Ken Starr
June 16, 1998
Editor
Brill's Content
521 Fifth Avenue, 11th Floor
New York, NY 10175
Dear Sir:
Your reputation suffers grave damage with the publication of "Pressgate" in your inaugural issue. Your reporting rests on a fundamental misunderstanding of the law and a misrepresentation of the facts – errors that I will detail at length below.
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Ken Starr |
First, and most important, you mistakenly took – completely out of context – a statement by me relating to the law governing the scope of confidentiality obligations imposed by Federal Rule of Criminal Procedure 6(e) and assumed it has been my practice, or the practice of others in my Office, to release to media the contents of statements made by witnesses outside of the grand jury. You are mistaken. Let me repeat categorically: The OIC does not release grand jury material directly or indirectly, on the record or off the record; the OIC does not violate Department of Justice policy or applicable ethical guidelines; and the OIC does not and has not released information provided by witnesses during witness interviews, except as authorized by law.
Second, this Office is authorized to disclose publicly information about a variety of legal and policy issues that confront the Office. The following topics are just some of the issues about which we not only can – but should – disclose information to the media for public consumption.
When appropriate, representatives of this Office discuss the anticipated time frame of a particular aspect of our investigation; we discuss issues related to staffing and expenditures; we disclose the basis of our jurisdiction over particular issues. We also discuss various elements of the independent counsel statute that impose requirements and restrictions on the Office in general and on the independent counsel in particular.
To the extent the matters are not under seal, we can and should explain the legal positions the Office takes, particularly when those issues become the subject of public debate. For example, our legal views with respect to the law of certain privileges, the law of civil contempt, the law of conspiracy, perjury, obstruction of justice, and witness intimidation are all proper topics for discussion with reporters. We should discuss the causes of delay in our investigation. We should correct public misinformation about the legal views, strategy, and tactics of this Office to the extent we can without interfering with the investigation or violating Rule 6(e) – lest the public, courts, witnesses, and jurors receive misimpressions about the integrity of the Office. Our dealings with other public and government agencies are proper topics of discussion with reporters. We should ensure that the media are informed of standard prosecutorial policy and practice when we are asked about issues such as immunity, plea bargains, and target letters and the like. And of course, we can discuss with the media our policy with respect to dealing with the media.
In discussing such issues, we are following the historic traditions of the Justice Department. The idea that we (and all federal prosecutors) should never talk to reporters about any of these issues – a suggestion that is at least implicit in your article – is wrong and, if followed, would be a disservice to the public that is entitled to know what its government is doing with its money, authority, and resources.
What we must avoid, and what we do avoid, is discussion of information sought from or provided by witnesses – whether in the form of investigative interviews, grand jury appearances, or documents provided to this Office. We have not disclosed this information to the media, and your claim that I have admitted doing so is false.
With that introduction, allow me to respond with particularity to some of the more egregious factual errors in your article, before trying to correct your mistaken understanding of the law, Department of Justice policy, and applicable ethical obligations.
Errors in the Article
It is now apparent that many of the individuals interviewed for your article dispute the accuracy of your account. I cite four examples (in each instance I quote the passage of your article):
1) [Susan] Schmidt recalls that the previous Friday [January 16] she had "heard from sources in Starr's office something about Vernon Jordan and coaching a witness."
"Pressgate" at 129-30. This passage has been refuted by Ms. Schmidt. I quote from her letter to you:
I never said [what is attributed to me] and it is false. Anyone who knows me knows that I would never discuss my sources with anyone other than my editors. I did not receive that information from anyone in Starr's office. . . . . By claiming I have disclosed my sources to you, you have defamed me and damaged my reputation. I demand an immediate and public correction of this false assertion by you.
Letter from Susan Schmidt (Washington Post) to Steven Brill (June 15, 1998) (emphasis supplied).
2) [On January 26] David Bloom [of NBC News). . . puts more pressure on Lewinsky and Ginsburg. "[S]ources also caution that if no deal is struck tonight, [Lewinsky] could be hauled before a . . . grand jury . . . as early as tomorrow."
