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Thursday, Nov 26, 2009
Several months into the Monica media frenzy, Ken Starr's leaking tactics began to backfire. On June 13, Steven Brill's magazine Brill's Content debuted, with a 28-page article, "Pressgate," that he had researched and written. "The abuses that were Watergate spawned great reporting. The Lewinsky story has reversed the process," he wrote. Brill described how the press had become Starr's "cheering section" and with "a willing, eager press corps Starr was able to create an almost complete presumption of guilt." Starr's "hubris" was "so great" that "he himself will admit these leaks when asked."
Indeed, Starr was quoted as having told Brill, "I have talked with reporters on background on some occasions, but Jackie [Bennett] has been the primary person involved in that. He has spent much of his time talking to individual reporters." There was, he insisted, "nothing improper ... because we never discussed grand jury proceedings." He rationalized the talking by saying that "what we are doing is countering misinformation that is being spread about our investigation in order to discredit our office and our dedicated career prosecutors." Bennett, he went on, had spent most of January 21, the day the scandal broke, "briefing the press." Starr named the names of reporters to whom his office had talked "extensively": Susan Schmidt of the Washington Post, Michael Isikoff of Newsweek, Jackie Judd of ABC News, and Jeff Gerth and Stephen Labaton of the New York Times. Brill concluded that Starr's "protestation that these leaks -- or 'briefings,' as he calls them -- do not violate the criminal law, and don't even violate Justice Department or ethical guidelines if they are intended to enhance confidence in his office or to correct the other side's 'misinformation,' is not only absurd, but concedes the leaks. Worse still is the lack of skepticism with which the press by and large took these leaks and parroted them."
Outraged, Starr immediately issued a statement: "Steven Brill has recklessly and irresponsibly charged the Office of Independent Counsel with improper contacts with the media. These charges are false." Two days later, he issued another such statement, stamping his foot.
Brill's article had a dramatic effect on the "leaks" case against Starr of which President Clinton, White House attorney Bruce Lindsey, and I were plaintiffs. Starr's comments to Brill were now added in our brief to the list of his other violations of Rule 6(e). On June 19, in a sealed decision, Judge Norma Holloway Johnson ruled that Starr was guilty of prima facie violations and must "show cause" why he should not be "held in contempt." We filed another brief asking the court for discovery -- the right to question Starr and his deputies under oath. On June 26, in a sealed decision, Judge Johnson granted us the power to "depose the OIC employees" -- meaning Starr and his prosecutors -- on their press contacts. Our lawyers could now interrogate his prosecutors, which would open them to damaging revelations of their illegal manipulations, to penalties for these, and even potentially to charges of perjury and obstruction of justice.
This was not good for Starr. If discovery went forward, his office would unravel. So he filed an extraordinary sealed motion. His main argument was that his investigation depended on its press contacts for securing secret information: "It is impossible to disclose the Government's contacts and communications with press sources without revealing confidential investigative information. . . . Disclosure of the OIC's contacts with reporters may undermine the OIC's future ability to obtain information from potential sources." Here he cited a privilege "long recognized as common law, the informer's privilege." Reporters were his informers! They were, in his own description, his army of spies. While they might think of themselves as independent and intrepid seekers of truth, to him they were snitches.
In desperation, Starr appealed to the District of Columbia Circuit Court of Appeals, which granted him a stay against the July 11 court date. On August 3, a three-judge panel, weighted with two conservatives, one of them, Judge Laurence Silberman, a close friend and political soulmate of Starr's -- and David Brock's old mentor -- issued a writ of mandamus in Starr's favor. There would be no discovery. Instead the case was sent back to Judge Johnson, who appointed a special master to investigate and issue a report to her. Thus, Starr's office was now under two investigations -- one by Justice Department special counsel Michael Shaheen, who was investigating charges that Starr's key Whitewater witness David Hale had accepted money from anti-Clinton plotters, the other in the leaks case. But Starr had escaped the worst.
Excerpted from "The Clinton Wars," by Sidney Blumenthal, to be published on May 20 by Farrar, Straus and Giroux LLC. Copyright 2003 by Sidney Blumenthal. All rights reserved.
