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Starr Leaks Not Illegal, Appeals Court Rules

Independent Counsel Kenneth Starr
Independent Counsel Kenneth Starr. (The Post Ray Lustig)

From The Post
  • Starr Aide Resigns, May Face Prosecution (March 12)

  • Starr Tried to Limit Leak Probe, Keep It Secret (Jan. 7)
  • By Bill Miller
    Washington Post Staff Writer
    Tuesday, September 14, 1999; Page A8

    A federal appeals court ruled yesterday that independent counsel Kenneth W. Starr and his staff will not have to face contempt proceedings for allegedly leaking damaging information about President Clinton earlier this year, concluding that prosecutors did not illegally reveal grand jury secrets.

    The decision thwarts plans by Chief U.S. District Judge Norma Holloway Johnson to consider criminal and civil contempt sanctions against Starr and his aides over a Jan. 31 New York Times article. The story reported that Starr had concluded he had the constitutional authority to seek a criminal indictment against Clinton while the president was still in office on charges of perjury and obstruction of justice stemming from the Monica Lewinsky matter.

    A three-judge panel of the D.C. Circuit Court of Appeals unanimously found that Johnson had interpreted secrecy rules too strictly. Although the judges said the statements were "troubling," they said they were within the law.

    Throughout the Lewinsky saga, Clinton's attorneys have complained that Starr's office appeared to be leaking confidential material to embarrass and discredit the president. Johnson last year named a "special master" to review the issue, citing 24 news stories as possible violations of secrecy rules. All of the special master's proceedings remain under seal. The appellate ruling yesterday dealt only with the Times story.

    Still, it was a significant victory for Starr, who has said he has operated within federal rules in talking about his work.

    Starr issued a statement saying the court's ruling reinforces the importance of allowing prosecutors to provide public information about criminal investigations. "Today's decision rejects defense tactics of seeking to distract an investigation through accusations of illegal leaks," the statement said.

    Clinton's legal team did not back off, however. "We believe that the decision of the panel is inconsistent with the precedents of the Court of Appeals," said attorney David E. Kendall, adding that he will ask the entire appellate court to consider the issue.

    Even before incurring Johnson's wrath, the article had caused complications for Starr. At first his office said it was not the source of the story. But in March, Starr's spokesman, Charles G. Bakaly III, resigned after an internal investigation turned up evidence that despite his denials he was the source of the report. Starr asked the Justice Department to investigate. Johnson later appointed the Justice Department as prosecutors against Bakaly and Starr's office.

    But the Justice Department, finding no violation, joined with Starr in asking the appellate court to overrule Johnson and block her from conducting the proceedings.

    The case hinged upon Rule 6(e) of the rules of criminal procedure, which prohibits federal prosecutors or anyone working on a federal investigation from disclosing matters before a grand jury. Johnson found that Starr's office went too far in discussing the details of a potential indictment and the time frame and direction some Starr prosecutors wanted to take.

    The judges said nothing in the article touched upon matters that were occurring before the grand jury.

    "The disclosure that a group of [Office of Independent Counsel] prosecutors 'believe' that an indictment should be brought at the end of the impeachment proceedings does not . . . violate Rule 6(e)," the judges stated in their 23-page ruling.

    "We acknowledge, as did OIC, that such statements are troubling, for they have the potential to damage the reputation of innocent suspects. But bare statements that some assistant prosecutors in OIC wish to seek an indictment do not implicate the grand jury; the prosecutors may not even be basing their opinion on information presented to a grand jury," the judges said.

    Bakaly declined comment on the ruling yesterday.

    The decision was signed by Judges Patricia M. Wald, Laurence H. Silberman and Karen LeCraft Henderson. Wald was appointed to the court by President Jimmy Carter, Silberman was appointed by President Ronald Reagan, and Henderson by President George Bush.

    © 1999 The Washington Post Company

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