As Kenneth Starr’s investigation of the President proceeds, so does the Federal judiciary’s investigation of Mr. Starr. The independent counsel and his staff may feel more elevated than their colleagues in the Department of Justice, but they too are sworn to uphold the law-including the law requiring that grand jury testimony remain confidential. Prosecutors are rarely sanctioned for leaking, but they are rarely caught leaking as flagrantly and contemptuously as Mr. Starr allegedly did.
With the unsealing of a ruling by the U.S. Court of Appeals for the District of Columbia on Aug. 7, the public has learned that Mr. Starr may be found in contempt for violating Rule 6E of the Federal Rules of Criminal Procedure-and must now prove before Judge Norma Holloway Johnson that he and his deputies were not the source of copious leaks about the Monica Lewinsky case.
Although important documents in this matter remain sealed for the moment, the two court decisions that were opened the other day offer tantalizing hints about what the leaks probe eventually may reveal about the independent counsel and the national media.
Mr. Starr’s righteous assurances that he and his office do not leak have always sounded dubious, and were devalued even more by the appearance of Steven Brill’s exposé in the premiere issue of Brill’s Content magazine. Mr. Starr replied with an exceptionally narrow view of what constitutes a grand jury leak, hoping to extricate himself by stripping the law of meaning. It didn’t fly.
Now Mr. Brill, vilified and mocked by certain wounded journalists when his article appeared, can cite both Judge Johnson’s decision and the Court of Appeals ruling upholding that decision as vindication of his own broader view of Mr. Starr’s indiscretions. The judge’s opinion cites the Brill article as prima facie evidence that the independent counsel has repeatedly violated grand jury secrecy.
Judge Johnson’s harsh ruling was not fully endorsed by the appeals court panel (which included the august right-winger Laurence Silberman, recently mentioned in this space). She had ordered Mr. Starr and some of his deputies to submit to limited questioning by the President’s attorneys, under oath, about their dealings with the press, and to answer subpoenas for certain documents “related to media contacts.” The appeals court struck down that order as too invasive. But there will be a leaks probe, and it won’t be the self-investigation proposed by Mr. Starr. The judge will conduct it herself.
What is she likely to find out? Let’s turn to the briefs filed by Mr. Starr and David Kendall, the President’s defense counsel, in their argument before the Court of Appeals. Despite heavy redactions to preserve confidential material, these documents contain clues hidden between the endless lines of legal citation.
Mr. Kendall notes acidly that the independent counsel’s many affidavits submitted to the court “do not even deny leaking any of the information at issue in these proceedings.” Further on, he quotes this “extraordinary admission” by Mr. Starr in his own still-sealed brief: “It is impossible to disclose what the United States [Mr. Starr’s nickname for himself] may have represented to press sources without revealing protected information.” In other words, his alleged leaks can’t be examined without risking further leakage. A nice Catch-22, eh?
Mr. Kendall then suggests Mr. Starr may be pleading that he and his crew were “only leaking false information-a deeply troubling proposition in itself …” Troubling indeed, especially for the news organizations that were used to propagating dubious evidence such as the “talking points” and their purported authorship by Bruce Lindsey.
Equally disturbing is the implication that some journalists may have acted as informants for Mr. Starr. An interrupted sentence in Mr. Kendall’s brief begins: “The show cause hearing is designed to look at what the [independent counsel] told the press”-and then it stops suddenly. The next six lines are redacted. And in the next paragraph, Mr. Kendall refers to Mr. Starr’s worry about compromising his “relations with confidential sources of information.”
An even stronger suspicion is created by Mr. Starr’s own appellate petition. Amid much redacted material, he suddenly cites a case upholding “the informer’s privilege … protecting the anonymity of citizens who cooperate in law enforcement.” The informer’s privilege? The only subject being examined by the court is Mr. Starr’s relationship with members of the media, and he seems worried that that will somehow compromise his use of certain informers. Are there reporters who belong in that category? If so, then Steve Brill should reserve space for Pressgate’s appalling sequel.
In the meantime, the Associated Press reported on Aug. 10 that Mr. Starr’s official report to Congress may focus solely on the Lewinsky matter. The independent counsel is expected to file no criminal charges regarding Whitewater, Travelgate or Filegate. So any supposedly impeachable “high crimes and misdemeanors” will arise from an alleged civil perjury about sex. After four years and $40 million, will Mr. Starr dare approach Congress with only that distasteful scrap?