June 16, 1998
Hon. Kenneth W. Starr
Office of the Independent Counsel
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Dear Judge Starr,
In the past three days, you have issued two press releases on the subject of leaks from your office. I think it is appropriate to respond to this public relations initiative.
David E. Kendall
In neither of these two press releases have you denied even a syllable of what the Steve Brill "Pressgate" article quotes you and your staff as saying. You accuse Mr. Brill of misinterpreting but not misquoting, and that's highly significant.
Your statements in the Brill article are at breathtaking variance with your previous public statements about your duties and actions. Your statements consistently have led the public to believe you would tolerate no leaks of any kind. On January 21, 1998, you stated at your public press conference, "I can't comment on the investigation as a matter of practice and of law. I just can't be making comments about the specific aspects of our investigation, including to confirm specific activity or not. . . . As an officer of the court, I just cannot breach confidentiality." At your public press conference on February 5, 1998, you stated in a CNN interview, "I'm not going to comment on the status of our negotiations [with Ms. Lewinsky's lawyers] . . . I hope you understand, especially when you ask a question about the status of someone who might be a witness, that goes to the heart of the grand jury process. . . . Those are obligations of law; they're obligations of ethics. . . . I am under a legal obligation not to talk about facts going before the grand jury." In your public February 6, 1998, letter to me, you stated that "leaks are utterly intolerable" (your words, not mine) and you went on to say "I have made the prohibition of leaks a principal priority of the Office. It is a firing offense, as well as one that leads to criminal prosecution." (Emphasis added).
What is so astonishing about your comments in the Brill article is that they contradict not simply our view but your own frequently and publicly expressed views both about the need to put a stop to leaking and your own protestations about your and your own staff's utter innocence in that regard.
Your press releases do not, however, address three simple points (there is much else that could be said, of course).
(1) If you need to talk to the press, why not do so on the record?
The Rule of the Department of Justice's Criminal Division promulgated by President Reagan's Assistant Attorney General in charge of the Criminal Division was: "Never talk off the record with the media. If you don't want your name associated with particular comments or remark, you shouldn't make them to media representatives." That's a good rule, because it makes everyone aware of who is making a particular statement, and it's especially important if what you're really trying to do is "engender public confidence" in your office. What possible justification do you have for secrecy? It's irresponsible and (under the circumstance) hypocritical.
(2) You are wrongly applying post-indictment standards of allowable prosecutorial comment.
Caught flat-footed by the Brill article, you've attempted to shift your ground by pointing to rules and opinions regarding post-indictment comment by prosecutors. As you well know, the standards are different after an indictment has been brought. At that point, the grand jury has found probable cause to make a criminal charge, the indictment has been openly announced, the defendant has significant procedural rights, including the right to have counsel appointed who will, among other thing be able to respond to prosecutorial comments. Prior to indictment, the rule is that grand jury secrecy, a protection designed for witnesses and persons investigated but never finally charged, mandates prosecutorial silence and the confidentiality of grand jury proceedings.
(3) The view of Rule 6(e) that you express in the Brill article and (now) in your press releases is demonstrably not the law.
You are now attempting to justify leaking by you and your Office by claiming that the information your office has covertly given to the media in not covered by Rule 6(e) because, in your own words as quoted by Mr. Brill, "it is definitely not grand jury information, if you are talking about what witnesses tell FBI agents or us before they testify before the grand jury or about related matters. . . . So, it I a not 6-E." (Emphasis in original.) Again, as you well know, this is not the law of the District of Columbia Circuit (or, for that matter, any other circuit). In the Dow Jones case decided by the United States Court of Appeals for the District of Columbia Circuit on May 5, 1998, that court summarized the secrecy rules legally applicable to grand jury investigations. Citing many cases of this Circuit and others decided over the years, the Court of Appeals emphasized that Rule 6(e) is to be given a broad meaning to encompass much more than simply what transpires within the four walls of the grand jury room. The coverage of the Rule "includes not only has occurred and what is occurring, but also what is likely to occur. Encompassed within the rule of secrecy are the 'identities of witnesses or jurors, the substance of testimony' as well as actual transcripts, 'the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'" (Emphasis added.) Your public statements in January and February accurately state the law, but your statements to Mr. Brill do not, and the actions of your Office are in violation of the law.
The media leaks by your Office also violate the ethics rules for federal prosecutors, see, e.g., DOJ Manual §§ 1-7.510; 1-7.530, which under the Independent Counsel Act you are obligated to comply with unless to do so would be "inconsistent with the purposes" of the Act. Complying with the DOJ's anti-leaking guidelines could hardly be "inconsistent" with the mission of your office.
David E. Kendall