THE WASHINGTON OPINIONOCRACY has developed pretty good antennae about the sincerity of Lewinsky-related public statements by various presidential henchmen. Clinton attorney David Kendall and his allies are now loudly bemoaning news leaks by Kenneth Starr’s team of prosecutors. The complaint is couched in concern for the reputation of innocents and the integrity of the grand-jury system. But nobody’s buying that. Kendall’s February 6 protest letter to Starr strikes the Washington observer class as more hyperbolic spin than earnest law: The independent counsel’s “deluge” of leaks, according to Kendall, is “intolerable,” “appalling,” “cynical,” “unfair,” “prejudicial” — illegal, even. Most people in the press assume, and many newspapers have explained, that little motivates the latest anti-Starr assault beyond the Clinton camp’s desperation for a talking point: something to use in a situation where honesty would simply be too . . . embarrassing.
But if Washington journalism has seen clear through the purpose of this deliberately plotted controversy about leaks, it is still having trouble with the underlying truth of it all. Most newspeople believe the leak charge is cynical. But they’re also inclined to believe it is at least half-true.
It is widely assumed in Washington that Ken Starr’s troops have indeed leaked information about the Lewinsky investigation — some of which, by law, is supposed to be held confidential. In fact, it is widely assumed in Washington that virtually every big Lewinsky revelation is, more than likely, a plant by the independent counsel. It was a February 6 New York Times account of Clinton secretary Betty Currie’s grand-jury testimony that ostensibly triggered Kendall’s public outrage. Before most people had even read the story, on the previous evening’s Nightline, the doyenne of Washington legal analysts, Nina Totenberg, characterized it as “fairly clearly a leak from the prosecutor’s office.”
Where this idea comes from is a genuinely interesting question. Especially since David Kendall, who has tried harder than anyone to advance it, has — I’m choosing my words carefully here — absolutely no evidence whatsoever that Kenneth Starr or anyone working for him has ever improperly “leaked” anything. Kendall’s 15-page, single-spaced letter to Starr purports to itemize 53 such leaks dating back to January 22. Cross-checked against all the original news stories from which this list is derived, it is a document of truly astonishing crudity.
First off, there actually aren’t anywhere near 53 “leaks” in Kendall’s list. There are 53 quotes. But more than a third of them — 19 to be precise — are from the same eight news reports. And five of them are from just a single Washington Post story published January 24. Kendall simply logs every sentence that offends him one by one, spaces them out over the course of his letter, and hopes that small print will disguise the trick.
Furthermore, some of Kendall’s adduced “leaks” aren’t leaks at all. For example, he ominously underlines the sourcing in a January 29 Washington Times update on the Lewinsky investigation: “lawyers and others close to the probe.” But the disclosure in question? That the independent counsel is seeking information about “an attempt to obstruct justice and conspire to suborn perjury.” Someone may as well have “leaked” that the sky is blue.
Rule 6(e) of U.S. law governing criminal procedure imposes a strict secrecy requirement on “matters occurring before the grand jury.” Several criminal attorneys I talked to last week acknowledged that the breadth of this requirement, as established in case law, remains ambiguous. It may apply not just to actual grand-jury testimony but to testimony and documentary evidence likely to be generated in the future by a filed subpoena. But every attorney I spoke with, once apprised of the details, agreed that the vast majority of 6(e) violations Kendall charges to Starr’s office are fictitious. Nearly three-fourths of the “leaks” involve matters that fall outside even the broadest possible construction of Rule 6(e): the status of immunity negotiations with Monica Lewinsky, who had not yet been called to testify; the contents of Linda Tripp’s tape recordings, which were surrendered voluntarily to the independent counsel (and obtained and excerpted separately by Newsweek); and general speculation about the strategy and progress of the investigation.
There are non-binding guidelines — bar-association policies and whatnot — that would restrict attorneys from discussing such things in public. But federal prosecutors traditionally and vigorously resist such restrictions. Clinton deputy attorney general Eric Holder, for instance. In a 1995 textbook on white-collar crime, Holder, then with the U.S. Attorneys Office, co- authored a chapter on “dealing with the media” in high-profile cases. He was for it. There are “legitimate law enforcement reasons” for prosecutors to help journalists report about ongoing investigations, Holder wrote, reasons that are “too often ignored.” For one thing, “the ‘client’ of a prosecutor is the public, and members of the public have a right to know what their government is doing, and how their tax dollars are being spent.” It makes ” little sense,” Holder concluded, “to pretend that there is no criminal investigation going on when that fact is already widely known.”