"Pressgate" at 142 (ellipsis and brackets in original). In January and February 1998 no member of this Office spoke with Mr. Bloom, Therefore, we could not have been the source of his story. Mr. Bloom himself characterizes your piece as "complete and total hogwash." Washington Post (June 16, 1998, at A8); cf. Id. (Michael Isikoff, of Newsweek, describing your article as "utterly garbage," "fundamentally dishonest" and "slimy").
3) You discuss a Time magazine story that appeared on February 8, 1998, which recounts various leaks to the media. You criticize the article because it does not "confront the basic question the article raises: Aren't Starr's people leaking?" "Pressgate" at 149. You then appear to answer your own question by quoting Time's managing editor; "We can't ask Starr or Bennett if they have leaked to this or that reporter, because we are out there getting those leaks ourselves from them."
First, assuming that you quoted the Time editor correctly, he was obviously unaware that at virtually the same time the article in question appeared, a reporter from the magazine was writing to the office of the Independent Counsel expressing concern that there was no information coming from the OIC. In a letter dated February 11, 1996, a Time reporter asks to "open lines of communications" with the OIC. He proposes establishing an "off the record relationship," and notes that "[L]ast week, we went pretty far to cast doubt on the charges of Starr leaks. . . . . And that was without your input. In the coming days, the need for your perspective will intensify. . . . I'd appreciate a call just to touch base." Letter to Jackie M. Bennett, Jr. (Feb. 11, 1998).
Second, the Time editor, Walter Isaacson, challenges your recollection, saying his words were "mischaracterized." "I was not talking about people who were leaking specific things to us. . . . I don't know if [Brill] misunderstood [my words] or was twisting them." Washington Post (June 16, 1998, at A8).
These facts are directly inconsistent with your allegation that Time was receiving information from the OIC. Whether the words were misunderstood or twisted, there is serious doubt as to the accuracy of the Time editor's statement, the accuracy of your quote, or both. The fact is that this Office did not disclose any information to Time.
4) According to the Justice Department source, . . . Starr deputy Bennett . . . failed to mention what he knew from the earlier Tripp tapes – that Jordan had begun offering that help at least a month before Lewinsky was subpoenaed in the Jones case . . . . Bennett does confirm that he mentioned repeatedly that Newsweek was working on an article. . . . [A] Justice Department participant [says,] "it also was clear to us that if we turned down the request, Newsweek would know about that too. We had no choice."
"Pressgate" at 127. This charge, relating to our Office's initial contact with the Department of Justice, is without foundation.
Your allegation rests on the mistaken factual premise that members of this Office listened to Mrs. Tripp's own tapes of her conversations with Ms. Lewinsky prior to our meeting with the Department regarding this matter. No member of this Office had an opportunity to listen to Mrs. Tripp's own tapes of her conversations with Ms. Lewinsky that first evening. Indeed, we had not had an opportunity to do so when we briefed the Department of Justice on Thursday, January 15th. Thus, your allegation that we concealed evidence from the Department is flatly wrong.
Similarly, we mentioned to Justice officials the pending Newsweek article to explain why quick action was necessary. No member of this Office ever said or implied that we would disclose the Department's jurisdictional decision to Newsweek, and for your anonymous Justice source to make that allegation is simply a conclusion unsupported by any evidence.
Most significantly, your account is denied by the other party to the discussion – the Department of Justice. According to the New York Times:
Senior Justice Department officials also disputed one element of the [Brill] article, that Mr. Starr had maneuvered Ms. Reno into expanding his jurisdiction to investigate whether Mr. Clinton lied about having had an affair with Ms. Lewinsky and then encouraged Ms. Lewinsky to lie about it. The officials said that it was abundantly clear that the matter had to be investigated by Mr. Starr.
New York Times (June 15, 1998, at A16).
Beyond the factual errors already noted by others, there are a number of other errors in your article that we can establish from our own experience:
5) Consider, first, an article you deem a "clear" violation of Department policy; the Washington Post article by Susan Schmidt on January 24, 1998. By removing that article from the context of the then-existing situation, you skew the conclusion in the very manner you attribute to other reporters.
