[Congressional Record Volume 145, Number 18 (Tuesday, February 2, 1999)]
[House]
[Pages H279-H281]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          KEN STARR'S MEDDLING

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 19, 1999, the gentleman from Massachusetts (Mr. Frank) is 
recognized during morning hour debates for 3 minutes.

[[Page H280]]

  Mr. FRANK of Massachusetts. Mr. Speaker, even those of us who have 
come to be of low expectations regarding Kenneth Starr's behavior were 
astonished on Sunday when he, through his aides, interjected himself 
into the current proceedings on impeachment by announcing that he 
thinks he has the right to indict the President. Mr. Starr has a very 
unusual way of operating. He sets for himself a very low standard and 
then consistently falls short of it.
  The New York Times has been a major critic of President Clinton, but 
they have been forced by Mr. Starr's abhorrent behavior to become more 
critical of him, given their dedication to the rule of law. The New 
York Times editorial entitled ``Ken Starr's Meddling'' in which they 
note, and I quote, ``Mr. Starr is already regarded by his critics as an 
obsessive personality. Now he seems determined to write himself into 
the history books as a narcissistic legal crank.''
  ``The news article highlighted an underlying problem. Mr. Starr keeps 
flapping around, with deliberations over indictments and by meddling in 
the House managers' contacts with Monica Lewinsky, in ways that 
complicate Senate work that is more important than he is. . . . should 
rebuke Mr. Starr and appeal to the Federal judges who supervise him to 
restrain him from further disturbance of the constitutional process.''
  Now, The Times understandably brushes off the fact that this was 
leaked illegally from Mr. Starr's office uncontestably, because they 
were the beneficiaries of the leak. But Mr. Starr has been guilty of 
this, and he has been guilty in sworn testimony before the House of 
misleading and perhaps lying about his role in this.
  Mr. Speaker, when he testified before us on November 18 and I asked 
him about leaks, he said he could not respond because ``I am operating 
under a sealed proceeding.'' I then said, ``Sealed at your request, 
correct?'' And here is his answer. ``No, Mr. Frank. It is sealed by the 
Chief Judge.''
  Mr. Speaker, I insert those portions of the editorial absent such 
references to the President and the Senate as are prohibited by House 
rules, and the following excerpt of hearing testimony of Mr. Starr for 
the Record and urge Members to read the whole editorial.

       Mr. Frank. Let me ask you again, did anybody on your staff, 
     to your knowledge, do the things which Judge Johnson has 
     included in her list of the 24 items? Understanding that you 
     may think that if they did, they weren't violations, but did 
     anybody on your staff give out that information on any of 
     those 24 instances?
       Mr. Starr. There are a couple of issues or instances in 
     which we issued a press release where we do have--you know, 
     we clearly issued a press release with respect to certain 
     matters. But may I say this. I am operating under a sealed 
     litigation proceeding, and what I am trying to suggest is, I 
     am happy to answer as fully as I can, except----
       Mr. Frank. To the extent that you can't answer under this 
     particular proceeding, it is sealed at your request to the 
     extent that it is sealed at all. That is, Judge Johnson 
     granted a motion for an open procedure. You appealed to the 
     circuit court, and they closed it up, so if you didn't 
     object, nobody else will. If you didn't do anything, why not 
     just tell us if it is wrong factually. On the other hand, you 
     are going to say well, you successfully got the circuit court 
     to seal it, so I suppose I can't do much, but I don't 
     understand why you don't just tell us.
       Mr. Starr. Let me make very briefly these points. We 
     believe that we have completely complied with our 
     obligations.
       Mr. Frank. That wasn't my questions.
       Mr. Starr. Under 6(e).
       Mr. Frank. My question is, Judge Johnson set it forward, 
     and they did this. They could differ as to the law. I am not 
     debating the law, I am trying to elicit a factual response.
       Mr. Starr. The second point that I was trying to make is 
     that I am operating under a sealed proceeding.
       Mr. Frank. Sealed at your request, correct?
       Mr. Starr. No, Mr. Frank. It is sealed by the Chief Judge 
     based upon her determination of----
       Mr. Frank. She granted a much more open proceeding and you 
     appealed that and got a circuit court to severely restrict 
     the procedure on the grounds that hers was too open. Isn't 
     that true?
       Mr. Starr. Congressman Frank, what she did was to provide 
     for a procedure that didn't provide quote, ``openness,'' it 
     provided for an adversarial process, and this is all in the 
     public domain. But from this point forward, no, she is the 
     custodian and the guide with respect----
       Mr. Frank. Would you ask her to release that? I think this 
     is severe for public interest in dealing with this leak 
     question. It does to the credibility of a lot of what you 
     have done. Would you then join, maybe everybody would join, 
     maybe the White House would join, and others, in asking Judge 
     Johnson to relax that so we could get the answers publicly, 
     because I think there is a lot of public interest, legitimate 
     interest in this.
       Mr. Starr. I am happy to consider that, but I am not going 
     to make, with all respect, a legal judgment right on the spot 
     with respect to appropriateness----
                                  ____


