Prosecutor Lobs a Grenade
By Howard Kurtz
The effort by independent counsel Kenneth W. Starr to compel Blumenthal's testimony in the Monica S. Lewinsky investigation had the odd effect of uniting journalists and White House officials, if only briefly, in denouncing what both sides see as an assault on the First Amendment.
"This just seems to be totally wacko," said Nina Totenberg, National Public Radio's legal correspondent, who was once the subject of a leak investigation.
"A very disturbing development that could have an impact on our ability to gather information for the public," said Alan Murray, Washington bureau chief of the Wall Street Journal.
Floyd Abrams, a veteran New York media lawyer, said the subpoena raises more questions about Blumenthal's rights than those of journalists. "The First Amendment issue here is the one involving the misuse of the grand jury process to punish opponents," he said. "It's terribly dangerous when the grand jury process is used potentially to inquire into what it is that critics of the special prosecutor are saying. . . . This is the stuff of the  Sedition Act."
A former journalist for the New Yorker and the New Republic magazines and The Washington Post who joined President Clinton's staff last summer, Blumenthal is a key proponent of the view that Starr is part of a right-wing conspiracy against the White House. Starr's office is said to suspect that Blumenthal has been retailing some recently published allegations about the public record of its prosecutors, and a Starr spokesman said the office has been deluged with media inquiries about alleged personal misconduct by some prosecutors.
The subpoena requires Blumenthal to turn over any documents involving contacts he may have had with journalists regarding Starr's office. Blumenthal appeared at the federal courthouse yesterday, but was told to return Thursday.
A longtime advocate of holding the press accountable for its excesses, Blumenthal is a controversial figure among his former colleagues. White House officials, for their part, question whether some reporters broached confidential relationships by either whispering to Starr's staff or hinting in print that Blumenthal had been spreading negative information about Starr's operation.
However Blumenthal came to be targeted -- and word of his subpoena, like much else in this case, was leaked to the media -- several Washington reporters fretted that he would be grilled about his dealings with them and their colleagues.
"What Sidney Blumenthal was doing is called politics," said Doyle McManus, Washington bureau chief of the Los Angeles Times. "The independent counsel has already been accused of criminalizing the political process. This looks perilously close to taking that one step further and potentially criminalizing the journalistic process."
"You just wonder where it leads," Murray said. "What does [Starr] do next? Does he subpoena telephone records?"
"Here's a guy whose job it is, in part, to talk to the press," Totenberg said of Blumenthal. If he is charged in the Lewinsky case, she said, "we really are living in a police state."
From the media point of view, the sudden focus on private conversations between reporters and White House officials represents another uncomfortable turn in the Lewinsky probe. Recent White House attacks on Starr's office for allegedly leaking information -- which is illegal if grand jury testimony is involved -- put journalists in the awkward position of reporting on a controversy in which some of them play a crucial role.
The Blumenthal subpoena takes the controversy a step further, involving not grand jury information but the daily transactions, many of them conducted under a cloak of anonymity, between journalists and political aides. Information, rumors and tips are shared freely in these conversations, and reporters routinely assume that their role, not just the official's identity, will remain confidential.
"If a source begins to talk about a reporter, if a reporter begins to talk about a source, it breaks down one of the fundamental avenues of coverage," said Marvin Kalb, director of the Joan Shorenstein press center at Harvard University.
Leak investigations tend to be costly, time-consuming and usually fruitless. A Senate probe into who leaked Anita Hill's 1991 allegations against Clarence Thomas to Totenberg and Newsday's Timothy Phelps produced a 171-page report that reached no conclusions. A $224,000 inquiry into CBS reporter Rita Braver's 1989 report on a preliminary probe of then-Rep. William H. Gray III led to the reassignment of two top Justice Department officials who failed polygraph exams.
"If Ken Starr is serious about finding out where leaks are coming from, he ought to start by investigating his own office," said Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. "It's disgraceful to do investigations of this nature that appear to be founded on the notion that Blumenthal criticized Ken Starr."
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