Source Isn’t Protected, So Neither Is Starr

The same politicos and usual suspects who never understood that the only function of any impeachment is not punishment but removal from office now don’t seem to understand that the collapse of impeachment against Bill Clinton does not and should not end a criminal process whose aim is punishment--if indeed a crime has been committed. Even if the crime was committed not by the president but by independent counsel Kenneth W. Starr.

Two investigations of Starr’s tactics now are underway. The first is by the Justice Department to determine whether Starr breached any of the departmental prosecutorial guidelines that bind him. The other and more crucial one for Starr is by a special master appointed by Chief U.S. District Judge Norma Johnson Holloway to determine whether Starr violated criminal law by leaking secret grand jury material to the press.

When the second investigation is over, I believe Atty. Gen. Janet Reno will have no choice but to fire Starr and prosecute him for leaking secret grand jury material. And Judge Holloway also will have no choice but to initiate criminal contempt proceedings against Starr. That is because, in the end, the journalists who were on the receiving end of the leaks will be forced to reveal their source or sources, and among them surely must be Starr and/or his minions.

One bad turn for Starr was the abrupt resignation March 11 of his press flack, Los Angeles lawyer Charles G. Bakaly III, as Starr asked the Justice Department to look into unauthorized disclosures of confidential material from Starr’s office.

Both Starr and Bakaly have a real problem if they are relying on journalistic privilege to protect them from exposure to criminal prosecution. In fact, there is no federal constitutional privilege held by the press to protect its members from the inquiry into who leaked the tidbits from the special grand jury proceedings over which Starr presided, and federal law governs the matter.

In the leading case on the subject, in 1972 the U.S. Supreme Court held that “the right to withhold news is not equivalent to a 1st Amendment exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function. Private restraints on the flow of information are not so favored by the 1st Amendment that they override all other public interests.”

In response to the press claim that refusal to provide a 1st Amendment privilege to reporters would undermine the freedom of the press to collect and disseminate news, the court responded, “This is not what history teaches us.”

There simply is no 1st Amendment press privilege to withhold information in either civil or criminal matters. But there is a qualified press privilege against compelled disclosure of information gathered in the course of press work that requires exhaustion of other sources of information before members of the press may be required to produce confidential sources. That is precisely what Judge Holloway’s special master wants and undoubtedly will get: the identities of confidential press sources who leaked the grand jury materials.

Here is how it will work:

Federal courts apply a three-part test to journalistic privilege, founded on the notion that “some incidental sacrifice of sources of facts needed in the administration of justice” will be compelled when there is “an interest of sufficient social importance to justify” an intrusion into the press function.

Courts decide if there is a “sufficiently compelling need” to overcome the qualified journalist’s privilege. To breach the privilege, one who seeks information from a journalist must demonstrate that “the information sought is relevant, material and noncumulative,” that it is “crucial to the maintenance of . . . legal claims” and that “the requesting party has exhausted all reasonable alternative sources” of the information.

Here, the need is compelling--was federal grand jury secrecy violated? Whether Starr leaked is relevant and important to the special master’s inquiry and, unless the leakers step up and claim their own indictment, there will be no other source except the journalists from whom to get the information.

Application of the test to the inquiry of Starr’s alleged leaking of grand jury materials undoubtedly will compel the journalists who wrote stories including grand jury materials to divulge their sources.

Then we will see Starr return to private life, perhaps as defendant Starr.