The following is a copy of the complaint letter sent by President Clintons 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; theyre 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 Wednesdays NBC Nightly News / illustrates, however, what is now commonplacelegally protected grand jury material strategically leaked from your office. Matters have gotten so out of hand that NBCs 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 Starrs office have told NBC News that the information Lewinskys lawyers were offering was simply not enough and that [s]ources in Starrs 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 leakattributed 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. Thats a dangerous and destructive game to play in an alleged search for the truth. Its why these investigations must be conducted in secret and why the leaks must stop.
Todays news reports offer more of the same. A front-page article in todays New York Times is headlined AIDES STATEMENTS ARE SAID TO DIFFER FROM PRESIDENTS, and the passive voice (are said) tells all. The article, a flagrant leak from your staff, purports to report what the Presidents 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:
Paragraph 1: President Clintons personal secretary has told investigators . . . according to lawyers familiar with her account.
Paragraphs 4 & 5: Mrs. Currie has told investigators . . . the lawyers said. The lawyers also said . . . .
Paragraph 6: Mrs. Currie has told investigators . . . the lawyers said.
Paragraphs 12 & 17: Mrs. Currie has been extensively interviewed by agents and prosecutors from Mr. Starrs office . . . . According to the account provided by the lawyers, Mrs. Currie said . . . .
And so on. Mrs. Curries 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 todays New York Times article are not anomalies. Over the past two weeks, there have been numerous such selective leaks directly traceable to your officethe accuracy of which, I might add, are often highly suspect. For example (and this is by no means a complete or exhaustive list):
Prosecutors painted a different picture [of Vernon Jordans assistance]. Monica says . . . that she dealt directly with the President, who set the assistance in motion, one lawyer said, speaking on condition of anonymity. [New York Daily News 1/23/98]
There are many other press statements that are equally troubling:
(About the F.B.I. tapes) In these conversations, investigators said, Ms. Lewinsky, sometimes in tears, asked Ms. Tripp to keep silent about what she knew about Ms. Lewinsky and the President. Ms. Lewinsky also told Ms. Tripp that she had lied in her affidavit in the Jones suit, according to a person familiar with the inquiry. [New York Times 1/22/98]
The decision came as Starr issued a flurry of subpoenas seeking witnesses who could corroborate the tales Lewinsky told on the tapes. Among those who received subpoenas yesterday were Betty Currie, Clintons personal secretary, a few other low-level White House aides and several former White House interns who had worked with Lewinsky, according to sources familiar with the investigation. [Washington Post 1/23/98]
[S]ources close to Starr describe a far different episode that dragged on mainly because Lewinsky insisted her mother be present. Although investigators did pressure her to cooperate, sources said, the onetime White House intern spent much of the time waiting for her mother to arrive . . . . [Washington Post 1/24/98]
Starr wanted her to let him monitor her telephone conversations with possible witnesses who could corroborate the tales she told on the tapes, although a source close to the prosecutor insisted he never intended to eavesdrop on Jordan or Clinton. . . . According to sources, Starrs office is unwilling to grant immunity without an explicit understanding of what she would testify. There is also some reluctance to letting Lewinsky off without her agreeing to plead at least to a minor charge, for fear that Clintons lawyers would use that as evidence of a sweetheart deal that enticed her to change her story. [Washington Post 1/25/98]
[P]eople familiar with the investigation said Starr is pursuing what investigators consider credible indications that a Secret service agent or other member of the White House Staff saw Clinton and Lewinsky together under embarrassing circumstances. [Los Angeles Times 1/26/98]
New York Post columnist Neal Travis reported on 1/27 that sources in Starrs office told me yesterday that Starr was drawing up a subpoena for Ronald Perelman, head of Revlon, who put Vernon Jordan on Revlons board. [New York Post 1/27/98]
However, Mr. Starr is balking at granting blanket immunity to Ms. Lewinsky until he is certain that she is a credible witness, lawyers involved in the talks say. . . . In past discussions with Mr. Ginsburg, lawyers for Mr. Starr, reflecting doubts about Ms. Lewinskys reliability as a witness, have said she should take a polygraph exam before they will consider accepting her offer to tell them everything she knows. The difference over the timing of the polygraph exam has become a stumbling block to an agreement between the independent counsel and Ms. Lewinsky, lawyers involved in the case said today. Some members of Mr. Starrs legal team are also concerned that Ms. Lewinskys proffer, the summary of her proposed testimony, does not reflect some snippets of conversations that she claimed to have had with Mr. Clinton on 20 hours of tapes secretly recorded by a friend. But one lawyer insisted that the omissions are not significant. [New York Times 2/2/98]
