jury material is "as defenseless as the medieval prisoner and the victim of the lynch mob." United States v. Briggs, 514 F.2d 794, 803 (5th Cir. 1975); see also Finn v. Schiller, 72 F.3d 1182, 1189 (4th Cir. 1996) ("Courts must not tolerate violations of Rule 6(e) by anyone, especially United States Attorneys who, as alleged in this case, may do so in an effort to pressure a target into a plea agreement.").

The Rule 6(e) bar against disclosure applies to all "matters occurring before the grand jury," and that term is construed broadly to encompass "events which have already occurred before the grand jury," Lance, 610 F.2d 202, 216-217 (5th Cir. 1980), as well as "matters which will occur," id. at 217, including "the strategy or direction of the investigation," Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 869 (D.C. Cir. 1981). It embraces "anything which may tend to reveal what transpired before the grand jury," Lance, 610 F.2d at 216 (citations omitted) (emphasis added), including the identities of the witnesses and jurors, the substance of testimony, and the deliberations or questions of the jurors, Senate of the Commonwealth of Puerto Rico v. United States, 823 F.2d 574, 582 (D.C. Cir. 1987).

Importantly, the prohibition of disclosure is not limited to statements made within the walls of the grand jury. It applies equally to information given to investigators by witnesses who have been subpoenaed to appear before a grand jury, In re: The Special February 1975 Grand Jury (Baggot), 662 F.2d 1232, 1238 (7th Cir. 1981), aff'd on other grounds, 463 U.S. 476 (1983); see also In re: Grand Jury Proceedings (Daewoo), 613 F. Supp. 672, 681 (D. Ore. 1985). And it protects investigative reports, including FBI reports, "where they are closely related to the grand jury's investigation itself and where disclosure would reveal the identities of targets and other witnesses." Martin v. Consultants & Administrators, Inc., 966 F.2d 1078, 1097 (7th Cir. 1992).

Thus in Baggot, the court ruled that notes of a witness interview were covered by Rule 6(e), where a witness "appeared and was interviewed in response to the grand jury subpoena," and the witness chose to avoid an appearance by speaking to the government. 662 F.2d at 1238. As the court aptly noted, "Making notes for the file in these circumstances may be considered a good administrative procedure, but Rule 6(e) is not thereby necessarily avoided." Id. Similarly, in United States v. Armco Steel Corp., 458 F. Supp. 784, 789 (W.D. Mo. 1978), the court held that summaries of interviews with witnesses who later testified before the grand jury are protected by Rule 6(e), noting that "[i]t cannot seriously be contended that the statements summarized in the memoranda are not reflective of the statements made before the grand jury." Id. Accord, In re Potash Antitrust Litigation, 896 F. Supp. 916, 918 (D. Minn. 1995); see also In re Secretary of Labor Raymond J. Donovan, 1986 U.S. App. LEXIS 29829 at *6 (D.C. Cir. Special Div. 1986) ("[I]t is clear that the policy of grand jury secrecy extends to matters "affecting or relating to grand jury proceedings.").

The Rule 6(e) secrecy rule additionally applies to information that is derived from or relies upon the grand jury process. For example, in United States v. Randell, 924 F. Supp. 557 (S.D.N.Y. 1996), the court held that a special agent's report constituted "a matter occurring before the grand jury" because it directly relied on the analysis of an assistant United States Attorney "that was, in turn, based on subpoenaed documents and grand jury witness testimony." Id. at 558. As Randell makes clear, if a government agent who is assisting the grand jury relies on grand jury information to identify witnesses and elicit additional information, that new information also is a "matter occurring before the grand jury." See Martin, 966 F.2d at 1097 (interview report covered by Rule 6(e) because the agent attended the interview only because of his participation in the Miami grand jury investigation"); Daewoo, 613 F. Supp. at 682.

