IS THIS WHAT CONGRESS INTENDED?
The Battle Over Subpoenas
By Florence George Graves
As part of his sprawling inquiry, Starr has several times subpoenaed information from news organizations and publishers. In pursuing some subpoenas, he has not followed longstanding Justice Department guidelines that place severe restrictions on federal prosecutors who want to subpoena journalists or their records. Moreover, he has said he is not bound by the guidelines, a stance that appears to put him squarely at odds with what Congress intended in enacting the independent counsel law.
The guidelines are not legally binding but are strictly adhered to by the Justice Department. Essentially, journalists cannot be subpoenaed without approval by the attorney general, which is given only if the prosecutor can meet certain conditions. As envisioned by the guidelines, pursuing journalists is supposed to be an action of last resort.
Most of the subpoenas to journalists have not been disclosed -- and some recipients seem uncharacteristically shy about discussing them -- but several have become public, including ones from Starr to ABC, two locally based television stations, the Wall Street Journal and book publisher William Morrow & Co.
Media attorney Floyd Abrams said Starr and other independent counsels have engaged in the "persistent subpoenaing" of journalists' notes and videotape that has not been aired ("outtakes," in TV lingo). Abrams, who made his name defending the New York Times in the Pentagon Papers case, said he knows of "five or six" subpoenas that have yet to surface. Abrams said he cannot reveal the names of these news organizations because "I've learned these things in confidence," although he is not personally involved in any of the matters.
Starr's reported conduct troubles Sen. Carl M. Levin (D-Mich.), who has co-sponsored the independent counsel law three times. The guidelines are among "the few constraints on the exercise of otherwise unlimited power," he told me in a recent interview. That's why, Levin asserts, Congress made it abundantly clear when it reauthorized the law in 1994 that independent counsels must follow the letter and the spirit of all Justice Department guidelines.
Starr has been able to quietly enlarge the scope of his power thanks, in part, to a 1996 ruling by U.S. District Judge Susan Webber Wright, who oversees the Whitewater grand jury in Arkansas. Responding to arguments by Starr in the case involving ABC, Wright gave him a legal green light to subpoena reporters and their records more freely.
Although it has received little attention, Wright's opinion could have profound consequences. The decision came after ABC challenged a subpoena from Starr for the outtakes from a "PrimeTime Live" interview with Whitewater figure Susan McDougal. Wright ordered ABC to turn over the outtakes, and the network did so without any further fight.
One crucial factor in Wright's decision is the wording in the 1994 reauthorization that Levin helped write. The law says independent counsels must follow Justice Department policies and guidelines -- unless complying "would be inconsistent with the purposes" of the independent counsel act. Starr argued to Wright that, because he must maintain his independence, "regulations of this type do not govern an independent counsel, who by statutory design operates for the most part outside the Department of Justice."
Neither Wright nor Starr would discuss the issue. But according to Levin, it was Congress's intent that independent counsels follow the guidelines -- so that those being investigated are subjected to neither a "less aggressive" nor a "more aggressive" standard than private citizens.
In rejecting ABC's motion to quash the subpoena, Wright noted a conflict between the independent counsel's role and the guidelines' requirement that the attorney general personally approve subpoenas to journalists. If Starr had to get Attorney General Janet Reno's approval, she said, his independence would be undermined. But the guidelines have many other provisions that Wright did not acknowledge, such as requiring prosecutors to show that the information is "essential to a successful investigation."
Levin, however, says "the independent counsel is supposed to abide by the same guidelines as every other federal prosecutor up to the point of seeking approval by the attorney general. If Kenneth Starr does not abide by the Justice Department guidelines, he would be violating the intent of the law."
A recent legal analysis by the Congressional Research Service, which has not been released publicly, supports Levin's point. Noting that some guidelines may permit some discretion, the memorandum nonetheless concludes that an independent counsel takes a risk by disregarding the law's intent that he follow all Justice Department guidelines. "In certain cases, [this may] constitute an abuse of that discretion to such an extent as to be sufficient grounds for a 'good cause' removal of an independent counsel," the analysis says.
The guidelines governing subpoenas to journalists were drawn up in 1970 after confrontations between reporters and then-attorney general John Mitchell. They state: "Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues."
Abrams says the battle over subpoenas to journalists has been waged largely out of public view, creating a "secret body of law." We know a little about this "subterranean" body of law because a clerk for the U.S. District Court in Arkansas mistakenly failed to seal a grand jury document in the ABC case and placed it in a file available to reporters. Once it was public, the court unsealed other related documents.
Abrams says the trend is deeply troubling because "there seems to be an explosion of subpoenas" and because everything has been done in secret. "No one was allowed to talk about it," he said. "Everything is in a grand jury context with papers filed under seal and the information sought under seal, objections made under seal, briefings under seal, and decisions which only counsel can see and which cannot be cited thereafter because they're issued under seal." Abrams doesn't know whether any of the outtakes or notes turned over to prosecutors identifies confidential sources "because I don't know what the journalists had."
The subpoena to William Morrow & Co. was for materials related to a book being written by a journalist and Webster Hubbell, the former associate attorney general and friend of the Clintons. The publisher launched an aggressive legal and PR campaign, and Starr backed off.
Starr subpoenaed two local TV stations for information after the Monica Lewinsky allegations broke. One station provided only what it had broadcast; the other said it did not have the requested footage of Clinton and Lewinsky. The Wall Street Journal, in response to a Starr subpoena, agreed only to confirm that information it had published was true.
In motions to quash their subpoenas, both Morrow and ABC argued that Starr was violating the guidelines, which say that if federal prosecutors think a journalist has relevant information, the department must try to reach some mutual agreement and make a strong case that the evidence cannot be obtained elsewhere before subpoenaing the journalist or the journalist's records. ABC, Morrow and the two TV stations have said Starr's office made no such effort.
Several officials I interviewed said the Justice Department, which recognizes the importance of a wall between law enforcement and the press, takes the guidelines seriously. Frederick Hess, the Justice Department official who reviews requests for such subpoenas, says very few prosecutors request them and few of those requests are approved by the attorney general. He emphasizes that the vast majority simply asked journalists to verify that what they had quoted was correct. The approved subpoenas rarely involve requests for notes or outtakes and "almost never" involve requests to identify sources, Hess said.
Former Iran-contra independent counsel Lawrence Walsh, a Republican, says he has "never subpoenaed a reporter." He said he takes seriously the principle that subpoenaing journalists, except for compelling reasons, might chill reporters in their duties to inform the public.
But he seems to understand the temptation. I asked him to consider the Susan McDougal case: Pretend you are Starr, I said, and that you have just won a conviction against her. You believe she has information crucial to your investigation. You've given her immunity from further prosecution, and now it is time for her to tell the grand jury what she knows. She talks to ABC's Diane Sawyer but refuses to answer your questions. ABC has not claimed that any part of the interview was confidential. You'd like to see the entire McDougal interview in case she has said something important.
Would Walsh subpoena ABC's outtakes? "I'd want to think about it," he said after a very long pause. "I don't think I would subpoena [them], but I'd want to think about it."
It seems clear that Starr is not as cautious. One can't help but wonder: Are there any other Justice Department guidelines or policies that Starr thinks shouldn't apply to independent counsels? Because much of his work is done in secret, we don't know how far he has extended -- or perhaps exceeded -- his authority.
Florence George Graves is a resident scholar at Brandeis University. This article has been adapted and updated from a longer version that appears in the April issue of American Journalism Review. Her research was supported in part by a grant from the Fund for Investigative Journalism.
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