By Ruth Marcus
Independent counsel Kenneth W. Starr publicly defended himself yesterday against charges that he improperly revealed information about the Monica S. Lewinsky investigation to reporters, even as President Clinton's lawyer went to court seeking action against the prosecutor for what he considers illegal leaking.
In response to the latest furor, Chief U.S. District Judge Norma Holloway Johnson summoned lawyers for Clinton, the White House, Starr and Lewinsky to the federal courthouse for an unusual evening hearing to discuss the allegations.
The controversy was triggered by a Starr interview with Steven Brill for his new magazine, Brill's Content, in which the independent counsel confirmed that he and a deputy, Jackie M. Bennett, had spoken extensively with reporters about their probe. The Clinton camp seized on the statements as evidence that Starr had violated rules against disclosure of confidential information from grand jury investigations.
Citing the interview, David E. Kendall, the president's private attorney, filed a motion yesterday seeking to determine the status of a previous motion accusing Starr of illegal leaks and seeking sanctions, according to a source familiar with the proceedings. The short session that followed was called to schedule a status hearing for the matter, which Johnson set for the first week of July, but involved little discussion of the substance of the dispute, the source said.
Clinton ignored questions about Starr as he left a speech outside the White House yesterday. But press secretary Michael McCurry said, "The president concurs with those who say there are serious issues raised . . . about whether or not there have been violations of [federal rules] and they ought to be pursued independently by people who are in a position to get to the truth."
Starr said in a statement yesterday that the article "has created a serious misimpression" about his office. He said Brill "took a portion of an abstract discussion of the law out of context" and "incorrectly implied" that Starr believed it was acceptable to disclose information provided by witnesses so long as they have not yet testified before the grand jury.
Starr said his office "does not release (and never has released) information provided by witnesses during witness interviews, except as authorized by law."
He acknowledged that prosecutors had provided information about the circumstances of their first encounter with Lewinsky at a Virginia hotel in January but said they spoke only after Lewinsky's then-lawyer, William H. Ginsburg, accused Starr's office of essentially holding his client hostage until she talked.
"Our limited disclosure was entirely appropriate and dictated by Department of Justice policy to counter a serious, yet unfounded allegation of misconduct -- namely that Ms. Lewinsky was illegally detained and coerced during the interview," Starr said in the statement, his second prompted by the Brill article.
Starr found some backers yesterday among former prosecutors and legal ethics experts, who said they did not think Starr's conduct crossed legal or ethical lines -- although they agreed that he blundered in his public relations strategy.
The rules governing grand jury secrecy and otherwise constraining prosecutors from talking publicly about their cases do not prohibit any contact with reporters.
The basic criminal prohibition, known as Rule 6(e), bars prosecutors from disclosing "matters occurring before the grand jury." Other regulations prohibit prosecutors from making statements "that may reasonably be expected to influence the outcome of a pending or future trial" or that concern "evidence or argument in the case, whether or not it is anticipated that such evidence or argument will be used at trial."
"I don't think we have a smoking gun 6(e) violation in the account that this Brill story tells and I don't think we have something that even looks like a violation of Department of Justice policies or an ethics violation," said St. John's University law professor John Q. Barrett, who worked on the Iran-contra prosecution.
But Barrett added, "As a matter of taste and judgment, if Starr really has had Jackie Bennett on the phone with you guys on a full-time basis for the last five months, I don't think it's the way it should be done."
New York University law professor Stephen Gillers was also supportive of Starr. "I haven't seen any public statement by Starr's office that troubles me as a matter of legal ethics," he said. But he called Starr's decision to give Brill an interview "an error of judgment of the first magnitude," given Brill's desire to make news for his premier issue. "The fact is he could not win, because Brill's a better journalist than Starr is the subject of an interview and because the opposition forces were going to use any comment he made to raise the stakes and mount a campaign against him."
Prosecutors use an array of approaches in dealing with the press, from virtually no contact to providing fairly extensive guidance to prevent reporters, for example, from printing stories that are inaccurate.
Lawrence E. Walsh, who oversaw the Iran-contra investigation, set aside time on Thursdays to meet, mostly on a background basis, with various reporters, he recalled in an interview yesterday. "It was important because I was there so long and we were being criticized for spending money and the public did not know what we were doing and, frankly, the press was my only support," he said. He said he would discuss "the pattern of investigations in general terms."
Donald C. Smaltz, the independent counsel who is investigating former agriculture secretary Mike Espy, has his own World Wide Web site. He recently appeared on the PBS program "Frontline" to detail his complaints about the Justice Department's handling of the case.
On the other end of the spectrum, Carol Elder Bruce said in March when she was named to investigate Interior Secretary Bruce Babbitt that she did "not anticipate the need to make any further public comment" until the probe was completed.
Deputy Attorney General Eric H. Holder Jr. detailed prosecutors' reasons for talking to the press in a 1995 article, saying that "the public has a right to be kept reasonably informed" in high-profile cases. "This point has become particularly pertinent in recent years," he said, "because powerful figures increasingly seem to characterize criminal investigations of their alleged illegal conduct as 'political witch hunts.' "
Staff researcher Nathan Abse contributed to this report.
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