THE IMPEACHMENT HEARINGS
Rep. Jerry Nadler Questions Starr
Thursday, November 19, 1998
REP. NADLER: Thank you.
Mr. Starr, we all agree on the paramount importance of the rule of law. Now Section 594 of Title XXVIII of U.S. Code requires an independent counsel to comply with the written or other established policies of the Department of Justice.
Section 77.5 of Title XXVIII of the Code of Federal Regulations states in relevant part, and I quote: "An attorney for the government may not communicate or cause another to communicate, with a represented party, who the attorney for the government knows is represented by an attorney, concerning the subject matter of the representation, without the consent of the lawyer representing such party," close quote.
And I would point that with respect to Monica Lewinsky, her attorney was Frank Carter, who is a criminal, as well as a civil, attorney; who ran the public defender's program in the District of Columbia's criminal courts for a number of years; and the subject matter of the representation, he was the one who developed the affidavit in the Paula Jones case, which was one of the subjects that you were going to question her about, which was the subject of the investigation.
Now these regulations are intended to ensure that a person's right to counsel is respected. Under this policy, your office never should have contacted Monica Lewinsky directly on January 16th without the consent of her attorney Frank Carter.
I have two questions. My first question -- but I'll ask you to withhold till my second is asked -- is: Why did your office violate the law and the Justice Department guidelines by contacting her directly on January 16th, since your answer to Mr. Lowell's question is obviously not correct, given what I just said about Mr. Carter's representation in the Jones affair and his being a criminal attorney?
Second, under the Justice Department guidelines for all federal prosecutors, it is unethical to keep criminal suspects from calling their lawyers. The evidence suggests that Lewinsky was told by your office not to contact her counsel and that your office, in fact, suggested that her immunity deal was contingent upon her not contacting him.
Here are some excerpts from Lewinsky's grand jury testimony:
(Begin excerpts from Monica Lewinsky's grand jury testimony.)
MONICA LEWINSKY: I said I wasn't going to talk to them without my lawyer. They told me that, if my lawyer was there, they wouldn't give me as much information and I couldn't help myself as much so that --
A JUROR: Did they ever tell you that you could not call Mr. Carter?
MS. LEWINSKY: No. What they told me was that if I called Mr. Carter, I wouldn't necessarily still be offered an immunity agreement.
A JUROR: Sounds as though they were actively discouraging you from talking to -- an attorney?
MS. LEWINSKY: Yes.
A JUROR: Is that a fair characterization?
MS. LEWINSKY: Yes.
MR. STARR: Well, from Frank Carter.
MS. LEWINSKY: From Frank Carter, who was my only attorney at that point. I didn't have another attorney, and this was my attorney for this case. So --
A JUROR: And this is the attorney who had helped you with the affidavit?
MS. LEWINSKY: Yes, and the affidavit wasn't even filed yet.
(End of excerpts from Monica Lewinsky's grand jury testimony.)
REP. NADLER: -- unquote.
The right to counsel was not a trivial issue here. Lewinsky points out in her grand jury testimony that, when your office confronted her on January 16th, her affidavit had not yet been filed in court. It wasn't in fact filed until four days later, on January 20th.
Isn't it a fact, sir, that had you allowed Ms. Lewinsky to contact her attorney, Frank Carter, on January 16th he could have withdrawn the affidavit or amended it prior to filing it in court, and in that way substantially weakened any criminal case against her? And isn't it a fact that the effect and perhaps the real reason for your office telling Ms. Lewinsky not to contact her counsel on January 16th was to prevent his withdrawing or amending it, so -- and -- was to prevent his withdrawing or amending her affidavit, and thereby substantially weakening the criminal case against her and subsequently against the president? In other words, isn't it likely that if you had not violated the law one of the foundation stones of all of the alleged crimes in the Monica Lewinsky affair would never have occurred?
MR. STARR: Congressman --
REP. NADLER: That's my second question. (Laughter.)
MR. STARR: You did ask what I took to be several questions. But I have to disagree with the premise, and I disagree strongly with the premise.
REP. NADLER: Which premise?
MR. STARR: We did not violate the law. And if I might explain why -- and it has been litigated -- if I could answer? These very issues which you have very clearly stated have been argued in a court of law. The chief judge of this district has addressed these issues with respect of whether there was a denial of counsel. Good lawyers can come up with good arguments. I don't know a single lawyer --
REP. NADLER: Could you tell us why this was not a denial of counsel?
MR. STARR: She concluded, based upon all the facts, that Mr. Carter was not her counsel for purposes --
REP. NADLER: Excuse me, eleven hours later, after she was held for eleven hours, after your people told her that if she retained Mr. Carter, if she kept Mr. Carter rather, that you would -- that the immunity deal would not be on the table, after your people told her incorrectly that he was not a criminal attorney, after it was made very clear that she better not keep him -- she then --
REP. HYDE: Mr. Nadler, you had a five-minute question. Would you let him answer?
MR. STARR: Congressman, I disagree with all respect with virtually every premise that informed every --
REP. NADLER: Let me ask one one-sentence question.
REP. HYDE: No, just a moment. Now, be fair. Let him answer your question. Would you let -- you don't have time for another question.
REP. NADLER: That's why I wanted to ask it.
REP. HYDE: I know that's why you wanted to ask it. (Laughter.)
MR. STARR: Well, if I could be very brief, but you stated a number of things, and with all respects they're virtually all incorrect. And let me begin by saying to the extent that your concerns are -- and anyone should be concerned with respect to the issue of denial of counsel -- the issue has been litigated, as I was just about to say, and resolved adversely to Ms. Lewinsky. She had very active lawyers. They knew how to make arguments. That's where we argue these things in court. She lost for reasons that I tried to explain in terms of my colloquy with Mr. Lowell.
But let me also say, because there's been a number -- and you began, as I recall, your comments with DOJ policy. Now, Mr. Nadler, the assurance that I want to give you is that we consulted with the Justice Department about the procedure that we were going to employ prior to the time that we engaged in the procedure. And the procedure that we engaged in is what law enforcement does all the time. And, as I said this morning, it's not our job to reinvent the investigative wheel. We follow traditions and traditional practices, and that is what we did in this instance. The Justice Department knew what we were going to do, and they knew specifically about the Frank Carter issue.
REP. NADLER: They knew you were going to threaten her not to keep Frank Carter as her attorney?
MR. STARR: I again disagree respectfully with the premise. What we -- I'll be very brief. What we put before Ms. Lewinsky was a choice. She had committed felonies. She was involved in the middle of committing additional felonies, and we said to you -- you will be of assistance to us, or you have the potential to be of assistance to us if you become a compete cooperating witness. Now, you have the right -- and, as I said earlier today in a colloquy -- we in fact placed a phone call to -- we in fact placed a phone call to Mr. Carter that evening. We scrupulously and insidiously abided by right to counsel. But we also had reservations at the time about Mr. Carter. We don't have those reservations anymore. I want the record of this proceeding to be absolutely clear: Mr. Carter was an unwitting participant in drafting a perjurious affidavit.
But, Congressman Nadler, we did not know that at the time. We knew he had been engaged by Mr. Jordan, and we were looking into and telling the Justice Department here are the issues that we want to look into. We want to see is there something here that may involve criminality at a very high level? And we informed the Justice Department, we abided by Justice Department practice and policy. The issue was litigated, and the chief judge of this district has adjudicated the matter and has determined that there was no depravation of the right to counsel. To me it seems to me that matter should be viewed as closed in terms of the legality of the process.
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