The Post reported:
Sources close to Starr, however, described a far different episode that dragged on mainly because Lewinsky insisted her mother be present. Although investigators did pressure her to cooperate, sources said, the onetime White House intern spent much of the time waiting for her mother to arrive on the train from New York, watching movies with them in a hotel room and shopping at Crate & Barrel with investigators.
Washington Post (Jan. 24, 1998, at A1).
As an initial matter, it is obvious that nothing here implicates Rule 6(e) or Department policy. This article was published in the midst of William Ginsburg's energetic media assault on this Office. In a CNN interview the evening before, Mr. Ginsburg discussed the OIC's meeting with Ms. Lewinsky in highly inaccurate (almost sinister) terms. His statements included the following:
She went over there, and she was immediately surrounded.
[S]he did not get the privilege of calling counsel until late in the evening.
It's safe to say that I'm upset – angry and upset, yes. I think that's as close as you can get to a constitutional breach.
Squeezing, threatening, that's their job. . . .
CNN Today (Jan. 23, 1998).
In the face of Mr. Ginsburg's misrepresentations, the OIC issued a news release clarifying the conditions of our discussions on the night of January 16 and explaining the true circumstances of the OIC's interaction with Ms. Lewinsky:
Ms. Lewinsky was asked to cooperate with the investigation. She telephoned her mother, Marcia Lewis, who took a train from New York City to confer with her daughter. During the five hours while awaiting her mother's arrival, Ms. Lewinsky drank juice and coffee, ate dinner at a restaurant, strolled around the Pentagon City mall, and watched television. She was repeatedly informed that she was free to leave, and she did leave several times to make calls from pay telephones. After her mother arrived, discussions resumed with agents and attorneys. Ms. Lewinsky, after talking with another family member by phone, chose to retain William Ginsburg, a longtime family friend who specializes in medical malpractice law in Southern California. As they left the Ritz Carlton, both Ms. Lewinsky and Ms. Lewis thanked the FBI agents and attorneys for their courtesy. Recent media statements by one of her attorneys alleging that she was mistreated are wholly erroneous.
OIC News Release (Jan. 23, 1998). The OIC supplemented the news release by talking with a reporter for the Washington Post. We acted solely to respond to Mr. Ginsburg's public statements, which if unrebutted were likely to discourage witnesses from coming forward. We did not release any grand jury material or factual information provided by a witness, For you to characterize as a "leak" material that was a part of a public press release is simply wrong.
Starr's lawyers and FBI agents told Tripp that they needed more than was on her tapes to prove both the president's alleged effort to get Lewinsky to lie and . . . Vernon Jordan's supposed obstruction of justice. . . . [T]hey were also going to try to get Lewinsky to wire herself and get Jordan and maybe even the president on tape obstructing justice.
"Pressgate" at 127.
This is false. This Office never asked Ms. Lewinsky to agree to wire herself for a conversation with Mr. Jordan or the President. You cite no source at all; nor could you, as we had no such plans.
"They leak and I patch," Ginsburg asserts later. . . . This report [of a witness to an intimate encounter] surfaces at the time that Starr's people are putting the most pressure on Ginsburg and his client "With leaks like that, they were just trying to scare me into thinking they had a smoking gun and didn't need Monica," Ginsburg asserts later.
"Pressgate" at 136, 140 (emphasis deleted). This Office believed (and continues to believe) that responding to Mr. Ginsburg's outrageous public assertions was warranted. Remarkably, however, you appear to accept, without a scintilla of evidence, Mr. Ginsburg's assertion that this Office deliberately leaked information for the purpose of pressuring Ms. Lewinsky. We are not the source of this story. Moreover, nothing in the story by Jackie Judd which you cite comes close to attributing the information to the OIC. Indeed, the story (whose validity we can neither confirm nor deny) could have come from the Secret Service, the Department of Justice, Mr. Ginsburg himself, or the White House. Your own reporting demonstrates that the very next day a strikingly similar story (of an alleged Secret Service witness to an intimate encounter) broke from sources outside the OIC; yet you leap to the conclusion that this story must have come from the OIC.
