Federal Judge Norma Holloway Johnson today unsealed her Sept. 25 ruling on alleged leaks to the media by Kenneth Starr and his deputies, analyzing in scathing detail the news reports that caused her to suspect the Office of Independent Counsel of breaking federal law regarding grand jury secrecy in the Monica Lewinsky case.
In her 23-page order -- which responded to papers filed by attorneys for the White House, President Clinton, Lewinsky and Clinton aides Bruce Lindsey and Sidney Blumenthal -- the judge appointed a "special master" with full subpoena power to investigate possible violations of Rule 6(e), the statute that protects the sanctity of grand jury proceedings. The name of the special master, an officer of the court who will report directly to the judge, was redacted from her decision. The contents of the special master's report, to be used by the judge in determining whether to hold Starr and his deputies in contempt, will be kept under seal, the order said.
The judge cited two dozen specific examples of newspaper and magazine articles and television broadcasts as prima facie evidence that prosecutors in Starr's office had illegally given information to reporters. She named individual reporters and news organizations including CBS, ABC, NBC, CNN, the New York Times, the Washington Post and Newsweek as likely recipients of such leaks during the first two months of Starr's Lewinsky probe. In an earlier order on June 19, which Starr appealed, the judge had cited only six specific reports as evidence of leaking. She added 18 more in the order unsealed today, based on information provided by the president's attorneys.
And in a further rebuke to the independent counsel, Johnson also upheld the broadest and strictest interpretation of the secrecy rules, citing previous rulings by the U.S. Court of Appeals for the District of Columbia circuit. Those rules, she wrote, encompass not only "the direct revelation of grand jury transcripts," but also any disclosure by prosecutors of "the identities of witnesses or jurors, the substance of testimony, [or] the strategy or direction of the investigation." [Emphasis in original.] In that respect she clearly sided against Starr and with Steven Brill, whose article "Pressgate," the cover story of last summer's premiere issue of Brill's Content, accused the independent counsel of incessant, malicious leaking during the early weeks of the investigation.
Brill's long, controversial article was itself among those cited by Johnson as evidence of Starr's leaks. In a footnote to her decision, the judge noted: "The Independent Counsel's admission to Mr. Brill that he and Deputy Independent Counsel Jackie Bennett speak to reporters on condition of anonymity and his statement to Mr. Brill that Rule 6(e) does not apply to 'what witnesses tell FBI agents or us [the OIC] before they testify before the grand jury' strongly supports the Court's findings of prima facie violations of Rule 6(e) by the OIC." While denying any leaking from his office, Starr had argued, both in court and in public debate with Brill, for a much narrower interpretation of the secrecy rules.
In each of the 24 examples she cited, Johnson selected precise language that, in her view, indicated a leak of protected information originating from the independent counsel's office. According to the judge, the first alleged leak may well have occurred last Jan. 21, the same day the Lewinsky story broke in the mainsteam media. The first example she offers is an NBC Nightly News report in which White House correspondent David Bloom quoted "federal law enforcement sources" saying that Lewinsky would be offered "a choice between immunity and prosecution." To Johnson, this was an obvious reference to "attorneys or agents" from Starr's office, revealing that an indictment was being considered, naming a target of the investigation and outlining the prosecution's strategy -- all potential violations of the secrecy rules.
The judge applied the same strict standard to the other stories and broadcasts she analyzed, taking equal exception to all varieties of journalistic euphemism--"knowledgeable sources," "lawyers close to the investigation," "sources familiar with," "sources in Ken Starr's office" and even the seemingly innocuous and utterly vague "law enforcement sources," among others. Among the journalists whose work contained examples of possible grand jury secrecy violations are Michael Isikoff, Howard Fineman and Karen Breslau of Newsweek; Jeff Gerth, Francis X. Clines, Don van Natta Jr. and James Bennet of the New York Times; Susan Schmidt and Peter Baker of the Washington Post; ABC News' Jackie Judd; Lisa Myers and Claire Shipman of NBC News; and Scott Pelley, the White House correspondent for CBS News. Isikoff, Gerth, Schmidt and Judd are widely regarded as having maintained close ties to Starr and his deputies.
(But Starr's office observed grand jury secrecy rules with some reporters: In May, Charles G. Bakaly III, counselor to the independent counsel, wrote to Salon to ask that reporter Murray Waas, who has broken many stories critical of Starr's investigation, stop contacting members of his office for information. "Mr Waas' attempts to get members of this office to disclose grand jury and non-public information are inappropriate and unfairly expose our personnel to charges that they have inappropriately provided information," Bakaly wrote.)
It is unclear whether any of the reporters cited in Johnson's opinion, or their editors or producers, will be subjected to the scrutiny of the special master, along with Starr, his deputies and the other attorneys and investigators in the Office of Independent Counsel. The judge's order empowers the special master to subpoena testimony "from the OIC or any other relevant parties," as well as "documents such as telephone records, telephone logs, letters, facsimiles, notes, memoranda, appointment records, visitor logs, calendars, etc."
If reporters and news organizations are subpoenaed, they may well claim a First Amendment privilege against being compelled to testify or turn over documents -- although Starr himself reportedly has subpoenaed materials from networks and other media outlets in the past few years. And in a brief responding to the president's lawyers in the leaks dispute, Starr also cited an "informant's privilege" that he claimed would exempt him from having to reveal his office's contacts with some journalists.
Not surprisingly, White House officials were delighted by the unsealing of Johnson's decision, which they regarded as further proof of their charge that Starr has engaged in partisan misconduct. Attorneys for Clinton also felt vindicated by her ruling.
One of the president's lawyers, noting that the decision had remained secret for more than a month, remarked, "Isn't it interesting that this was very harmful to Starr's office, but it never leaked?"
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