Of Starr Team Over Leaks
By Peter Baker
In a June 19 ruling unsealed yesterday, Chief U.S. District Judge Norma Holloway Johnson cited specific reports that appeared to come from Starr's office and said she was not persuaded by the independent counsel that his staff was not the source.
"The Court finds that the serious and repetitive nature of disclosures to the media of [grand jury] material strongly militates in favor of conducting a show-cause hearing," she wrote in ordering Starr to prove he had not broken rules barring prosecutors from revealing grand jury information.
An appeals court ruled this week that Johnson can proceed with her investigation into the matter but it restricted the ability of President Clinton's lawyers to participate, warning that the dispute could become "an unnecessary detraction from the main business of the grand jury's investigation."
While Johnson's order did not make a final determination that Starr improperly leaked, it represented a stinging rebuke from a judge who generally has sided with prosecutors through their investigation of the president. Johnson chided Starr for interpreting secrecy restrictions too narrowly and called a comment he made to a television crew about a sealed ruling "a violation of a court order not to discuss the ruling."
Starr yesterday again denied providing reporters with grand jury information and pointed to witnesses and their lawyers as possible sources for news reports. "This office has not violated [secrecy rules] and we welcome the opportunity to demonstrate that fact to the District Court," Starr said.
Johnson's ruling was among a thick stack of court documents made public yesterday that provide the first glimpse of a furious, months-long legal battle waged by Clinton's attorneys to prove that Starr had overstepped his bounds. In pressing the leak allegations, the president's camp hopes to undermine Starr's investigation into whether Clinton committed perjury or obstruction of justice during the Paula Jones lawsuit by covering up an affair with Lewinsky.
If nothing else, the unsealed papers reveal how much time and energy has been expended fighting about leaks. At one point, Clinton's attorneys even subpoenaed Starr himself to appear at their office to testify July 13 and "from day to day thereafter until completed," an order blocked by the appeals court.
Clinton advisers gleefully seized on the documents yesterday, calling Starr the first independent counsel investigated by a court for possible criminal wrongdoing in the course of his investigation. "The endemic and casual disclosures of grand jury information which have characterized the past seven months of the OIC's investigation are highly unprofessional and utterly indefensible," said Clinton attorney David E. Kendall.
To order a show-cause hearing, Johnson needed only to establish that there was prima facie evidence of violations, a minimal legal burden requiring Clinton's attorneys merely to submit news accounts that discussed grand jury activities and attributed them to sources appearing to be government attorneys or officials. Johnson cited five accounts by the New York Times, New York Daily News, NBC News, CBS News and Fox News that met that standard.
The Fox report was a May 6 broadcast in which Starr called Johnson's sealed decision rejecting Clinton's claim of executive privilege in the Lewinsky case "a magnificent ruling." While the media had already reported the decision, Johnson said that was no excuse. "Confirming the existence and substance of a sealed court ruling presents a prima facie violation of [secrecy rules] and a violation of a court order not to discuss the ruling," she wrote.
Johnson said she was troubled by Starr's interview with Steven Brill in the inaugural issue of Brill's Content magazine, in which Starr was quoted saying he and his deputy had briefed reporters on the condition they not be identified. Starr took issue with Brill's account, saying the information did not directly relate to the grand jury, but Johnson said secrecy rules still applied.
To rebut leak allegations, Starr collected mostly identical affidavits from 98 investigators, prosecutors and others working for him denying that they "knowingly disclosed" information cited in Kendall's complaint. However, Johnson said those were not persuasive because of the different interpretations of what is covered by secrecy rules.
Starr successfully appealed Johnson's plans to allow Clinton's attorneys to question him and his staff during the leak investigation. The U.S. Court of Appeals for the D.C. Circuit said that would allow the possible targets of a grand jury investigation too much information about the case being built against them.
The appeals court directed Johnson to hear the matter privately in chambers with Starr, allowing the president's attorneys to play a role only after she determines whether there were illegal leaks. Under court rules, the burden of proof falls to Starr to rebut the allegations. If he cannot, he could be subject to contempt sanctions.
On Capitol Hill, Democrats on the House Judiciary Committee began preparing for possible impeachment proceedings by hiring three attorneys, including former ethics committee lawyer Abbe Lowell, who will serve as chief investigative counsel.
Lowell, managing partner of the Washington firm Brand, Lowell & Ryan, worked as an outside counsel to the House Committee on Standards of Official Conduct after former representative George Hansen (R-Idaho) was convicted of filing a false financial disclosure report. He has defended former representatives Joe McDade (R-Penn.), Dan Rostenkowski (D-Ill.) and Harold Ford Sr. (D-Tenn.). In addition, two law professors, Lis Wiehl from the University of Washington and Deborah Rhode from Stanford University, will work for the panel.
"Nobody knows if there will be a need for any proceedings in the House, and we hope not," Lowell said yesterday. "But we have been asked by the Democratic leadership . . . to be ready for anything and we will be."
Separately, Sen. Frank H. Murkowski (R-Alaska), chairman of the Energy and Natural Resources Committee, asked Clinton to postpone swearing in U.N. Ambassador Bill Richardson as energy secretary. Murkowski said he wanted to look into a Washington Times report suggesting Richardson did not have a job open when he agreed to hire Lewinsky at the request of the White House last fall, contrary to assertions during confirmation hearings.
Staff writers Susan Schmidt, Juliet Eilperin, Bill Miller and Guy Gugliotta contributed to this report.
© Copyright 1998 The Washington Post Company