8) Murray, . . . refuses comment on whether Starr's office was the source of the [Bayani Nelvis] story [in the Wall Street Journal] except to say, "I can promise you we had sources outside of Starr's office."
"Pressgate" at 146. This passage reveals the incompleteness of your reporting and ignores the fact that there are always multiple sources of information. Moreover, the OIC was not the source for this story, as the facts demonstrate.
The Journal reported: "A longtime White House steward told a federal grand jury that he saw President Clinton and Monica Lewinsky alone together in a study adjacent to the Oval Office, according to two individuals familiar with his testimony."
This story appeared in an online "interactive edition" of the Wall Street Journal on the afternoon of February 4, 1998, Attorney Joseph Small, who represents steward Bayani Nelvis, immediately called the story "absolutely false and irresponsible." The Journal retracted the story on-line that day, By the next morning, the Journal had clarified the story to say that "[a]ccording to two individuals familiar with the matter, Mr. Nelvis approached Secret Service personnel and described having seen Mr. Clinton with Ms. Lewinsky in the study." Wall Street Journal (Feb. 5, 1998, at A24).
The corrections made by the Journal show that the information originally received by the newspaper did not concern matters occurring before the grand jury and did not emanate from the OIC. The source of information about Mr. Nelvis's supposed grand jury testimony was reported to be "two individuals familiar with his testimony." The Journal, however, quickly changed the story to say that Mr. Nelvis had made the disputed statement not to the grand jury, but to Secret Service personnel. By the paper's own admission, the initial report concerning grand jury testimony was erroneous, and many individuals had access to the information. It is evident, therefore, that this "leak" was not even about grand jury testimony, and that the source was not the OIC.
9) You assert that another of the episodes on which you report – the New York Times report on Betty Currie – "seems to be yet another [story] relying on prosecutorial leaks." "Pressgate" at 147. On February 6, 1998, the New York Times reported information that Betty Currie allegedly "told investigators." The article specifically stated that what Ms. Currie said before the grand jury "remains a secret." Id. Nonetheless, White House political adviser Paul Begala appeared on television the same morning to denounce the Times story as "one bit of unethical and very improper illegal activity, perhaps, and that is the leaking of grand jury material." NBC Today (Feb. 6, 1998).
This New York Times article from February 6, 1998, served as the catalyst for orchestrated attacks on the OIC by President Clinton's attorneys and representatives. On examination, however, it is clear that the article does not reveal matters occurring before the grand jury; nor did the information it contains come from the OIC.
The Times article reports on information that Betty Currie "told investigators." The article specifically stated, however, that what Ms. Currie said in her appearance before, the grand jury "remains a secret" and the OIC is, to that extent, expressly exonerated by the article.
Moreover, it does not follow from the report's reference to what Ms. Currie "told investigators" that the story is referring to what she told investigators for the OIC. We note that on February 14, 1998, the New York Times (in a story written by one of the same reporters) reported what Neysa DeMann Erbland "told investigators" about Monica Lewinsky. But Ms. Erbland never was interviewed by investigators working for the OIC prior to her grand jury appearance. And the Times story said "[i]t could not be determined what Ms. Erbland told the grand jury." It is therefore apparent that when the Times refers to what a witness "told investigators," it may well have been referring to "investigators" who are in no way affiliated with the OIC. Viewed in this light, there is no basis for concluding that the February 6 article even purports to describe what Ms. Currie told OIC investigators, much less the grand jury.
Although President Clinton's attorneys and representatives were quick to accuse the OIC of "leaking" information contained in this article, there were numerous potential sources for the information outside the OIC. If the story is true, of course, Ms. Currie and her attorneys had all of the reported information. Moreover, Lawrence Wechsler, Ms. Currie's attorney, specifically advised this Office that he had informed President Clinton's attorneys and other attorneys not affiliated with the OIC of substantially all the information contained in the Times account. Once the information was conveyed to the President's personal attorneys and the White House, the information could easily have been disclosed to other parties.