Whether or not such “leaks” are appropriate, Kendall attributes all of them in the Lewinsky controversy to Ken Starr. And this, too, he does speciously. Several of the “leaks” are totally unsourced — either in Kendall’s quoted version or the full original story. Most are sourced ambiguously. And some of them are quite clearly, in context, not from the independent counsel’s office.
A Washington Post story on Starr’s immunity negotiations with Lewinsky attorney William Ginsburg exhaustively quotes Ginsburg, on the record, in passages that Kendall omits from his letter. But because a single sentence in that story cites “sources in Starr’s office” on an unrelated, innocuous matter, Kendall blames the independent counsel for the whole thing. A New York Times story on the Tripp tapes includes the following sentence: “There was no comment from Mr. Starr or his top aides.” Kendall doesn’t quote that sentence, and again attributes the “leak” to Starr. The second half of a Washington Times quote from “one lawyer familiar with the ongoing grand- jury investigation” makes obvious that the man has no connection to Starr’s office. Kendall leaves those words out of his citation with a set of ellipses, and once more accuses the independent counsel of an improper disclosure. And so on.
Kendall deals most extensively with an NBC story by reporter Claire Shipman, who does seem, on the face of it, to have had conversations with Ken Starr’s investigators. But this “leak” — also about immunity negotiations with William Ginsburg — isn’t a violation of 6(e). The February 6 New York Times story about Betty Currie had multiple sources (though Kendall deals only with the part reportedly revealed to “investigators” by “lawyers familiar with her account”) and would soon be confirmed by the Washington Post with “sources close to the president.” Kendall doesn’t mention that. Nor does he mention that the Times story itself acknowledges that what Betty Currie actually told the grand jury “remains a secret.”
In fact, the closest thing in Kendall’s letter to a real, improper disclosure by Kenneth Starr is a New York Post gossip-column item, attributed to “sources in Starr’s office,” about a subpoena to Revlon corporation chairman Ron Perelman. That item was false; there is no such subpoena. And the item describes independent-counsel investigators as ” bumbling outsiders,” so it stands to reason that Starr’s people wouldn’t have been the source in any case. Fifty-three at-bats, and David Kendall can’t even draw a walk.
Why, then, does so much of Washington assume that the Lewinsky investigation is leaking like a sieve? A clever person might speculate that journalists know who their sources are, whether or not they clearly identify them in print, and they know Starr is a source here because . . . well, they just know it. But the world doesn’t work that way. For every reporter actually working on the Lewinsky story, there are 50 other reporters commenting on the leaks. And working reporters rather jealously guard the identities of their sources, even inside their own newsrooms. There are only a couple dozen of these genuinely in-the-know reporters. No surprise, none of them has ever fingered Starr for a leak.
Then there is the “simple logic” theory. Most of the Lewinsky news reports are damaging to Clinton. So they must come from the other side of the controversy’s divide — from Starr. The world doesn’t work this way, either. Human beings can’t help talking about intrinsically fascinating secrets, no matter where or for whom they work. And the number of people knowledgeable about All Things Monica is already quite large. Most of the possible defendants’ and witnesses’ lawyers are sharing information with one another. Several of those defendants and witnesses have given public statements about their testimony. By now, most of the relevant evidence is known equally to the independent counsel and the Clinton camp, and neither adversary is necessarily more likely than the other to let something slip. Which is almost certainly why Newsweek was able to source a recent Lewinsky story — which the White House has blamed on Starr — to “lawyers close to the president’s defense”: because that’s who told them.
Most Washington opinion people have only the dimmest notion of what a criminal prosecution looks like on the inside, of course, or how complicated the motivations of everyone involved inevitably become. Most Washington opinion people, for that matter, can’t be bothered to read the Kendall letter and figure out how worthless it is as a guide to the facts. So they’re tempted to split the difference. This is a dispute between two sets of respectable, smart, wealthy lawyers. David Kendall says the independent counsel’s office is leaking. The independent counsel’s office says it is not. You start from the assumption that the truth lies somewhere in the middle. So Ken Starr is often the leaker. Right?
No, wrong. Not even close.
David Tell is opinion editor of THE WEEKLY STANDARD.