                       [From the New York Times]

                          Ken Starr's Meddling

       The most surprising aspect of the Senate impeachment trial 
     is the persistent challenges to the senators' constitutional 
     right to run it. First came the House managers' attempt to 
     call a parade of unnecessary witnesses. Now we have an 
     apparent effort from the office of Kenneth Starr, the 
     independent counsel, to spark a debate over criminal 
     prosecution of the President at a time when the Senate 
     deserves a calm decision-making atmosphere and an open field 
     for negotiation.
       Mr. Starr is already regarded by his critics as an 
     obsessive personality. Now he seems determined to write 
     himself into the history books as a narcissistic legal crank. 
     Once the Senate started the second Presidential impeachment 
     trial in American history, that was Mr. Starr's cue not only 
     to shut up but to stop any activity by his office that would 
     direct attention away from the Senate or reduce its 
     bargaining room. The issue of who leaked news of Mr. Starr's 
     indictment research to the New York Times is a phony one. 
     What is needed here is not an investigation of journalistic 
     sources, but attention to the substance of Mr. Starr's legal 
     mischief. It seems designed to disrupt these solemn 
     deliberations into Presidential misconduct of a serious if 
     undeniably sordid kind.
       The news article highlighted an underlying problem. Mr. 
     Starr keeps flapping around--with deliberations over 
     indictments and by meddling in the House managers' contacts 
     with Monica Lewinsky--in ways that complicate Senate work 
     that is more important than he is. . . . rebuke Mr. Starr and 
     also appeal to the Federal judges who supervise him to 
     restrain him from further disturbance of the constitutional 
     process.
       This incident is more serious than Mr. Starr's customary 
     blundering. The Constitution clearly allows the indictment 
     and prosecution of officials who have been impeached by the 
     House and removed from office by the Senate. But whether such 
     a trial should go forward in this case is a complex 
     constitutional and civic question that needs to be shaped by 
     the wisdom . . . rather than by Mr. Starr's personal 
     inclinations and his idea of prosecutorial duty. If the three 
     witnesses being deposed this week do not dramatically change 
     the evidence, then the Senate is clearly the right place to 
     make the final disposition of President Clinton's case.
       For Mr. Starr's office to be talking about a trial inhibits 
     the Senate's freedom to draft a censure resolution that might 
     include some kind of Presidential admission. Indeed, 
     virtually everyone in the capital except Mr. Starr seems to 
     know that censure-plus-admission, speedily arrived at, would 
     be a far better outcome for the country than a trial for 
     either a sitting or former President.
       To be sure, if the changes were of greater criminal 
     magnitude or threatened orderly government, such a trial 
     could be fitting and constitutional once a President was 
     removed. While removal is not appropriate in this case, the 
     Senate is clearly the appropriate venue for condemning and 
     finding a proportional punishment to offenses like those 
     committed by Mr. Clinton.

  Recently, after this testimony, the Chief Judge released the papers 
in the case relevant to that investigation of the leaks, and in this we 
have the following finding and the following pleading from Mr. Starr: 
``The Office of the Independent Counsel urges the Court to keep the 
Order under seal until the conclusion of the investigation.'' And he 
ends once again by saying, ``The Order should remain under seal.''
  I asked him, in other words, if the order was sealed at his request. 
He denied that. He said no. Now we have the paper that says he simply 
did not tell us the truth. But as The Times points out, the even more 
important issue is his apparent inability to restrain himself; his 
wholly inappropriate interjection of himself into the impeachment 
proceeding.