Thus, there is no basis that I can see for your rejecting our categorical on-the-record assertions that neither I nor Mr. Bennett was the source of the Times article. Nor did we provide confirmation to the Times of the story's accuracy.
More than these factual errors, I also believe that you have substituted inference and assumption for factual reporting in a number of instances:
10) Tripp had been released by Starr's investigators so that she could go home. . . . Starr would later tell me that he did not know why she was released from her extensive debriefing at that particular time.
Thus, the president's criminal inquisitors, having just finished with Tripp, had now made it possible for his civil case opponents to be given ammunition with which to question the president in his sworn testimony.
"Pressgate" at 128.
This remarkable passage implies that we should have held Mrs. Tripp against her will and prevented her from going home at the end of a long day. You imply as well that this Office knew of Mrs. Tripp's intention to meet with Paula Jones's attorneys that evening. For this you offer no factual support. Nor could you, as there is none. At the time she left (and indeed for many days thereafter) we were unaware of any contacts between Mrs. Tripp and the Jones attorneys.
11) Citing "sources" who could only be people in Starr's office, the [Washington Post] article's fifth paragraph said that Lewinsky can be heard on Tripp's tapes describing "Clinton and Jordan directing her to testify falsely."
"Pressgate" at 130. You argue that the information alluded to must either have been on a new tape of conversations between Ms. Lewinsky and Mrs. Tripp, or it reflected the OIC's "spin" on the tapes Mrs. Tripp's attorney had already played for Newsweek. You conclude, therefore, that this necessarily implicates the OIC as the source of the Washington Post story. Your reasoning and conclusions are once again flawed. The simple fact is that the OIC is not the source of this story.
There are at least two potential sources of this information – the conversations Mrs. Tripp had with Ms. Lewinsky before she came to the OIC, and the conversation the FBI recorded between Ms. Lewinsky and Mrs. Tripp on January 13th. Many people other than the OIC had knowledge of the contents of both of those sources of information.
First, as you report, we informed the Department of Justice of the content and substance of the January 13 conversation between Mrs. Tripp and Ms. Lewinsky, which was contained in the recording made by the OIC as part of our discussion relating to jurisdiction. Indeed, we played portions of the January 13, FBI-recorded tape for Department officials. We have no idea how far afield the information traveled within the Department – but a more careful reporter would have inquired, rather than assuming his conclusion. And, of course, Mrs. Tripp and Ms. Lewinsky were parties to that conversation as well – so any number of people could have been the source of this story.
Moreover, what you describe as OIC's "spin" on what Ms. Lewinsky said could readily have come from Mrs. Tripp, Mrs. Goldberg, Mrs. Tripp's attorney, or any other individual she confided in. Indeed, according to "Larry King Live" (June 15, 1998) it appears that there are copies of Mrs. Tripp's own tapes in other hands. You assume that the tapes played for Newsweek were not as "strong" as the Post report characterizes them. But the Post could simply have been told of that characterization by a party to the conversation, or heard a different tape. 1
12) What's most curious about Tripp's [press] statement is that witnesses who are cooperating with prosecutors are routinely forbidden from making any public statements. . . . "She made her own decision," Starr later contends..
"Pressgate" at 145. Here again you substitute innuendo for fact. You assume, wrongly, that I approved of or induced Mrs. Tripp to make a public statement, or that I was derelict in preventing her from doing so. Mrs. Tripp's statements are her own; we cannot preclude her from speaking out if she wishes to do so. We, as many prosecutors do, often advise against such a course. And Mrs. Tripp, as many witnesses do, has rejected our advice. We are sure that other prosecutors will tell you this is not an uncommon experience.
13) Your article also implies that Mr. Bennett was untruthful when he said that he had been quoted on-the-record on occasion. "Pressgate" at 132. Your selection of the parameters of your NEXIS search was apparently intended to prove your point. Even a cursory search should have yielded at least four occasions, AAP Newsfeed (Feb. 2, 1998); New York Times Feb. 23, 1998, at A12); Washington Times (March 6, 1998, at Al); Arizona Republic (March 10, 1998, at A21), reflecting early, on-the-record efforts by Mr. Bennett to rebut misinformation directed at the personal lives of career prosecutors working in this Office.
