Starr Argues for Secrecy in His Dealings With Press

Trying to halt a judge’s investigation into whether he leaked grand jury evidence to the news media, independent counsel Kenneth W. Starr suggested that his contacts with reporters should be treated the same as contacts with confidential informers, court documents show.

Starr argued that he could not disclose evidence of his office’s contacts with reporters “without revealing confidential investigative information,” the documents say.

To bolster the argument, the prosecutor cited a 1981 court case that established an “informer’s privilege” that allows the government to keep secret the identity of a person who furnishes information about criminal activities to protect them from possible retribution.

Starr was seeking to block U.S. District Judge Norma Holloway Johnson’s order that he turn over evidence of his office’s contacts with reporters.

Sections of Starr’s arguments were redacted in the papers released last week that detail the secretly fought battle over alleged leaks.

But legal sources outside the prosecutor’s office familiar with the proceedings said Starr specifically applied the argument to reporters, saying he wanted to keep confidential the information received from reporters and their identities. The legal sources demanded anonymity.

Starr’s suggestion was criticized by two former independent counsels. It also raised concerns among news media experts.

President Clinton’s lawyer scoffed at the argument in his own reply to the court.

Attorney David E. Kendall said most of the examples that Johnson found were evidence of improper leaks that occurred at a time early in the investigation of Clinton’s relationship with former White House intern Monica S. Lewinsky, when prosecutors, not reporters, had the most information.

Starr has denied violating court rules that prohibit prosecutors from disclosing the evidence and proceedings of a grand jury. But Johnson ruled that there was evidence of “serious and repetitive” disclosures and ordered Starr to face a hearing to argue why he shouldn’t be found in contempt.

“If a journalist has information about a killer on the loose and turns it into a cop, there’s clearly nothing wrong with that transmission,” said Marvin Kalb, director at the Shorenstein Center on the Press, Politics and Public Policy.

“But if a reporter, in the course of a Monica Lewinsky-type investigation, plays footsie with the special prosecutor, I think that journalist has crossed the line,” he said.

Two former independent counsels said they never treated reporters as confidential witnesses and would never use the argument to keep from having to tell a court about contacts with such reporters.