In his Jan. 17 deposition, Newsweek has learned, Clinton swore he never met alone with Lewinsky after she left the employ of the White House in April 1996. . . . But Newsweek has confirmed that Clinton and Lewinsky did in fact meet last Dec. 28, and investigators are examining the possibility of several other occasions on which the two met alone after her departure from the White House. [Newsweek 2/9/98]
One of her dresses was recently tested, with negative results, said one Federal investigator, who would not say what else might be tested. [New York Times 2/4/98]
One official involved in the discussions about whether Ms. Lewinsky would cooperate with the investigation by Kenneth W. Starr, the Whitewater independent counsel, said prosecutors had set a deadline of Friday at noon for her lawyers to indicate whether she would talk to prosecutors. If the deadline passes without a deal, the official said, Ms. Lewinsky could face prosecution on charges of lying under oath about her relationship with the President. [New York Times 2/5/98]
Officials with knowledge of Mr. Starrs investigation said it was likely he would attempt to use the allegedly conflicting statements by Ms. Lewinsky to compel her to testify about whether Mr. Clinton or Mr. Jordan attempted to obstruct his inquiry. [Wall Street Journal 1/22/98]
People familiar with the investigation said Starr has at least 20 hours of tape recordings between Lewinsky and her former co-worker Linda Tripp, on which Lewinsky repeatedly discusses having an affair with Clinton, although he is not mentioned by name. [USA Today 1/22/98]
Starrs investigators expect Lewinsky to invoke Fifth Amendment rights against self-incrimination. If she refuses to talk, Starr is likely to threaten a criminal indictment to impel her to cooperate, people familiar with Starrs strategy said Wednesday. [USA Today 1/22/98]
Among other things, sources said, Starr is searching for gifts that might show whether there was a relationship, including reports that Clinton gave Lewinsky a dress. He is also seeking evidence that Clinton or Jordan tried to help Lewinsky find a job at the same time they allegedly were urging her silence. [Washington Post 1/22/98]
The former White House intern whose association with President Clinton is now at the vortex of an independent counsels investigation visited the executive mansion numerous times, including at night, in the months after her internship ended, knowledgeable sources said Wednesday. They said that on each occasion, the former intern, Monica S. Lewinsky, was authorized to enter the White House by the presidents personal secretary, Betty Currie. . . . She clearly has visited the White House many times since she has been at the Pentagon, said one official familiar with the matter. She has visited the White House frequently. [Los Angeles Times 1/22/98]
Details spilled out through the day, fueled by more than a dozen tape recordings of the intern that a friend has secretly made, some of them with a hidden F.B.I. tape recorder, said lawyers close to the investigation. Late tonight, F.B.I. agents sought interviews with people whom the intern might have confided in at the White House and at the Pentagon, where she later worked. The subpoenas were said to be seeking White House logs showing when visitors were admitted to the executive mansion. These reportedly were to be cross-checked with detailed records kept by the Secret Service that show the presidents minute-by-minute whereabouts. [New York Times 1/22/98]
Lawyers familiar with the content of some of the tapes said that Ms. Lewinsky told of the President advising her that if anyone asked about the affair, she was absolutely to deny it. In another reported disclosure, Ms. Lewinsky told her friend that Mr. Jordan, the Presidents confidant, took her for a ride in his car and advised her that if she kept quiet, nobody would go to jail. [New York Times 1/22/98]
Sources familiar with the probe said Starr wanted the ex-intern to wear a secret recording device and discuss first with Jordan and then with Clinton why she should lie to Jones lawyers. [New York Daily News 1/23/98]
Sources close to Independent Counsel Kenneth W. Starrs Whitewater investigation said the sticking point [in scheduling Lewinskys deposition in the Jones case] involved specific terms of the immunity dealher proffer. [Washington Times 1/23/98]
Mr. Starrs staff was described as believing it is a foregone conclusion that she will eventually be granted immunity from prosecution for perjury, shielding Miss Lewinsky, 24, from felony charges that she falsely swore in an affidavit that she had no sexual relationship with the president. [Washington Times 1/23/98]