Federal courts have described a Rule 6(e) violation as a "pernicious evil," which must be vigorous[ly] investigat[ed]" and punished. In re Grand Jury Investigation (90-3-2), 748 F. Supp. 1188, 1212 (E.D. Mich. 1990); see also United States v. Helmsley, 866 F.2d 19, 22 (2d Cir. 1989); Lance, 610 F.2d at 219. ^5/ The gravity of the prohibition against disclosure is a product of the great harm that can result from violations of the secrecy rule. "If 'a drop of acid gossip suffices to curdle a reputation irrevocably,' . . . it takes no imagination to realize the harm done from a leak, much less continuous leaks, of grand jury matters." In re Grand Jury Investigation (90-3-2), 748 F. Supp. at 1212 (quoting Judge Jerome Frank).

B. This Circuit Has Established Procedures that Must Be Followed Once A Prima Facie Case Is Shown

The rules governing how a party alleges and proves a Rule 6(e) violation are clearly established in this Circuit. A prima facie case of a violation of Rule 6(e)(2) is made when it is shown that "media reports disclosed information about 'matters occurring before the grand jury' and indicated that the sources of the information included attorneys and agents of the Government." Barry v. United States, 865 F.2d 1317, 1321 (D.C. Cir. 1989). In Barry, Marion Barry, the Mayor of Washington, D.C., brought an action against the United States Attorney for the District of Columbia, among others, alleging that the government had unlawfully disclosed matters occurring before a grand jury investigating corruption allegations. The Court of Appeals for this Circuit held that Mayor Barry had made a prima facie showing of a Rule 6(e) violation based largely on statements taken from just two press articles. The first, a New York Times article, disclosed information provided by "'law enforcement officials familiar with [Mayor Barry's] testimony' concerning matters before a grand jury." Barry, 865 F.2d at 1325. The second article, from The Washington Post, mentioned grand jury testimony, and cited "the comments of an allegedly 'knowledgeable law enforcement official' about that testimony." Id.

The Court of Appeals also noted that articles with less direct attributions might also be problematic. It found persuasive a "spectrum" of additional articles about the investigation which were more ambiguous as to source. The Court noted that "[t]he precise attribution of a source in one . . . may give definition to a vague source reference in others because of their context in time or content." Id. at 1326 (citations omitted). Furthermore, it was "not necessary for [an] article to expressly indicate the Justice Department as the source of the disclosures if the nature of the information disclosed furnishes the connection." Id. at 1326 (citations omitted).

The Court in Barry held that this evidence alone was sufficient to make out a prima facie case and require an evidentiary hearing because an appellant "cannot be expected to do more at this juncture of the litigation; complainants in Rule 6(e)(2) cases almost never have access to anything beyond the words of the news report." Ibid. (citations omitted). Moreover, the government investigators "are in the best position to know whether they are responsible for a violation of the Rule." Ibid. (citations omitted); see also Lance, 610 F.2d at 219 ("the court must assume that all statements in the news report are correct"). ^6/ At the evidentiary hearing, the burden shifts to the prosecutors to come forward with evidence to negate the prima facie showing, and the Court must look further into the violation to determine whether they have "unlawfully disclosed matters before the grand jury." Barry, 865 F.2d at 1326.

The Court of Appeals' analysis in Barry squarely governs this case. We are in no position to know anything more about the source of the investigative and grand jury information contained in the media reports than what is available facially from the reports themselves. Those reports, however, provide all that is necessary to shift the burden to the prosecutors in a "show cause" hearing because the reports "disclose information about 'matters occurring before the grand jury' and indicate that sources of the information included [the OIC]." Id. at 1325 (citations omitted).

C. The Information Attributed to OIC Sources Constitutes "Matters Occurring Before the Grand Jury"

In an effort to avoid wasting the Court's time with a cumulative presentation of evidence, we have focussed in this memorandum on fifteen media reports that both reveal matters occurring before the grand jury and are linked to the OIC. ^7/ See supra at 3-6. In addition, we have provided the Court with a supplemental set of press articles ^8/ that reveal further evidence of leaked Rule 6(e) material, by no means a complete compilation, in the Appendix at Tab 19. As in Barry, many of these articles individually make a prima facie Rule 6(e) case; taken together, they paint an overwhelming and compelling picture of apparent abuse.

