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“STARR'S PREVIOUS DENIAL OF LEAKS MAY HAVE VIOLATED THE LAW” mentioning the U.S. Dept. of Justice was published in the Extensions of Remarks section on pages E1228-E1229 on June 25, 1998.
The publication is reproduced in full below:
STARR'S PREVIOUS DENIAL OF LEAKS MAY HAVE VIOLATED THE LAW
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HON. JOHN CONYERS, JR.
of michigan
in the house of representatives
Wednesday, June 24, 1998
Mr. CONYERS. Mr. Speaker, I enter into the Record the following article from the National Law Journal concerning legal issues that have been raised by Mr. Starr's previous denials of allegations of improper disclosures by his office to the press.
Lies, Not Leaks, Real Starr Issue? Critics Say His Leak Denials May
Have Violated U.S. Law
(By David E. Rovella)
Kenneth W. Starr's critics say the Whitewater independent counsel should be investigated for leaking grand jury information. But if he's found to have done anything wrong, it may not be for leaking, but for lying--the very offense Mr. Starr is trying to pin on the president.
Such thinking has gained some currency among lawyers connected to the investigation, but not because of Mr. Starr's recently published admission that he gave information to reporters--information some say may be protected by grand jury secrecy laws. Instead, defense lawyers are focusing on statements Mr. Starr made in the past six months, statements that gave the impression that he never commented about such matters.
For example, a defense lawyer involved in the investigation says confidential memos sent by the Office of the Independent Counsel to him and to the Justice Department deny such leaks. As a result, he argues, Mr. Starr's recent statements could make him vulnerable under 18 U.S.C. 1001(a)(2), which punishes false statements made to executive branch officials, such as U.S. Attorney General Janet Reno.
In short, Mr. Starr and Bill Clinton are accused of unseemly acts most people don't care much about. For Mr. Clinton, the allegation is sex with a White House intern. For Mr. Starr, it is allegedly illegal leaking. But if either man is brought down, it would not be because he committed an illicit act, but conceivably because he lied about it.
Just as Mr. Starr has been allowed to chase evidence of Mr. Clinton's lying or suborning perjury to cover up alleged sexual peccadilloes, lawyers representing possible targets of the Whitewater investigation say Ms. Reno should appoint a special prosecutor to investigate alleged leaks and any possible false statements made by Mr. Starr. Justice officials would only say that the Office of Professional Responsibility is reviewing the article in Brill's Content magazine, published June 15, in which Mr. Starr made his so-called leak confession.
The independent counsel has said in at least three separate public statements that information he provided to reporters did not violate Rule 6(e)(2) of the Federal Rules of Criminal Procedure, which requires grand jury secrecy. But observers say even the possibility that he lied increases pressure on the Justice Department to launch an unprecedented probe of the independent counsel.
``It's very parallel to Clinton and Lewinsky,'' says former Iran-Contra associate independent counsel Gerard E. Lynch.
``The question of leaks, like the question of consensual oral sex, is something only two people know about, and neither one wants to tell.''
The Defense of Starr
In a June 16 letter to Mr. Starr, Clinton lawyer David E. Kendall listed various points during the six-month Lewinsky investigation when Mr. Starr had publicly declined to comment on grand jury matters, citing secrecy concerns. One lawyer close to the investigation, who requested not to be identified, says that when complaints about alleged leaking by Mr. Starr were filed with Deputy Attorney General Eric Holder Jr., Mr. Starr responded with scathing denials. ``He had made statements to Justice that he had not done these things,'' the lawyer says. Neither Mr. Starr nor the Justice Department would comment on whether such memos were sent or what they may have contained.
But Mr. Starr's carefully worded statement tracks his defense against such charges. In the magazine article, he stated that his talks with reporters did not violate grand jury secrecy because the information provided stemmed from interviews with grand jury witnesses before they testified.
If there ever is an investigation, there remains some question of how Justice would probe the OIC without compromising its independence. ``Most 6(e) cases tend to be
[Freedom of Information Act] cases, media requests to open the court--not dealing with the behavior of the prosecutor,'' says former Iran-Contra associate independent counsel John Q. Barrett.
Experts say Ms. Reno could use her general powers to appoint a ``Regulatory Special Prosecutor,'' similar to those appointed prior to the independent counsel law. This, they say, is preferable to seeking another independent counsel--which would likely be denied by the Special Division of the U.S. Circuit Court of Appeals for the District of Columbia--or to asking Mr. Starr to expand the mandate of former DOJ official Michael Shaheen, who is probing alleged payoffs of Whitewater witness David Hale by right-wing groups.
The ``Dow Jones'' Case
Both the leaking and lying charges hinge on a May 8 ruling by the D.C. Circuit that dealt with media access to hearings spawned by the Whitwater grand jury. A passage in the ruling, which may be a nonbinding dictum because it doesn't directly involve media access, contradicts Mr. Starr's initial assertions that he did not breach 6(e). In Re: Motions of Dow Jones & Co., 98-3033. Circuit Judge A. Raymond Randolph addressed 6(e)(2), which requires secrecy for ``matters occurring before the grand jury.''
``This phrase . . . includes not only what has occurred and what is occurring, but also what is likely to occur,'' he wrote. ``Encompassed within the rule[is] . . . the substance of testimony [and the] strategy or direction of the investigation.''
Some experts who say that using 18 U.S.C. 1001's prohibitions of lying against Mr. Starr would be a stretch also say they doubt the potency of Dow Jones on 6(e). ``If I were a special prosecutor assigned to pursue this theory, it wouldn't be a slam-dunk,'' says Mr. Lynch.
Another facet of Mr. Starr's defense deals with charges that his alleged leaking violates Justice Department policies. Under 28 U.S.C. 594(f)(1) of the independent counsel act, Mr. Starr must obey the ``established policies'' of the Justice Department, ``except to the extent that to do so would be inconsistent'' with the act.
One of those policies is Rule 1-7.530 of the U.S. Attorney's Manual. While barring medial contact concerning ongoing investigations, the rule makes an exception for
``matters that have already received substantial publicity, or about which the community needs to be reassured.'' Mr. Starr says he was obligated to correct misinformation in the press, and therefore his press comments fell under that exception. (Mr. Lynch says that this argument is ``a little lame.'')
However, the independent counsel law may relieve Mr. Starr of having to follow 1-7.530 at all, if he feels that doing so would be ``inconsistent'' with the act.
But Mr. Lynch says this provision of the law isn't a free ride. Mr. Starr ``is not a total free agent; he's a substitute for a regular prosecutor,'' he says. ``You're not supposed to make up your own rules along the way.''
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