Letter From Clinton's Attorneys to Starr

The following is a copy of the complaint letter sent by President Clinton’s lawyer, David E. Kendall, to Independent Counsel Kenneth Starr.


Letter From Clinton's Attorneys to Starr

February 8, 1998


Dear Judge Starr:

The leaking by your office has reached an intolerable point. The covert dissemination of both accurate and inaccurate information by your staff violates Rule 6(e) of the Federal Rules of Criminal Procedure, case law, Department of Justice Guidelines, rules of court and well-established ethical prohibitions. At your press conference yesterday, you paid lip service to your legal and ethical obligations, remarking that you could not respond concerning the status of “someone who might be a witness” because “that goes to the heart of the grand jury process . . . . Those are obligations of law; they’re obligations of ethics . . . . I am under a legal obligation not to talk about facts going before the grand jury . . . [an obligation that is] centuries old. It was ordained at the founding of the American republic. Part of that [obligation] is, guard the confidentiality of that [process].” At your press conference today, you again acknowledged the gravity of this matter.

Events of recent days make a mockery of your earnest verbal professions. Far more accurate is your candid recognition that “I regret that there have been instances, so it would appear, when that rule has not been abided by.” “So it would appear” hardly does justice to the deluge of leaks which quite obviously stem from your office. In the past four years, I have written you in confidence about the various leaks that have occurred from your office. I am making this letter public today because of the calculated tactic your office is now employing of selectively releasing both information and falsehoods, in an attempt to pressure, manipulate, and intimidate witnesses and possible witnesses, affect public opinion in your favor, and cause political harm to the President. I intend to seek judicial relief from these tactics, including contempt sanctions, as soon as practicable, under Rule 6(e), Barry v. United States, 865 F.2d 1317 (D.C. Cir. 1989), and other available legal doctrines.

The appalling disregard for the legal and ethical requirements of grand jury and investigative confidentiality and the cynical dissemination of information and misinformation from your office leads me to believe that you have lost control. These leaks are deeply unfair and prejudicial. You have a solemn duty to ferret out these leaks and regain command and control of your staff. The leaks erode a fundamental and venerable principle of the grand jury (an investigative body enshrined in the Bill of Rights to the Constitution) that investigations shall be conducted in secret so that those suspected but not charged with crimes will not have their reputations besmirched, without having a forum in which to cleanse those reputations.

A report on Wednesday’s NBC Nightly News / illustrates, however, what is now commonplace—legally protected grand jury material strategically leaked from your office. Matters have gotten so out of hand that NBC’s report on the immunity negotiations between your office and Ms. Lewinsky looks very much like an Independent Counsel press release. In the space of three paragraphs, the NBC correspondent refers directly at least four times to “sources” in your office. For example, she states that “sources in Starr’s office have told NBC News that the information Lewinsky’s lawyers were offering was simply not enough” and that “[s]ources in Starr’s office . . . believe the [talking points] instructions came from the White House.”

Perhaps more pernicious even is a leak two days ago to The Wall Street Journal, purporting to recount the grand jury testimony of a White House steward, Mr. Nelvis. We now know that the leak—attributed to “two individuals familiar with his testimony,” which is obviously a very narrow group centered in your office —is “totally false.” Yet the report was nonetheless spread widely as though true, and was extremely damaging both to the President and Mr. Nelvis. It also broadcast to the world the kind of evidence you would like to gather, inviting copycat “testimony” and the like. That’s a dangerous and destructive game to play in an alleged search for the truth. It’s why these investigations must be conducted in secret and why the leaks must stop.

Today’s news reports offer more of the same. A front-page article in today’s New York Times is headlined “AIDE’S STATEMENTS ARE SAID TO DIFFER FROM PRESIDENT’S”, and the passive voice (”are said”) tells all. The article, a flagrant leak from your staff, purports to report what the President’s personal secretary, Ms. Betty Currie, has told “investigators” (i.e., your agents), and these statements are sourced to “lawyers familiar with her account” (i.e. your legal staff). This combination is repeated throughout the article:

And so on. Mrs. Currie’s own lawyer has stated that, except for the one sentence statement explicitly attributed to him in the article, this information did not come from Mrs. Currie or her attorneys. In context, the “lawyers familiar with the inquiry”, so frequently quoted in the article, are plainly members of your staff.