   [In the United States District Court for the District of Columbia]

     In re Grand Jury Proceedings

   [Misc. Action Nos. 98-55, 98-177, and 98-228 (NHJ) (consolidated)]

 Response of the United States to the Court's September 25, 1998 Order 
                             To Show Cause

       The United States of America, by Kenneth W. Starr, 
     Independent Counsel, respectfully submits its response to the 
     Court's request for proposed redactions to the Order to Show 
     Cause of September 25, 1998. The Office of the Independent 
     Counsel (``OIC``) urges the Court to keep the Order under 
     seal until the conclusion of the investigation by the Special 
     Master and findings by this Court. We believe that postponing 
     the release of the Order will help preserve the integrity of 
     the ongoing grand jury investigation, further the

[[Page H281]]

     interests of Rule 6(e), and allow the Special Master to 
     undertake his task without outside interference. If the Court 
     determines to unseal the Order, the OIC proposes that the 
     identity of the Special Master be redacted so that, to the 
     maximum extent possible, he is able to conduct his work 
     outside the intense glare of the inevitable media spotlight.
       In its August 3, 1998 opinion in this matter, the Court of 
     Appeals cautioned against procedures that might cause ``undue 
     interference with either the work of the grand jury or that 
     of the district court itself.'' In re Sealed Case No. 98-
     3077, 151 F.3d 1059, 1073 (D.C. Cir. 1998). Here, the work of 
     the Special Master also is protected from undue interference. 
     Indeed, pursuant to the Court of Appeals' opinion, this 
     proceeding is being conducted ex parte and in camera 
     precisely to minimize the risk of interfering with or 
     impeding the grand jury investigation. See id. at 1075.
       Unsealing the Order before the Special Master concludes his 
     work, and subjecting this proceeding to the unprecedented 
     media frenzy that has surrounded the underlying grand jury 
     investigation, needlessly increases that risk. Divulging the 
     subject matter and scope of the proceeding at this time will 
     provide a roadmap for prying and intrusion into it, and 
     necessarily into grand jury matters in an ongoing 
     investigation. These dangers can be avoided simply by 
     delaying release of the Order until the Special Master 
     conclude his investigation and the Court issues its findings.
       Furthermore, as both this Court and the Court of Appeals 
     have recognized, the threshold standard for establishing a 
     prima facie case is minimal and is not conclusive of a 
     violation of Rule 6(e). As the Court of Appeals noted, the 
     OIC will have the opportunity in its rebuttal to ``negate at 
     least one of the two prongs of a prima facie case--by showing 
     either that the information disclosed in the media reports 
     did not constitute `matters occurring before the grand jury' 
     or that the source of the information was not the 
     government.'' Id. The unsealing of findings pinioned on the 
     mere prima facie standard could be exploited by the criminal 
     defense bar in an effort to undermine the integrity of the 
     OIC's investigation. This is especially true in the political 
     climate existing as a result of the OIC's Sec. 595(c) 
     referral to Congress. The integrity of the investigation is 
     an important interest that Rule 6(e) and the ex parte and in 
     camera nature of the proceeding at this stage is intended to 
     protect. That interest should not be compromised by unsealing 
     the Order now.
       Maintaining the Order under seal also will allow the 
     Special Master to conduct his work without interference and 
     interruption. If the existence and identity of the Special 
     Master become public, he undoubtedly will become the focal 
     point of worldwide press attention, his efforts the subject 
     of media inquiry, investigation, and speculation. These 
     distractions will only serve to impede a process that the 
     Court, and the OIC, wants to see concluded expeditiously. 
     Should the Court nevertheless determine to release the Order, 
     the OIC proposes the redaction of all references to the 
     identity of the Special Master in order to afford him as much 
     anonymity as possible. (Copies of the OIC's proposed 
     redactions on pages 20-22 of the Order are attached hereto).
       Finally, the OIC intends to file a motion for partial 
     reconsideration of the Order. We believe that this motion is 
     well justified under the facts and law at issue in this 
     proceeding, especially since the OIC has not had the 
     opportunity to address whether several of the media reports 
     establish a prima facie case. It would be premature for the 
     Court to unseal the Order while the motion is pending, and 
     before the Court has given thoughtful consideration to our 
     views. At the very least, the Court's preliminary rulings in 
     this matter, with which we respectfully disagree, ought not 
     be made public until the motion for partial reconsideration 
     is decided.
       For the reasons set forth above, the Order should remain 
     under seal until the Special Master completes his 
     investigation and the Court issues its final findings.
           Respectfully submitted,
     Donald T. Bucklin,
     Andrew W. Cohen,

                             Squire, Sanders & Dempsey L.L.P.,

                                                   Washington, DC.
              Attorneys for the Office of the Independent Counsel.

       Of Counsel,
     Kenneth W. Starr,
                                              Independent Counsel,
                                                   Washington, DC.
       Dated: October 1, 1998.

  Mr. Starr has already done enormous damage to the institution of the 
Independent Counsel. It is time for him to somehow find an ability to 
show a restraint that has previously eluded him and let this proceeding 
conclude without him having to make himself, in a distracting way, the 
center of attention.

                          ____________________