Starr’s office did not breach grand jury secrecy rules

In a dispute in which independent prosecutor Kenneth Starr and the Justice Department aligned themselves against President Clinton and the White House, a three-judge panel of the U.S. Court of Appeals for the District of Columbia (D.C. Cir.) unanimously ruled in early September that the Justice Department did not need to prosecute Starr’s office on contempt of court charges. The court said Starr’s office did not violate grand jury secrecy laws by revealing that it was considering seeking an indictment against Clinton.

The court’s unsigned opinion states that revelations about who might be indicted do not constitute “matters occurring before a grand jury,” which federal rules of criminal procedure require prosecutors to keep confidential.

During 1998, one of Norma Holloway Johnson’s duties as chief judge of the federal District Court in Washington, D.C., was to oversee the grand jury that was hearing evidence presented to it by independent counsel Kenneth Starr. Throughout his investigation, Starr was bound by the Federal Rules of Criminal Procedure, which mandate that “an attorney for the government . . . shall not disclose matters occurring before the grand jury.”

On Jan. 31, 1999, in the midst of the Senate impeachment trial of President Clinton, The New York Times published a story by reporter Don Van Natta Jr. with the headline “Starr is Weighing Whether to Indict Sitting President.” The article began: “The independent counsel, Kenneth W. Starr, has concluded that he has the constitutional authority to seek a grand jury indictment of President Clinton before he leaves the White House in January 2001, several associates of Mr. Starr said this week.” The story also contained the following passage:

“Inside the Independent Counsel’s Office, a group of prosecutors believes that not long after the Senate trial concludes, Mr. Starr should ask the grand jury of 23 men and women hearing the case against Mr. Clinton to indict him on charges of perjury and obstruction of justice, the associates said. The group wants to charge Mr. Clinton with lying under oath in his Jones deposition in January 1998 and in his grand jury testimony in August, the associates added.”

The day after the article appeared, both the White House and President Clinton asked Johnson to hold the independent counsel’s office in contempt for leaking material for the article. Starr’s office responded that the article only rehashed old news reports and, regardless, did not fall within the definition of “matters occurring before the grand jury.” Starr’s office attached a declaration from Counselor to the Independent Prosecutor Charles Bakaly III to support its assertion that the independent counsel’s office was not the source of the information in the article.

Starr then asked the FBI for help in conducting an internal leak investigation. The FBI has not made the results of the investigation public, but while the investigation proceeded, Starr’s office took “administrative action” against Bakaly, referred the matter to the Justice Department for a criminal investigation, withdrew Bakaly’s declaration, and made the new argument that the criminal procedure rules did not cover the leaked information even though “the [New York Times] article regrettably discloses sensitive and confidential internal . . . information.”

Johnson then concluded that the source of the article may have violated criminal procedure rules by revealing a specific time frame for seeking an indictment, the details of a likely indictment, and the direction a group of prosecutors believed that the grand jury investigation should take.

In mid-July 1999, the Justice Department told the court that it had completed its investigation, the results of which remain under seal. Johnson immediately ordered the Justice Department to serve as prosecutor of civil and criminal contempt charges against both Bakaly and Starr’s office.

Starr’s office objected to the court’s order, and the Justice Department sent the court a letter requesting that the department not be forced to prosecute the independent counsel’s office. But the court did not rule on the objections of Starr and the Justice Department, so on the day before the first scheduled hearing Starr’s office filed an emergency appeal before the U.S. Court of Appeals in Washington, D.C.

Starr’s office argued before the appellate court that the rules do not cover the disclosures made in the article because “matters occurring outside the physical presence of the grand jury are covered only if they reveal grand jury matters.” It also contended that the rules do not cover the independent counsel’s office because they apply only to individuals, and not entities. The Justice Department generally supported the position of Starr’s office about the scope of the rules but added that a court should also consider the context of the disclosures when deciding whether to charge a party with a violation.

In contrast, Clinton and the White House agreed with Johnson’s holding in the District Court that the disclosures in the article concerned “matters before a grand jury,” even though they do not specifically refer to occurrences within the grand jury courtroom.

The federal appellate court agreed with Starr’s office and the Justice Department that the article did not contain disclosures that violated federal rules of criminal procedure. In early September, the court wrote in a unanimous, unsigned opinion that it had never read the rules “to require that a ‘veil of secrecy be drawn over all matters occurring in the world that happen to be investigated by a grand jury.’” The court went on to state that the disclosure of information “coincidentally” before a grand jury that can be revealed “in such a manner that its revelation would not elucidate the inner workings of the grand jury” is not prohibited.

The court noted that this matter concerned disclosures about a prosecutorial investigation as opposed to evidence brought before a grand jury. The court reasoned that “the disclosure that a group of . . . prosecutors ‘believe’ that an indictment should be brought at the end of the impeachment proceedings” did not violate the federal rules.

The court also disregarded the argument of Clinton and the White House that Starr’s office improperly disclosed that an indictment might be sought “not long after the Senate trial concludes” because that disclosure “reflects nothing more than a desire on the part of some . . . prosecutors to seek an indictment at that time, not a decision to do so.” Similarly, the court ruled that the disclosure about what grounds the indictment might be based upon revealed no secret grand jury material.

The court further held that disclosures from Starr’s office about the possible indictment of Clinton for perjury before the grand jury normally would violate federal criminal procedure rules because the leaks reveal the name of a witness who testified. It did not follow the general rule, however, because “the President’s status as a witness before the grand jury was a matter of widespread public knowledge well before the New York Times article at issue in this case was written; the President himself went on national television the day of his testimony to reveal this fact.” (In re: Sealed Case No. 99-3091)