Starr May Have Violated Secrecy Law, Judge Decides

A federal judge has concluded that independent counsel Kenneth W. Starr or his prosecutors may have violated grand jury secrecy rules by leaking information to the media about the Monica S. Lewinsky investigation, according to court papers released Friday.

The U.S. Court of Appeals here ordered further investigation by the court of Chief U.S. District Judge Norma Holloway Johnson--who agreed with President Clinton’s lawyers that the violations may have occurred--to determine how significant and how widespread the leaks have been.

Johnson, who supervises the Lewinsky grand jury, said in court papers that “the serious and repetitive nature of disclosures” of secret grand jury material justifies a “show-cause” hearing, at which Starr will have to prove that the leaks did not come from his office or that any such leaks have been inconsequential.

Starr denied any violations. In a statement, the independent counsel said that his office “has not violated Rule 6-E and we welcome the opportunity to demonstrate that fact to the district court.”

If major violations of grand jury secrecy are uncovered, Johnson could find Starr or individual staff members in contempt of court, the court papers said. In addition, Atty. Gen. Janet Reno could decide to fire Starr on these grounds, officials said.

Grand jury investigations are supposed to be conducted in secret. Rule 6-E of the Federal Rules of Criminal Procedure makes it a crime for a government lawyer to disclose “matters occurring before the grand jury.”

It is not entirely clear, however, what is covered by this provision. Starr has interpreted the rule narrowly, saying that his prosecutors may brief reporters on the progress of the investigation and rebut inaccurate information. White House lawyers have suggested that any conversations between the prosecutor’s office and reporters are unethical and illegal.

For the present, the rulings by Johnson and the appellate judges have tarnished the reputation for professionalism that Starr has sought to project to the public but they are likely to have little immediate effect on his continuing investigation.

Starr did not challenge Johnson’s decision that he must demonstrate that his office has not engaged in any misconduct involving grand jury information. Starr acknowledged, as did the judges, that the legal requirement for proving leaks of grand jury information is quite low.

As proof of independent counsel violations, the president’s lawyers can cite press clippings or transcripts of television news stories citing “sources in Starr’s office” or something similar.

Starr, however, noted that “newspaper articles and media reports supporting the allegation may be capable of various interpretations--they may even be erroneous.

“Nonetheless, under the law of this circuit, the courts must presume that the media reports are entirely accurate and must accept them as true if they are ‘susceptible to an interpretation’ that the information contained in them was furnished by the government.”

Starr added that this “minimal requirement is not a finding that Rule 6-E has been violated.”

The leak investigation has sparked a furious behind-the-scenes battle between Starr and Clinton lawyer David E. Kendall. The prosecutor, who wanted to question the president under oath, could have faced the prospect that he would be questioned himself under oath by the president’s lawyers.

But, according to the court papers, the appellate court accepted Starr’s argument and overruled a ruling by Johnson, saying that the independent counsel cannot be questioned directly by Kendall. The appeals court agreed with Starr that such a procedure could compromise his investigation because it could give Kendall insight into the grand jury investigation.

Instead, the appeals court said that Johnson should appoint a special master to investigate the leaks or question members of Starr’s staff herself in the secrecy of her courtroom.

Kendall said that “we look forward to a speedy and thorough investigation of illegal leaking,” adding that “the endemic and casual disclosures of grand jury information, which have characterized the past seven months of the OIC’s investigation, are highly unprofessional and utterly indefensible.”

White House officials, hungry for any victory in Starr’s investigation of the president’s relationship with Lewinsky, declared that the court decisions demonstrated wrongdoing by Starr’s office.

James E. Kennedy, a spokesman for the president, said that the rulings “are significant because for the first time in the 20-year history of the Independent Counsel Act a federal court has found prima facie evidence of potential criminal wrongdoing by an independent counsel.”

Kennedy added that “given the grave nature of this unprecedented decision by the court, we hope that Mr. Starr and his colleagues will cooperate fully with this investigation of criminal wrongdoing.”

Rahm Emanuel, a senior presidential advisor, said that “the reason you have these [leak] investigations is that the investigation by Starr is not being conducted objectively but on a partisan pursuit. And when you do that you make mistakes.”

Emanuel said he had “no idea” whether Reno might decide to fire Starr. By federal law, the attorney general may dismiss an independent counsel “for cause” but must report her findings to Congress.

The dispute between Kendall and Starr has been brewing for months. In February, Kendall filed a complaint against Starr’s office, citing numerous press accounts that appeared to originate with the office of independent counsel.

For example, a report on the “NBC Nightly News” cited “sources in Starr’s office” describing the testimony of a witness who was about to appear before the grand jury. Another CBS News story cited “investigators” in Starr’s office who had checked out the reliability of Linda Tripp, the woman who secretly taped phone calls from Lewinsky.

Later, journalist Steven Brill quoted Starr as saying that Jackie Bennett Jr., a deputy independent counsel, regularly briefed reporters on the investigation.

On June 19, Johnson agreed with Kendall that these news stories pointed directly at Starr’s office as the source of illegal leaks. She ordered the prosecutors “to show cause why [they] should not be held in contempt for violation” of the secrecy rules.

Times staff writer Elizabeth Shogren contributed to this story.

Join a continuing discussion about the Monica S. Lewinsky matter on The Times’ Web site. Go to: https://www.latimes.com/scandal

* SPECIAL TREATMENT: Unlike others linked to Clinton, Monica S. Lewinsky is safe from White House attacks. A8