14) You ask "why, if all of this is proper, Starr or [Bennett] has not been quoted by name on the record, countering all this misinformation," – implying that the conduct is therefore improper. "Pressgate" at 132. One might, of course ask the converse question – whether contacts properly made on the record somehow become improper because they are made on background. I suspect you can offer no good answer to that question, since none exists.
More significantly, as I discussed at length above, your question ignores the value of background discussions to the American public. There is, fundamentally, a great deal of difference between releasing information on background for the purpose of creating the impression that the target of an investigation is guilty (which this Office does not do) and speaking on background to correct misinformation and prevent incomplete and inaccurate stories from being printed.
The Law
Let me now focus on the law, since I believe you mischaracterized it. I am astounded that you would say, as you did on "Face the Nation," that my understanding of the law is "flatly contradicted" by the courts when your own construction of the law is so plainly misguided.
Rule 6(e) – Rule 6(e) prevents disclosure of a discrete category of information: "matters occurring before the grand jury." The D.C. Circuit has said that "the touchstone is whether disclosure would tend to reveal some secret aspect of the grand jury's investigation such . . . as the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like." Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987) (internal quotation marks and citation omitted).2 Disclosures which "expressly identify when an indictment would be presented to the grand jury, the nature of the crimes which would be charged, and the number of persons who would be charged run afoul of the secrecy requirements codified in Rule 6(e)." In re Grand Jury Investigation (Lance), 610 F.2d 202, 218 (5th Cir. 1980) (cited in Barry v. United States, 865 F.2d 1317 (D.C. Cir. 1987)).
Contrary to the view you adopted (which, as you said on "Face the Nation" (June 14, 1998), is derived from your discussions with President Clinton's counsel, Mr. Kendall), Rule 6(e) does not encompass all facts that can somehow be associated with a grand jury investigation, "The disclosure of information coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury is not prohibited." Senate of Puerto Rico, 623 F.2d at 582 (internal quotation and citation omitted). The courts "have never embraced a reading of [the Rule] so literal as to draw a veil of secrecy . . . over all matters occurring in the world that happen to be investigated by a grand jury." Id. (internal quotation and citation omitted).3
Department Policy – We believe that policy and ethical restrictions on our contact with the media are broader than Rule 6(e). But your assertion that background discussions with the media "violate [] Justice Department prosecutorial guidelines" is without merit. That policy provides that: "At no time shall any component or personnel of the Department of Justice furnish any statement or information that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding." United States Attorneys' Manual ("USAM") § 1-7.500. This Office has in no circumstance violated this restriction.
Department of Justice policy also recognizes that in contacts with the media by prosecutors, "three principal interests . . . must be balanced: the right of the public to know; an individual's right to a fair trial; and the government's ability to effectively enforce the administration of justice." USAM § 1-7.110. In balancing these interests "careful weight must be given in each case to the constitutional requirements of a free press and public trials as well as the right of the people in a constitutional democracy to have access to information about the conduct of law enforcement officers, prosecutors and courts, consistent with the individual rights of the accused. . . . These principles must be evaluated in each case and must involve a fair degree of discretion and the exercise of sound judgment, as every possibility cannot be predicted and covered by a written policy statement." USAM § 1-7.112.
As explained above, Departmental policy approves of the principle that certain communications with the press not only are permitted, but are part and parcel of the duties of a prosecutor. The Office of Independent Counsel is a public office, It carries with it obligations to the American people, operating under the ultimate oversight of the Attorney General, and through her the President. We can state our obligation no better than did Deputy Attorney General (then-United States Attorney) Eric H. Holder, Jr.:
[I]n cases involving well-known people, the public has a right to be kept reasonably informed about what steps are being taken to pursue allegations of wrongdoing so that they can determine whether prosecutors are applying the law equally to all citizens. This point has become particularly pertinent in recent years because powerful figures increasingly seem to characterize criminal investigations of their alleged illegal conduct as "political witch hunts." This type of epithet only serves to unfairly impugn the motives of prosecutors and to undermine our legal system, and should not go unanswered.
