[Congressional Record Volume 144, Number 85 (Thursday, June 25, 1998)]
[Extensions of Remarks]
[Pages E1228-E1229]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


       STARR'S PREVIOUS DENIAL OF LEAKS MAY HAVE VIOLATED THE LAW

                                 ______
                                 

                         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.

             [From the National Law Journal, June 29, 1998]

  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

[[Page E1229]]

     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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