The fifteen news reports highlighted in this memorandum offer to the public a large sampling of protected Rule 6(e) material. For example, the NBC News report of 2/4/98 (Tab 1) discusses the strategy and direction of the investigation, plea negotiations with a subpoenaed witness, information "seized" by the grand jury, potential evidence to be presented to the grand jury, and the status of potential witnesses that might be called to testify. The Betty Currie New York Times article (Tab 11) and the Nelvis Wall Street Journal web site report (Tab 12) are similarly full of Rule 6(e) material, including most prominently alleged accounts of grand jury testimony and/or statements to investigators made in conjunction with grand jury subpoenas and followed by grand jury testimony. The New York Daily News of 1/23/98 (Tab 2) reviews evidence of the OIC's prosecution strategy, while the New York Post of 1/27/98 (Tab 3) reveals that the OIC has drawn up a subpoena for Ronald Perelman, and the New York Times of 2/4/98 (Tab 6) discloses the results of lab tests on materials allegedly seized by agents of the grand jury. The CNN story of 2/5/98 (Tab 8) reports on indictment strategy, which is at the heart of the grand jury's confidential function.

Each and every one of these stories discloses matters occurring before the grand jury that go to the heart of the Rule 6(e) secrecy requirement. They publicly smear individuals with information purportedly gathered from witnesses, thereby wounding both the witnesses and the subjects of their alleged testimony. They report on the course of the investigation, as to who may be indicted and why, as to what information the OIC is seeking and from whom, and how it is evaluating the information it receives. The grand jury process is made selectively and dangerously transparent by these stories at great prejudice to the individuals caught up investigation, including President Clinton.

D. Court Rules, in Keeping with Ethical Rules and Other Professional Codes of Conduct, Prohibit Public Disclosure of Investigative Material

In addition to violating Rule 6(e) of the Federal Rules of Criminal Procedure, the public disclosure of investigative information runs afoul of this Court's Rules, Department of Justice regulations and ethical and professional standards of conduct for attorneys, prosecutors, and executive branch officials. The Rules of this Court, which this Court is, of course, charged with enforcing, provide:

[w]ith respect to a grand jury or other pending investigation of any criminal matter, a lawyer participating in or associated with the investigation shall refrain from making any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, that goes beyond the public record or that is not necessary to inform the public that the investigation is underway, to describe the general scope of the investigation, to obtain assistance in the apprehension of a suspect, to warn the public of any dangers, or otherwise to aid in the investigation.

Rule 6(e) and the Local Rules reflect a broader understanding that government investigations must be conducted in secret as a basic matter of fairness. Thus, the Department of Justice guidelines for the release of information relating to a criminal proceeding expressly caution that "[t]he release of certain types of information generally tends to create dangers of prejudice without serving a significant law enforcement function." 28 C.F.R. § 50.2(b)(6) (1997). Forbidden disclosures, recognized as inherently prejudicial and serving no proper or legitimate purpose, include "statements concerning the identity, testimony, or credibility of prospective witnesses, statements concerning evidence or argument in the case . . . . and any opinion as to the accused's guilt, or the possibility of a plea of guilty to the offense charged, or the possibility of a plea to a lesser offense." 28 C.F.R. § 50.2 (b)(6)(iv)- (vi). The running commentary that appears to be emanating from the OIC on the parade of witnesses before the grand jury, the testimony given, the fruits of the investigation, and the ongoing negotiation of plea and immunity arrangements is precisely this type of prohibited disclosure.