Ironically, although public figures who are under investigation often claim that they are being unfairly singled out, many other citizens in our cynical era have come to automatically assume that prosecutors provide preferential treatment to those in power. Such misperceptions have a corrosive effect on our system of justice, and the only effective means by which prosecutors may dispel them is through the dissemination of timely and accurate information. Thus, media attention in high profile white collar crime provides prosecutors with the opportunity to assure the public of both the firmness and the fairness of the criminal judicial system.
Holder and Ohlson, Dealing with the Media in High-Profile White Collar Crime Cases: The Prosecutor's Dilemma, in White Collar Crime, at B-1 to B-2 (1995).
Mr. Holder does not stand alone. The Watergate Special Prosecutor shared this view:
[Archibald] Cox was mindful of the national concern over Watergate and of the public's right to be kept as fully informed as possible about the work of his office. "The public deserves as much accurate information as is consistent with the sometimes severe constraints placed on prosecutors as officers of the court," he said when he announced the establishment of the Public Affairs Office.
Watergate Special Prosecution Task Force, Report 227 (1975). This is also the view of former Independent Counsel Lawrence Walsh, who met frequently with reporters during the Iran-contra investigation.
"When you are conducting a long-running investigation, you have to find a way to keep people informed."
USA Today (June 15, 1998, at 10A); see also Washington Post (June 16, 1996, at A8) (reporting that Mr. Walsh met weekly for background discussions with the media).
Our actions were therefore fully consistent with Department policy. "In matters that have already received substantial publicity, or about which the community needs to be reassured that the appropriate law enforcement agency is investigating the incident, or where release of information is necessary to protect the public interest, safety, or welfare, comments about or confirmation of an ongoing investigation may need to be made." USAM § 1-7.530(B).
Ethics – You also seem to believe that we have violated applicable ethical prohibitions. Once again, you are mistaken. To the contrary, the ethical rules expressly permit certain disclosures of information – especially in cases such as those reflected in the some of the incidents I have described.
Rule 3.8(f) of the District of Columbia Rules of Professional Conduct provides that: "The prosecutor in a criminal case shall not . . . except for statements which are necessary to inform the public of the nature and extent of the prosecutors' action and which serve a legitimate law enforcement purpose, make extrajudicial comments which serve to heighten condemnation of the accused." No statements made by any member of this Office have ever contravened this restriction or served to "heighten condemnation" of any accused.
Moreover, the commentary to the Rule clarifies this ethical precept: "Nothing in this Comment . . . is intended to suggest that a prosecutor may not inform the public of such matters as whether an official investigation had ended or is continuing, or who participated in it, and the prosecutors may respond to press inquiries to clarify such things as technicalities of the indictment, the status of the matter, or the legal procedures that will follow. Also a prosecutor should be free to respond, insofar as necessary, to any extrajudicial allegations by the defense of unprofessional or unlawful conduct on the part of the prosecutor's office." D.C. Rules of Professional Conduct, Rule 3.8(f), Comment [3] (emphasis supplied).
Thus, the ethical commentary adopts, in almost exactly the words I used in our interview, the vision of a prosecutor that I expressed. How you can say that responding to unfounded charges of improper conduct is itself ethically improper is puzzling.
The Other Story
In your appearance on "Face the Nation" you were asked why you had not reported on the White House public relations efforts. Obviously you were free to make such an editorial judgment; unfortunately, by looking at only part of the picture, you were led to many inaccurate factual conclusions.
Under the law, no rule generally restricts the actions of witnesses, subpoena recipients, their attorneys, other attorneys who receive information from them, or any of their other confidants – any of whom can be the source of articles purporting to disclose grand jury or investigative information. Thus, there are abundant sources of information outside the OIC available to the media. See National Journal (May 23, 1998, at 1162) (quoting Fox News reporter David Shuster as saying, "I made it very clear to David Kendall that it would not be in his best interest to ask Fox to reveal sources. I pointed out several examples when Kendall had leaked stuff to Fox.")
