For Clinton, Lawyer, Leaks to Media Smack of Being ‘Illegal’

When is a leak to the media illegal?

President Clinton and his lawyer, David E. Kendall, accused their legal opponents Friday of “unlawful” and “illegal” leaks of the accounts of Clinton’s conduct provided by his personal secretary, Betty Currie.

However, lawyers and 1st Amendment experts said that in most court cases and investigations, the passing of information to a reporter is perfectly legal--even when it involves a president and even if, as the White House asserted in the case of Currie, the information is false.

There are exceptions, and two are relevant to the investigation of allegations that President Clinton had an affair with Monica S. Lewinsky, the former White House intern, and then urged her to cover it up.

The judge presiding over Paula Corbin Jones’ sexual harassment lawsuit against Clinton has forbidden the participants from talking about that case.

Moreover, under the Federal Rules of Criminal Procedure (section 6E), grand jurors, attorneys for the government and their colleagues or assistants cannot disclose matters occurring before a grand jury.

That would apply to the Whitewater grand jury that is hearing evidence gathered by independent counsel Kenneth W. Starr on whether Clinton urged witnesses to conceal his relationship with Lewinsky. Currie appeared before that grand jury Jan. 27.

*

But even the exceptions have exceptions. For example, Currie could talk about what she said in the hearing. And others who figure in the grand jury’s probe, including Clinton, presumably would be allowed to talk about himself and his actions as they relate to the investigation.

“I don’t think it’s prohibited for him to speak to the media,” said Philip Heymann, professor at Harvard Law School. “Generally, it’s considered unwise, but I don’t think it’s improper to say anything about your own behavior.

“I don’t think it would be constitutional to forbid anybody from talking about what they’ve done themselves,” he added.

Or, as 20-year legal veteran Rikki Kleiman, co-host of Cochran and Co. on Court-TV, put it: “The worst thing this president could probably do is to dignify this investigation by commenting on it, but I know of no legal prohibition that keeps him from doing so.”

Still, these and other experts said that the federal law does make it clear that members of Starr’s special investigation are required to keep any details of grand jury testimony out of the public eye.

This federal rule also means that if one of Starr’s prosecutors talks to another person, technically they are both forbidden from releasing information learned in the grand jury room, lawyers said.

“There is a disincentive for the prosecutors to leak because the federal court has much more power over them, to punish them,” said Bruce Sanford, a news media lawyer in Washington. “The likelihood is always that the prosecutors are the least likely to leak about thegrand jury.”

But what if the information comes from a previous investigation or from an inquiry that did not take place before the grand jury? Several legal experts suggested that Starr’s investigators could be leaking from exchanges with witnesses outside the grand jury room.

Also, the stories Friday about Currie’s testimony made it unclear where the information came from. The New York Times story, for instance, quotes “lawyers familiar with [Currie’s] account” and said that she had revealed details to “investigators.”

That vagueness did not stop Clinton’s personal lawyer, David E. Kendall, from releasing a letter Friday to Starr complaining that “the leaking by your office has reached an intolerable point.”

The letter also accused the special prosecutor of an “appalling disregard for the legal and ethical requirements of grand jury and investigative confidentiality.”

Since the Lewinsky story first broke slightly less than three weeks ago, White House officials have sought to target Starr’s office as the source for much of the information in news accounts that cited “sources.”

Some of the information made available to the press, however, was in the hands of more people than Starr. For example, tapes of Lewinsky claiming that she had an affair with the president and that he urged her to lie about it could have been passed to reporters from the woman who taped the calls, her lawyers or possibly even her associates.

But White House officials clearly became more upset Friday about possible leaks when the New York Times and Washington Post reported accounts of the testimony from Currie. Starr said that he was trying to learn whether the information had come from his shop.

*

“I do not have an explanation. I’m very concerned,” he said. “If there was an act of unprofessional activity, I am confident we will find it out.”

Such protests, however, sound altogether too familiar to many in Washington, where most information filters swiftly from the government’s inner circles to the front pages or the evening news via news leaks.

“This is crazy,” said Jane Kirtley, executive director, Reporters Committee for Freedom of the Press. “Let’s face it. Everyone in Washington leaks, and especially something like this--a strategic leak--it’s just part of the dance.”

Part of the demand for secrecy, she said, is by both sides so that they can “control what gets out.”

“It’s so Byzantine, “ Kirtley added. “The mind reels.”