Kenneth Starr's admission that he and his staff systematically leaked secret information to favored reporters stands as an irrefutable indictment of the independent counsel. In his zeal to entrap the president while manipulating an all-too-willing media, he has flouted the law governing the grand jury process and violated the rights of witnesses dragged before his massive witch hunt.
For months, Starr has denied that his office was the source of leaks that have served to smear the president, and the reporters who were dependent upon Starr as a source kept his secret. But as it turned out, his megalomania led him to talk to one reporter too many.
Starr concedes that he told editor Stephen Brill that "I have talked with reporters on background on some occasions." Even more damning is Starr's revelation in a 90-minute interview with Brill that Starr's deputy, Jackie Bennett Jr., has spent "much" of his time leaking confidential information to the press. Bennett has "been the primary person involved in that. He has spent much of his time talking to individual reporters," Starr said in an interview to be published this week in Brill's new media monitoring magazine, Brill's Content.
But despite this betrayal of commonly accepted ethics governing the grand jury process, Starr denies that he is in criminal violation of Rule 6-E of the Federal Rules of Criminal Procedure, which states that prosecutors and their staffs "shall not disclose matters occurring before the grand jury." Starr told Brill, "It is definitely not 6-E if you are talking about what witnesses tell FBI agents or us before they testify before the grand jury or about related matters."
Yet the behavior of Starr and his staff is in clear violation of the interpretation of 6-E handed down May 5 by the U.S. Court of Appeals for the region covering Washington: "Encompassed within the rule of secrecy are the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like." The court held that the prohibition covers "not only what has occurred and what is occurring" before the grand jury, "but also what is likely to occur."
Starr claims the right to respond to unfair attacks emanating from the White House. But then why do it secretly, and why did Starr's admitted leaking begin before there was a White House response? In the Brill interview, Starr confesses that on the day the Lewinsky story broke, Bennett spent "much of the day briefing the press."
Starr named three reporters with whom Bennett had talked "extensively" about the case in the past five months--Michael Isikoff, who broke the original story in Newsweek, Susan Schmidt of the Washington Post and Jackie Judd of ABC News. Those reporters, who have done much of the critical reporting on Clinton since, have refused to comment. But they and the others who talked "on background" with Starr are now an essential part of the story that they are covering. If Starr committed a crime, they know it.
Starr's leaking to the media is the issue raised by Clinton's personal attorney, David E. Kendall, in a complaint he filed in January with U.S. District Judge Norma Johnson asking the judge to censure Starr. Johnson, who is overseeing the grand jury proceedings, has not yet issued a ruling in the matter. Yet a score of reporters who have dominated reporting on the case is silent about this all-important aspect.
Since Starr has admitted that he and his staff are among the unnamed sources used in much of the reporting of this case, how can reporters take the position that they are duty-bound to protect the confidence of their source, who in this case is the independent counsel?
For example, Starr said in his interview with Brill that he discussed an article about White House staffer Betty Currie with two New York Times reporters, Jeff Gerth and Stephen Labaton, before it was published. Those are the paper's main reporters covering the Starr investigation. Do they need to protect the independent counsel's reputation as the price of continuing their access to secret information? Just the sort of question they, and any other good reporter, would normally raise. But their boss, New York Times Washington bureau chief Michael Oreskes, told another of his reporters who wrote about the Brill expose that the paper did not discuss its sources.
Perhaps that's why Starr's manipulation of the media went largely unreported until the publication of Brill's exhaustive investigation. It confirms the premise of Brill's magazine: that the media watchdogs do a lousy job of watching themselves.
Robert Scheer is a Times contributing editor. E-mail: firstname.lastname@example.org.