It takes little imagination to divine that the strategies of gathering and leaking incriminating information could be used to maximum advantage in the context of the OIC investigation, particularly if the leaks were blamed falsely on the OIC as part of an orchestrated public attack.
In an editorial, the Arkansas Democrat Gazette commented on the leaks contretemps – a commentary you apparently overlooked. "By now it's standard operating procedure: When bad news comes out about your side, attack the other side for leaking the report." Arkansas Democrat Gazette (Feb. 18, 1998). The editorial continued with specific reference to allegations which covered much of the same ground as your article:
[L]isten to a reporter from one of the networks who tells us he's familiar with at least a dozen of the leaks that Mr. Kendall blamed on Judge Starr. "I can tell you categorically," he says, "that they are not from Kenneth Starr's office."
* * * *
A dirty little secret: Sometimes one side will leak information damaging to itself. Why? Rather than wait for the information to come out when it might do maximum damage, the spinner gives it to a reporter prematurely, hoping to blunt its effect. He can also dilute its impact by blaming the other side for leaking it. It happened almost daily during the congressional hearings on campaign finance, when the White House's Lanny Davis perfected this technique.
Id. (emphasis in original).
* * * * *
You challenge this Office at a fundamental level – alleging that we would commit crimes to uncover crime. This challenge goes so deeply to the integrity of this investigation that it cannot go unanswered – and it has not. Each and every member of this Office swore an oath when he or she joined – an oath to uphold the Constitution and the laws of the United States. You do them, and the American public, a disservice when you so cavalierly charge them with violating that oath.
I categorically and unequivocally reject the charge that this Office has, in any way, violated any precept of law, policy or ethics.
Sincerely yours,
Kenneth W. Starr
Independent Counsel
Footnotes
1. The same faulty logic undergirds your attempt to ascribe the stories reported by Jackie Judd of ABC News to OIC disclosures. "Pressgate" at 130, 133. If, as is clearly the case, others have heard these tapes, it is illogical to assume, as you do, that this Office is the source of the disclosure.
2. I note, parenthetically, that your repeated reference to a recent "contrary" D.C. Circuit opinion – apparently a reference to In re: Motions of Dow Jones & Company, Inc.
(D.C. Cir., May 5, 1988) – is simply wrong. The Dow Jones
case, of course, involved press access to grand jury related hearings. As part of its analysis the court accurately, albeit in abbreviated fashion, summarized the Circuit law relating to the applicability of Rule 6(e). Rule 6(e), the court said, applies to "what is likely to occur" before a grand jury and the court gave, as examples of this "the identities of witness or jurors, the substance of testimony . . . the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like." Id. at 1998 WL 216042, 13 (citations omitted). This is completely consistent with (and, indeed a nearly direct quotation of) the "touchstone" analysis of Senate of Puerto Rico,
and does nor reflect any change in the law of this Circuit.
3. For example, the disclosure of information obtained from a prior government investigation does not violate Rule 6(e). Lance,
610 F.2d at 217. A discussion of actions taken by government attorneys or officials, such as a recommendation that an indictment be sought, is not covered by Rule 6(e). Id. Nor is a statement of opinion as to an individual's potential criminal liability prohibited by the rule, even though the opinion might be based on knowledge of matters occurring before the grand jury. Id. Materials prepared for the grand jury's use by the FBI fall outside the Rule. In re Grand Jury,
510 F. Supp. 112, 115 (D.D.C. 1981); see also Davies v. Commissioner of Internal Revenue 68 F.3d 1129, 1130 (9th Cir. 1995) (disagreeing with assertion that materials collected for presentation to grand jury fall under Rule 6(e) and concluding that Rule "protects only materials that reveal some secret aspect of the inner workings of the grand jury") (quotation and citation omitted); In re Grand Jury matter,
682 F.2d 61, 64 (3d Cir. 1982) (holding that Rule 6(e) does not apply to information developed by FBI because "although perhaps developed with an eye toward ultimate use in a grand jury proceeding, [it] exists apart from and was developed independently of grand jury processes").
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