Professional codes of conduct governing attorneys, and in particular prosecutors, also prohibit the type of disclosures presented in the Lewinsky media reports. The ABA Standards for Criminal Justice relating to the prosecution function provide that "[a] prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding." ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-1.4(a) at 12-13 (3d ed. 1993). A prosecutor is also responsible for exercising "reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor" from making such a statement. Id., Standard 3-1.4(b). The ABA Standards for Criminal Justice relating to Fair Trial and Free Press and the District of Columbia Rules of Professional Conduct contain similar prohibitions. See ABA Standards for Criminal Justice, Fair Trial and Free Press, Standard 8-1.1 (3d ed. 1992); District of Columbia Rules of Professional Conduct, 3.6, 3.8 (1995).

Furthermore, both the United States Attorney's Manual and the Standards of Ethical Conduct for Employees of the Executive Branch forbid the dissemination of such nonpublic information. See United States Attorney's Manual, § 45.735-10 ("No employee shall use for financial gain . . . , or make any other improper use of, whether by direct action on his part, or by counsel recommendation, or suggestion to another person, information which comes to the employee by reason of his status as a Department of Justice employee and which has not become part of the body of public information."); 5 C.F.R. § 2635.703(a) (1997) ("An employee shall not . . . allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure."). ^9/

These principles no doubt underlie this Court's strict Local Rule 308(b)(2), which broadly prohibits dissemination of nonpublic criminal investigative matters, whether directly from within the grand jury room or otherwise. They are reminders that prosecutors' "legitimate channels of communication are narrow rather than wide and that they should err on the side of silence." In the Matter of Grand Jury Investigation (90-3-2), 748 F. Supp. 1188, 1212 (E.D. Mich. 1990). There can be no doubt that precisely such information has been disseminated.

III. THE COURT SHOULD ORDER A "SHOW CAUSE" HEARING AS A RESULT OF THE EVIDENCE OF LEAKS AND ISSUE A PROTECTIVE ORDER TO PRESERVE POTENTIAL EVIDENCE OF ILLEGAL PRESS CONTACTS BY THE OIC

"The possibility that federal law enforcement officials [are] responsible for the 'leak[s]' is a matter of grave concern, since such disclosures might be a betrayal of the grand jury's historic role as a shield for innocent citizens from unwarranted charges of wrongdoing." In the Matter of the Grand Jury Subpoena Served Upon Archuleta, 432 F. Supp. 583, 598 (S.D.N.Y. 1977). A prima facie case for that possibility is amply demonstrated on the record presented here. The law of this Circuit accordingly requires a "show cause" hearing at which the OIC bears the burden of "negat[ing] the prima facie case", and the Court must determine whether the OIC "unlawfully disclosed matters occurring before the grand jury." Barry, 865 F.2d at 1321, 1326; Finn, 72 F.3d at 1189 (When presented with a prima facie case, the court "must take appropriate steps to determine whether a violation has occurred"). Ultimately, the Court is empowered to order contempt sanctions and equitable relief. Barry, 865 F.2d at 1322.

In addition to holding a "show cause" hearing, counsel for President Clinton respectfully request that the Court enter a protective order designed to preserve all evidence that may be relevant to any OIC contacts with the press. The OIC cannot seriously contend that such an order would interfere with the investigative process, and it is critical to preserving a record that will allow this Court to exercise properly its supervisory powers so that the truth will emerge. To be clear, counsel for President Clinton are not asking for access to this material at this time, but simply that the OIC records pertaining to press contacts be preserved and safeguarded in their present state. A proposed Order is attached to our Motion for Protective Order.

CONCLUSION

For the preceding reasons, counsel for President Clinton respectfully requests that the Court issue the Order to Show Cause.