The tapes, according to lawyers and others close to Mr. Starrs inquiry, also quote Miss Lewinsky as saying that Mr. Clinton and Mr. Jordan told her to lie about the relationship during her deposition in the Jones suit. [Washington Times 1/23/98]
[A] source said Starrs investigators searched [Lewinskys] Watergate apartment with her familys permission on Thursday and came away with a variety of personal items, including letters, that they hope might help establish a link between Clinton and the young woman. [Washington post 1/24/98]
According to a source close to the prosecutors, [Marcia] Lewis was puzzled about why they were intent on making a criminal case at all, saying, Whats the big deal? So she lied and tried to convince someone else to lie. [Washington Post 1/24/98]
Another source familiar with the Tripp tapes said they indicate Lewis was aware of her daughters sexual relationship with the president. [Washington Post 1/24/98]
According to sources familiar with the investigation, Lewinsky has said the president gave her a pin and a book of poetry, Walt Whitmans Leaves of Grass, in addition to a dress that previously has been reported. [Washington Post 1/24/98]
Following are descriptions of key discussions recorded on the tapes, information that the Washington Post has obtained from sources who have listened to portions of them. . . . [Washington Post 1/25/98]
Among others, Starrs office is seeking to interview Secret Service agents assigned to the president to ask if they personally observed Clinton and Lewinsky engaging in any intimate acts in the White House in the spring of 1996, according to sources familiar with the probe. Sources said investigators particularly are seeking confirmation of reports they had received that encounters occurred in the presidents private study just off the Oval Office and in the White House movie theater in the East Wing. [Washington Post 1/26/98]
The offer of limited, or testimonial immunity was put on the table by independent counsel Kenneth W. Starr, say lawyers and others close to the expanded Whitewater investigation. [Washington Times 1/26/98]
Just after a Los Angeles Times report cited people familiar with [Starrs] investigation, the article claims sources said Lewinsky told Linda Tripp that she believed she was exiled from her White House job to the Pentagon because she and Clinton had somehow been caught. [Los Angeles Times 1/26/98]
According to lawyers and other close to the Starr probe, Lewinsky yesterday agreed to cooperate with Starr in exchange for immunity. [Washington Times 1/27/98]
A source familiar with the Tripp tapes said that after Lewinsky was subpoenaed by Jones lawyers, she became much more circumspect about what she said about talking or meeting with Clinton. [Washington Post 1/29/98]
The Washington Post published an extensive list of witnesses and documents the Independent Counsel allegedly has thus far subpoenaed. [Washington Post 1/29/98]
Starr is seeking to determine whether Secret Service agents witnessed encounters between Clinton and Lewinsky. Intermediaries acting on behalf of several agents have been in touch with FBI agents working for Starr, sources said. [Washington Post 1/29/98]
It is not known why investigators are interested in Mr. Lindsey, one of Mr. Clintons closest friends. A lawyer involved in the investigation said that Ms. Lewinsky referred to Mr. Lindsey on one of the tapes. [New York Times 1/29/98]
Lawyers familiar with the tapes said that Ms. Tripp told Ms. Lewinsky that if asked, she would have to divulge what she knew of Ms. Lewinskys alleged relationship. The two women also discussed how Ms. Lewinsky, if asked to explain her visits to the White House, could say that she had visited Ms. Currie, one lawyer said. [New York Times 1/29/98]
Most of the evidence presented to the Justice Department on Jan. 15 by Kenneth Starr, the Whitewater independent counsel, in seeking to expand his inquiry focused on the presidents close friend and adviser Vernon Jordan Jr. rather than on President Bill Clinton, according to officials familiar with the deliberations. [Washington Post 1/28/98]
Independent Counsel Kenneth Starrs strategy, said a source close to his investigation, is to have Lewinskys grand jury testimony contradict Clintons sworn deposition in the Paula Jones sexual-harassment lawsuit. [New York Daily News 1/29/98]
According to lawyers and others close to the probe, prosecutors are seeking information on Miss Lewinskys role and that of others in an attempt to obstruct justice and to conspire to suborn perjury in her Jan. 7 affidavit in the Jones case. They continued to negotiate with the interns attorney, William S. Ginsburg, seeking a deal in which she would testify in exchange for a grant of immunity. [Washington Times 1/29/98]
Starrs office is using the Alexandria body to explore some of the events that occurred in Virginia, specifically Lewinskys meetings with colleague Linda Tripp at the Pentagon and at the Ritz-Carlton Hotel in Pentagon City, sources said. [Washington Post 1/30/98]
