Fallout from Content bombshell

A federal judge summons Kenneth Starr's deputies to her chambers after he admits in a magazine interview that he and a top aide leaked "extensively" to the press.

Published June 16, 1998 7:00PM (EDT)

Prompted by Kenneth Starr's recent admission that he and a chief deputy have been leaking information to favored members of the press, U.S. Judge Norma Holloway Johnson, who is presiding over the independent prosecutor's grand jury in Washington, urgently summoned lawyers for President Clinton and Monica Lewinsky, plus two unidentified Starr deputies, to her chambers Monday to discuss the leaks. Those who took part in the meeting, according to White House sources, included White House Counsel Charles Ruff; David Kendall, Clinton's personal attorney; Plato Cacheris and Jacob Stein, Lewinsky's new lawyers; and the two Starr aides.

The proceedings were sealed and there was no indication of what transpired at the meeting. But a White House aide, clearly relishing Starr's plight, couldn't resist another jab: "One has to assume it was not good news for Starr. How can one assume that? It hasn't leaked!"

Starr's admission about the press leaks was contained in the premiere issue of Content, the eagerly anticipated media criticism magazine launched by Steven Brill. Ever since January, when Starr began investigating whether Clinton had a sexual relationship with Lewinsky and then urged her to lie about it, the president's lawyers have accused Starr's office of repeatedly leaking sensitive information to the media -- charges Starr and his spokesman have repeatedly denied. Now, after Starr's admission to Brill that he and a top deputy "extensively" briefed reporters on an off-the-record basis, the president's lawyers are insisting that the Justice Department conduct an independent investigation to determine whether Starr's leaks violated grand jury secrecy laws.

In his Content article, Brill writes that the leaks from Starr's office violate both Justice Department prosecutorial guidelines and the bar's ethical code for prosecutors. Brill, a lawyer, told Fox News Sunday that the leaks also "clearly violate" court rulings prohibiting prosecutors from leaking substantive information about pending investigations to the press.

Calling Brill's assertions "reckless and irresponsible," Starr denied doing anything improper. He justified the leaks by saying they were aimed at "keeping the public informed about his investigation and countering misinformation that is being spread about our investigation in order to discredit our office and our dedicated career prosecutors."

Justice Department regulations permit a prosecutor 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. But sensing an advantage after months of political damage wreaked by Starr, the White House isn't buying the independent counsel's legal justification. "The leaks are so serious, they go right to the heart of the legitimacy of Starr's investigation," White House political advisor Rahm Emanuel told NBC's "Meet the Press" Sunday. David Kendall, Clinton's lawyer, has asked a federal judge to sanction Starr for the leaks.

A review of relevant law suggests that Brill is on at least as solid legal ground as Starr when he asserts that the background briefings by the independent counsel and his deputy, Jackie Bennett, violate a recent ruling by the U.S. Court of Appeals in Washington that explicitly prohibits the leaking of information about prospective witnesses who might be called to testify before a grand jury. Moreover, the District of Columbia bar rules of professional conduct state: "A lawyer engaged in a case being tried to a judge or jury shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of mass public communication if the lawyer knows or reasonably should know that the statement will create a serious and imminent threat to the impartiality of the judge or jury."

The rules go on to state: "In the context of a criminal prosecution, pretrial publicity can present the further problem of giving the public the incorrect impression that the accused is guilty before having been proven guilty through the due process of law ... When that occurs, even if the ultimate trial is not prejudiced, the accused may be subjected to unfair and unnecessary condemnation before the trial takes place. Accordingly, a prosecutor should use special care to avoid publicity."

Brill also asserts in the article that Starr's office timed the leaks to pressure potential witnesses and thus bolster his own hand -- another violation of legal and ethical rules.

The White House is urging Attorney General Janet Reno to open an independent investigation into the leaks from Starr's office. Under the independent counsel statute, Reno has the sole power to discipline or fire Starr. A spokesman for Reno did not return Salon's calls for comment.

Another detail of the Content article that has energized the White House is Brill's description of Starr's favored reporters as "lap dogs" and "stenographers" for the independent counsel. Brill quotes Starr as identifying the reporters as Susan Schmidt of the Washington Post, David Bloom of NBC News, Jackie Judd of ABC News and Michael Isikoff of Newsweek. Starr also acknowledged that he and deputy Bennett spoke with New York Times reporters Jeff Gerth and Steven Labaton a day before the reporters wrote a story that included details of what White House secretary Betty Currie told investigators during her grand jury appearance. Both Starr and Bennett have denied being the source of the Times story.

Brill's account of the close relationship between Starr and certain reporters has bolstered White House officials who have long maintained that these journalists have become mouthpieces for the independent counsel's office. On Monday, most major newspapers, including the New York Times, the Los Angeles Times and the Boston Globe, ran follow-up stories about the White House's call for an independent investigation into the Starr leaks. The Washington Post, however, ran nothing on the subject. "I would say that when the White House calls the leaks illegal and demands an investigation of the independent counsel, that's news, whether you like this administration or not," said one White House aide. "The other big papers thought it worthy of follow-ups. Where was the Washington Post?"

Reached for comment, Washington Post managing editor Robert Kaiser said, "Others chose to rush interpretive stories into print in today's paper. We did not and we felt that was correct."

In a letter to Brill, Post reporter Schmidt charged that he had misquoted her as saying she had gotten certain information from the independent counsel's office. "Your article has damaged me and several other fine reporters, but it is your reputation that is stained most deeply by it," she wrote.

But even as this new front opens in the war between the White House and Starr, the legal situation surrounding the Lewinsky affair has changed little since the first allegations of sexual misconduct involving Clinton and the former White House intern surfaced in January. Legally and politically, Clinton's fate still rests on Lewinsky's appearance before the grand jury, which has yet to take place. Lewinsky has a new legal team now that is talking seriously with Starr about an immunity deal for her. If Starr grants Lewinsky immunity, her testimony before the grand jury could be devastating for Clinton, who has denied having any sexual relationship with her. It is therefore in the White House's interest to howl to the heavens about Starr's leaking to reporters. If the resulting furor forces Starr's dismissal, Clinton's moment of truth could be delayed. But not delayed forever. Even in cases where prosecutors have been dismissed for improperly leaking material to reporters, the underlying indictments have never been thrown out, legal experts say.

It is still far from clear what Reno will decide in response to the White House's calls for an independent investigation and whether such an investigation might result in Starr's dismissal. Starr's Whitewater probe is already the target of a separate investigation by former Justice Department watchdog Michael E. Shaheen Jr., whom Starr and Reno agreed to appoint to examine charges that Whitewater witness David Hale was paid off by conservative opponents of Clinton.

But one thing is now clear: The clock is now ticking for Starr louder than ever before. With one prosecutor already nipping at his heels and another one possibly to come, it is imperative now that he reach an agreement with Lewinsky and bring her before the grand jury. If that happens, Congress may not be too happy about confronting possible impeachment proceedings before the midterm elections, but Starr can be sure his friends in media will forgive him his leaky ways.

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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