Subpoena-Happy Ken Starr Sees Enemies Everywhere

Kenneth Starr obviously doesn’t enjoy being one of the least popular members of an unpopular profession. When his deputies in the Whitewater independent counsel’s office are criticized for past episodes of dubious prosecutorial behavior, he is infuriated. He likes being the accuser, not the accused. And now he is using a grand jury to intimidate his critics-or those he suspects may be his critics-by issuing subpoenas to White House aide Sidney Blumenthal, private investigator Terry Lenzner and Mickey Kantor, one of President Bill Clinton’s lawyers.

Under what color of law did Mr. Starr presume to haul Mr. Lenzner and Mr. Blumenthal before the grand jury and grill them about their contacts with the media? (The subpoena to Mr. Kantor had to be withdrawn immediately when the independent counsel was informed-as has been reported widely in recent weeks-that Mr. Kantor is serving as a private attorney for Bill and Hillary Clinton, and thus, under the rule of attorney-client privilege, is beyond Mr. Starr’s writ.) Mr. Lenzner rarely speaks with reporters, but when he does, he is protected by the First Amendment. Talking with journalists is part of Mr. Blumenthal’s job as a senior adviser to the President, and even such people are entitled to free speech.

From Mr. Starr’s perspective, however, free speech that criticizes him or his deputies is a synonym for “obstruction of justice.” The phone logs and other records Mr. Blumenthal has been ordered to deliver include scores if not hundreds of names of reporters, producers, editors and other “members of the media.” What offense did he commit by speaking with them? We shall see whether the editors of The Washington Post, The New York Times and other self-proclaimed defenders of the Bill of Rights allow this Starr outrage to pass without protest-or whether they have entirely become creatures of the man whose office provides so many juicy leaks.

Mr. Starr no doubt is most upset by allegations regarding the personal and professional conduct of Michael Emmick, Mr. Starr’s chief assistant in the Monica Lewinsky case. Though only a few stories have appeared so far about Mr. Emmick and other Starr deputies, many print and broadcast journalists have been asking uncomfortable questions about the circumstances under which Mr. Emmick left previous jobs at the U.S. Attorney’s office in Los Angeles and the University of Southern California Law School, where he was an adjunct professor in the early 90’s, and about his conduct of certain cases in his prior posts.

Whatever constraints Mr. Starr would like to impose on speech and the press, he clearly feels that none should apply to him. Or so we must infer from the strange coincidences that occurred over the weekend of Feb. 21.

On the evening of Friday, Feb. 20, Mr. Lenzner received phone calls from two reporters, Michael Weisskopf of Time magazine and Susan Schmidt of The Washington Post . Both reporters wanted to know whether Mr. Lenzner’s firm, Investigative Group International, is probing the backgrounds of Mr. Starr or his deputies for the White House. With confidentiality and discretion as his priorities, Mr. Lenzner usually doesn’t reply to questions about his work or his clients. He declined to answer most of Mr. Weisskopf’s questions and didn’t return the message left by Ms. Schmidt.

Imagine Mr. Lenzner’s surprise, then, when his northwest Washington home was visited the next morning by two F.B.I. agents from Mr. Starr’s office, who presented a subpoena requiring his appearance before the grand jury on Feb. 24. Apparently, the independent counsel’s office is now leaking word of its subpoenas before they are even delivered! Mr. Lenzner was instructed to produce any and all documents “referring or relating to the Office of Independent Counsel Kenneth W. Starr,” and “any contact, directly or indirectly, with a member of the media which related or referred” to Mr. Starr and his staff.

Mr. Blumenthal received an identical subpoena on Friday evening at the White House. On Saturday morning, calls came from three journalists who cover Whitewater and Mr. Starr, among them a Time reporter and Ms. Schmidt’s Post colleague, Peter Baker. All three wanted to ask Mr. Blumenthal about allegations that the White House had hired detectives to investigate Mr. Starr and his deputies. The problem was that no such investigation had taken place.

That problem was solved, in a somewhat circular fashion, when Republican attorney Joseph diGenova appeared on NBC’s Meet the Press on Sunday, Feb. 22. On that broadcast, Mr. diGenova repeated a rumor he had heard from various Washington reporters that he and his wife were being investigated by Mr. Lenzner or by Jack Palladino, a West Coast private eye. Mr. diGenova offered no evidence whatsoever for this sensational charge, but his statement offered an excuse to air them in the press. They were promptly denied by White House press secretary Mike McCurry, who called them “blatant lies.”

It is true that Mr. Lenzner’s firm, which employs 92 people and has offices in seven cities, has dug up information for many companies and individuals. At one point, Mr. Lenzner even worked for a tobacco company that has employed the services of Mr. Starr himself. More recently, he has been employed by Mr. Clinton’s lawyers on the Paula Jones case and the Whitewater matter. But anyone who reads the stories that have angered the independent counsel would see that they required little sleuthing beyond what is available in old newspaper files. Critical coverage of Mr. Starr and his deputies is nothing new.

What is new is the attempt to suppress such coverage through a grand jury inquest. Be careful what you say about Kenneth Starr and his office, especially if you are a journalist. He may be preparing a subpoena for you, too.

Meanwhile, given the Nixonian overtones of Mr. Starr’s latest maneuver, here’s an amusing historical footnote: All three subpoenas were signed by a deputy independent counsel named Robert Bittman. Mr. Bittman’s father is William O. Bittman, who represented Watergate conspirator E. Howard Hunt. Twenty-five years ago, the elder Bittman was investigated by Mr. Lenzner, then serving as deputy counsel to the Senate Watergate Committee. As Mr. Hunt’s lawyer, William Bittman was involved in receiving payoffs from the Nixon White House to keep his client from snitching to the Watergate prosecutors.

Mr. Hunt did snitch, and William Bittman escaped prosecution, but was severely embarrassed when his activities were exposed.

Does anyone see a problem with Robert Bittman issuing a subpoena to the man who hunted down a real obstruction of justice involving his father? Has anyone at The Washington Post noticed the irony of that paper’s reporters becoming the tools of this bit of prosecutorial overreaching?