Footnotes

^1/ As background material for the Court, we have attached to this Memorandum at Tabs A & B copies of correspondence between counsel for President Clinton and the OIC on the problem of the leaks dated Friday, February 6, 1998. (Back to Text)

^2/ The publicity over the leak issue will undoubtedly make the press even more careful with explicit source attribution in the future. (Back to Text)

^3/ Without stating a view as to the veracity of other leaks, it is worth noting that Lawrence W. Wechsler, Esq., Ms. Currie's lawyer, emphatically denied the alleged implications of this story, which highlights the prejudicial nature of these leaks. See Appendix Tab 10. (Back to Text)

^4/ Joseph T. Small, Esq., the steward's attorney, immediately denounced the report as "totally false," thoroughly refuting any notion that the story came from him or his client, the individuals who would be familiar with the information and not covered by Rule 6(e). Appendix Tab 13. And the Wall Street Journal today acknowledged that its story was an "erroneous report." Appendix Tab 14. The report was nonetheless spread widely as though true and was extremely prejudicial to both President Clinton and Bayani Nelvis, the steward. This misinformation illuminates yet another danger of leaded "information:" it may reveal the kind of evidence the OIC is seeking to gather and invite copycat "testimony" and the like. (Back to Text)

^5/ The Independent Counsel as an attorney of the United States, is bound by the restrictions of Rule 6(e)(2). In re Oliver L. North, 16 F.3d 1234, 1245 (D.C. Cir. 1994). (Back to Text)

^6/ The Court in Barry was not dissuaded to find that a prima facie case for a Rule 6(e) violation had been made by the fact that the government submitted two affidavits of government officials saying they were not involved in leaking grand jury matters because "so many other officials were involved that these affidavits alone [could not] serve as an effective denial of wrongdoing by the appellees." Id. at 1325 n. 9. (Back to Text)

^7/ The complete texts of the fifteen media reports are found at Tabs 1-9, Tab 11, Tab 12, and Tabs 15-18. (Back to Text)

^8/ Copies of these articles are located at Tab 19, along with a summary sheet which provides excerpts from those media reports. (Back to Text)

^9/ The Office of the Independent Counsel is mandated to "comply with the written or other established policies of the Department of Justice to respecting enforcement of the criminal laws," except when to do so would be inconsistent with the purposes of the Independent Counsel statute. 28 U.S.C. § 594 (f)(1) (West Supp. 1997). It can hardly be argued that the wholesale release of grand jury information is consistent with the purposes of the Independent Counsel statute. (Back to Text)

Motion for Protective Order

MOTION FOR PROTECTIVE ORDER

President William J. Clinton hereby moves this Court for a protective order requiring the Office of the Independent Counsel to preserve all documents and things wherever located (whether at the Office of the Independent Counsel, at the law firm of Kirkland & Ellis, or elsewhere) referring or relating to any contact or communication between a member of the Office of the Independent Counsel, including agents, investigators, paralegals, and clerical staff, and an individual who is a member of, or who is affiliated with or acting on behalf of or as an agent of, the print or electronic media or any person, persons, or entity engaged in the practice of journalism, including freelance journalism, from January 15, 1998.

President Clinton moves that this protective order shall also apply to and require the preservation and safeguarding of all covered documents and things created from January 15, 1998 until further order of this Court.

WHEREFORE, President Clinton requests that the Office of the Independent Counsel be ordered to preserve all document and things as described above, and as set forth in the accompanying proposed order.

Memorandum in Support of Motion for Protective Order

MEMORANDUM IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

As set forth in President Clinton's Motion for an Order to Show Cause and accompanying Memorandum, the evidence of media reports overwhelmingly constitutes we believe a prima facie showing that the Office of the Independent Counsel ("OIC") has violated the secrecy requirements of Rule 6(e) of the Federal Rules of Criminal Procedure and the Local Rules of this Court. According to the law of this Circuit, the burden would now shift to the OIC to refute that prima facie showing at a "show cause" hearing. Barry v. United States, 865 F.2d 1317, 1321 (D.C. Cir. 1989).

Until resolution of the Motion for an Order to Show Cause, a protective order is necessary to preserve evidence that might be relevant to this inquiry. The proposed protective order 1/ covers only information related to the OIC's press contacts and should in no way interfere with its proper investigative functions.

CONCLUSION

For the preceding reasons, counsel for President Clinton respectfully requests that the Court issue a protective order.

^1/ The definition of "Document" in the proposed order is taken directly from the language used by the OIC in its subpoenas.