District Mayor Marion Barry has filed a lawsuit accusing the Justice Department and U.S. Attorney Joseph E. diGenova of "a pattern and practice of prosecutorial abuse" by allegedly leaking to the news media details of a federal probe of possible corruption in D.C. government.
Filed at 11 p.m. Friday, the lawsuit seeks a court order barring "further disclosure" of confidential information about a continuing grand jury investigation into allegedly improper city contract awards and alleged payments to convicted drug dealer Karen K. Johnson. Otherwise, the suit says, prosecutors should be ordered to make public all the information they have obtained.
Also, Barry asked for a hearing to determine if sanctions should be imposed against federal employes who Barry alleges have violated rules prohibiting release of grand jury information.
The unusual lawsuit, filed in U.S. District Court here, contends that diGenova's office, through public statements and strategic disclosures about the current probe as well as earlier investigations dating to 1984, has engaged in a "concerted effort . . . to create a public climate of vast criminal and improper conduct" by the mayor and other city officials.
A spokesman for diGenova declined yesterday to discuss any details regarding the suit. "We will respond in papers we will file in court," the spokesman said.
The lawsuit contends that federal officials acted "not with the design and goal of legitimate prosecution of crime but for the purpose and design to punish and impede the mayor" in doing his job.
A court hearing is necessary "to penetrate the stone-walling between the prosecutor and the press," said the mayor's legal counsel, Herbert O. Reid Sr., in a statement released yesterday. "The prosecutor says 'no one on my staff gave the information,' and the press refuses to identify its source, so that grand jury leaking goes on and on unchecked. This court can and should put a halt to this charade."
In a legal memorandum accompanying the lawsuit, Reid asserts that "illegal and highly unprofessional leaks" about the grand jury investigation "have paralyzed the operations" of city government.
Barry said in an affidavit, "District employees are fearful of engaging in all manner of contracts and procurement activity, regardless of the propriety of their actions and especially where minority contractors are involved. In addition, the confidence of the public, and of the financial and commercial communities, in this government has been shaken."
Reid said in a telephone interview yesterday that Barry decided to take the drastic step of filing suit because "we're getting slaughtered" by leaks. "Leaks can kill you," Reid said. "I think there's more danger to public trust and confidence from leaks and stories than from an indictment. You can face an indictment."
The leaks, he said, have occurred "over a period of four or five years . . . . We've been to the attorney general on two occasions to complain. We complained to the judiciary committees of the Senate and the House. The magnitude of this and the frequency . . . seemed to necessitate judicial intervention."
Reid said the case will be assigned to a judge tomorrow and that he will seek an early hearing date. He said he did not expect the U.S. attorney's office to make all its information public and said he did not know of a precedent for a public official filing such a lawsuit.
The lawsuit names Attorney General Edwin Meese III, as the head of the Justice Department; diGenova, and their employes, including FBI and Drug Enforcement Administration agents. It claims prosecutorial vindictiveness, prosecutorial misconduct, wrongful interference with occupation, and intent to cause irreparable harm.
It asserts that The Washington Post, The Washington Times, The New York Times and other news "There's more danger to public trust and confidence from leaks and stories than from an indictment."
-- Herbert O. Reid Sr.
media have repeatedly reported information that could only have come from federal prosecutors or investigators.
It cited, for example, a broadcast Thursday by Channel 9 (WUSA) detailing Karen Johnson's discussions with prosecutors about "hush money" she allegedly received and cocaine she allegedly sold to the mayor, who has acknowledged having had a "personal relationship" with Johnson. The televised report showed invoices from Johnson's legal bills and excerpts from documents described as her "secret papers."
"It is plaintiff's belief that those items are among those materials seized by FBI agents during a May 22, 1987, search" of Johnson's house, the lawsuit says. In addition, it says, the information contained in the broadcast "could only have come from federal prosecutors, investigators, members of their respective staffs or those under their span of control."
DiGenova, in an unusal response regarding a continuing investigation, said Thursday that those documents and other material had not been seized in the FBI search and said he had "no knowledge of the source of the information reported" by WUSA.
Barry and diGenova have been feuding for years over diGenova's aggressive attitude toward investigating the District government. DiGenova has said the city government is riddled with "massive corruption." Barry has accused diGenova of leaking information to the media and has likened an earlier diGenova probe to the lynching of blacks and the "witch hunts" of McCarthyism.
Barry included as exhibits in his lawsuit photocopies of a number of news stories that he said were based on improper leaks, most from The Post, as well as a transcript of the Thursday report by WUSA.
Among them were articles reporting that the investigation was conducted through a "sting" operation involving a firm that included an undercover FBI agent as a partner, and that investigators had uncovered evidence that David E. Rivers, secretary of the District of Columbia, allegedly received boots and other benefits in return for steering contracts to the firm.
Another Post article cited was one reporting that John B. Clyburn, a city contractor, allegedly acted as a middleman and received a subcontract in exchange for his help in obtaining contracts for B&C Management Consultants Inc., the firm set up in conjunction with the agent. Still another cited reports that Johnson was cooperating with federal investigators.
The lawsuit cited a 1984 article published in The New York Times reporting that a federal grand jury was investigating whether Barry committed perjury when he told the grand jury that he did not obtain cocaine from Johnson.
An article published in The Washington Times and cited in Barry's lawsuit described records seized from Johnson's house during the May 22 search.