The NBC report, The Wall Street Journal account and today’s New York Times article are not anomalies. Over the past two weeks, there have been numerous such selective leaks directly traceable to your office—the accuracy of which, I might add, are often highly suspect. For example (and this is by no means a complete or exhaustive list):

There are many other press statements that are equally troubling:


As I have repeatedly pointed out previously in my letters over the past four years, and as you must be aware, it is illegal and wrong to attempt to manipulate witnesses and possible witnesses, the press, the public and our system of justice by selectively leaking information—accurate or otherwise. Rule 6(e) of the Federal Rules of Criminal Procedure, the ABA Standards for Criminal Justice Relating to Prosecution Function and Fair Trials, the National Prosecution Standards published by the National District Attorneys Association, and the Rules of Professional Conduct for the District of Columbia, among other professional codes of conduct, all forbid leaks of purported confidential information of the kind that have sprung from your office.

Rule 6(e)(2) of the Federal Rules of Criminal Procedure prohibits government attorneys, including attorneys from the Office of the Independent Counsel, from disclosing “matters occurring before the grand jury.” Id. Rule 6(e) codifies the “long-established policy that maintains secrecy of the grand jury proceedings in federal courts.” United States v. Sells Eng’g Inc., 463 U.S. 418, 424 (1983) (citations omitted). The Rule 6(e) bar against disclosure is construed broadly to encompass “events which have already occurred before the grand jury,” Lance, 610 F.2d 202, 216-217 (5th Cir. 1980), as well as “matters which will occur,” id. at 217, including “the strategy or direction of the investigation,” Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 869 (D.C. Cir. 1981). It includes “anything which may tend to reveal what transpired before the grand jury,” id. at 216 (citations omitted) (emphasis added), the identities of the witnesses or jurors, the substance of the testimony, and the deliberations or questions of the jurors, Senate of the Commonwealth of Puerto Rico v. United States, 823 F.2d 574, 582 (D.C. Cir. 1987). This prohibition covers not only testimony directly in the grand jury but also statements made to investigators, particularly when the witness is speaking after receipt of a subpoena. See, e.g., In re Grand Jury Proceedings (Daewoo), 613 F. Supp. 672, 682 (D.Or. 1985).

One of the essential purposes of grand jury secrecy is to avoid undeserved injury to the reputation of those who are being investigated. See, e.g., Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979). As the Supreme Court has emphasized, “grand jury secrecy . . . is as important for the protection of the innocent as for the pursuit of the guilty.” Sells, 463 U.S. at 424 (citations omitted). Indeed, federal courts have described a Rule 6(e) violation by a government attorney as a “pernicious evil,” which must be “vigorous[ly] investigat[ed]” and punished. In re Grand Jury Investigation, 748 F. Supp. 1188, 1212 (E.D. Mich. 1990); see also United States v. Helmsley, 866 F.2d 19, 22 (2d Cir. 1989).

The public disclosure of grand jury and investigative information not only violates Rule 6(e)(2), it runs afoul of ethical and professional standards of conduct for attorneys, prosecutors, and executive branch officials. The ABA Standards for Criminal Justice Relating to the Prosecution Function provide that “[a] prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.” Id., Standard 3-1.4(a) at 12-13 (3d ed. 1993). A prosecutor is also responsible for exercising “reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor” from making such a statement. Id., Standard 3-1.4(b). The ABA Standards for Criminal Justice Relating to Fair Trial and Free Press and the District of Columbia Rules of Professional Conduct contain similar prohibitions. See ABA Standards for Criminal Justice Relating to Fair Trial and Free Press, Standard 8-1.1 (3d ed. 1992); District of Columbia Rules of Professional Conduct, Rules 3.6, 3.8 (1995).

Furthermore, both the United States Attorney’s Manual and the Standards of Ethical Conduct for Employees of the Executive Branch forbid the dissemination of such nonpublic information. See United States Attorney’s Manual,  45.735-10 (”No employee shall use for financial gain . . . , or make any other improper use of, whether by direct action on his part, or by counsel recommendation, or suggestion to another person, information which comes to the employee by reason of his status as a Department of Justice employee and which has not become part of the body of public information.”); 5 C.F.R.  2635.703(a) (”An employee shall not . . . allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.”) (1997).

It’s time for action on these leaks, not words. Simple fairness demands that they cease immediately.


David E. Kendall


Source:   ABCNews.Com.