Lawyers knowledgeable about the tapes contents said that Ms. Lewinsky told her friend Linda Tripp, that President Clinton said he would deny they had a sexual relationship if asked about it under oath and that she could do likewise. . . . One of these lawyers emphasized that the tapes indicated that Ms. Lewinsky, a former White House intern, characterized the Presidents remarks more as a suggestion and not as a directive by any means. [New York Times 1/30/98]
They [the White House] want me to talk to Bruce Lindsey and Im not going to, Tripp told ex-intern Monica Lewinsky, according to sources familiar with a phone conversation Tripp taped. [New York Post 1/31/98]
But other lawyers, including some close to the Starr investigation, say it does not matter whether the statement ever ended up in trial; the point is whether it was material or influential at the time it was spoken. . . . Starrs office said that it does not believe Wrights ruling will have any negative effect on the investigation. While lawyers in his office think they could still prove the Lewinsky and Clinton statements were relevant and material, they are also exploring the possibility of making a case on obstruction of justice, which does not require proof of materiality. [Washington Post 1/31/98]
Lindsey has been subpoenaed to appear before the grand jury investigating the Lewinsky matter, according to one source. The White House refused to confirm whether he has been summoned or whether it will try to prevent his appearance by asserting attorney-client or other privilege. [Washington Post 2/2/98]
Instead she squeezed Jordan: Lewinsky would later tell Tripp, who was wearing an FBI wire at the time, that she had no plans to file the affidavit until Jordan came through with a job, a source told TIME. . . . A source told TIME that Lewinsky also offered, in exchange for Tripps cooperation, to cover Tripps expenses for an out-of town journey and to make a gift of her financial interest in an Australian condo. [TIME 2/9/98]
There is also evidence, Newsweek has learned, of Lewinskys saying that her cooperation in denying allegations of sex with the president was conditional. On the so-called sting tape, made by Starrs staff with FBI agents listening in, Lewinsky declares that she would not allow her written testimony- in which she denies a relationship with Clinton- to be filed in the Jones case unless and until she got a job through Jordan, according to lawyers familiar with the case. I told him [Jordan] that I wouldnt sign the affidavit unless I got the job, she tells her friend Linda Tripp, the lawyers said. [Newsweek 2/9/98]
Monica S. Lewinsky visited the White House about three dozen times after leaving her low level job there to work at the Pentagon in 1996, and she was usually cleared for entry by the Presidents personal secretary, said officials who have either seen or been briefed about White House visitation logs. . . . Officials familiar with the White House logs did not describe Ms. Lewinskys ultimate destination in the White House or the purpose of her visits, including whether she saw the President. One official said the records indicated that Ms. Lewinsky was given clearance to enter the White House on 37 occasions from April 1996 to December 1997. . . . A White House spokesman refused to confirm or deny . . . . [New York Times 2/3/98]
Whitewater prosecutors are focusing on more than 10 of three dozen visits Monica Lewinsky reportedly made to the White House to find ut if she met privately with President Clinton after her 1996 transfer to the Pentagon. Independent Counsel Kenneth W. Starr is seeking to corroborate information from other sources showing she may have met alone with the president, according to two lawyers familiar with questions being asked by prosecutors. There is some information that Ms. Lewinsky met privately with the president on more than 10 occasions, said one lawyer familiar with the ongoing grand jury investigation. Mr. Starr is trying to determine when those meetings took place, and more importantly, why. . . . [Washington Times 2/4/98]
USA Today has obtained a complete copy of the talking points memo that suggests a key witness should change her story in the Paula Jones sexual harassment case against President Clinton. [USA Today 2/5/98]
Starrs office this week questioned a Justice Department lawyer, who had told colleagues he was aware of an agent who reportedly had said he guarded the door of the White House movie theater last summer while Clinton was inside alone with a young woman. [Washington Post 2/5/98]
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 informationaccurate 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 Engg 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 Attorneys Manual and the Standards of Ethical Conduct for Employees of the Executive Branch forbid the dissemination of such nonpublic information. See United States Attorneys 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).
Its time for action on these leaks, not words. Simple fairness demands that they cease immediately.
David E. Kendall
Source: ABCNews.Com.