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Court absolves Whitewater prosecutors of contempt charges

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  1. Protecting Sources and Materials
    NMU         D.C.

    NMU         D.C. CIRCUIT         Confidentiality/Privilege         Oct 4, 1999    

Court absolves Whitewater prosecutors of contempt charges

  • The office of Whitewater independent prosecutor Kenneth Starr did not violate grand jury secrecy laws by revealing its intent to seek an indictment against a sitting president

In early September, a three-judge panel of the U.S. Court of Appeals in the District of Columbia (D.C. Cir.) unanimously ruled that the office of Whitewater independent prosecutor Kenneth Starr should not have to face contempt of court charges because Starr’s staff did not violate grand jury secrecy laws by revealing that it was considering seeking an indictment against President Clinton while he remained in office.

The court’s unsigned opinion states that revelations about who might be indicted are not “matters occurring before a grand jury” and therefore did not violate federal criminal procedure rules. The court found that the rules never have been read “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.’ ” However, the court did not decide whether criminal contempt charges can be brought against Starr’s office.

The three-judge panel consisted of Patricia Wald, Lawrence Silberman, and Karen LeCraft Henderson, who were appointed to the court by Presidents Carter, Reagan and Bush, respectively.

The case concerned a Jan. 31, 1999 New York Times article that 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 article went on to state that some attorneys on Starr’s prosecutorial staff wanted to seek an indictment of Clinton on perjury and obstruction of justice charges, including lying under oath in his deposition in the Paula Jones matter and in his grand jury testimony.

The court ruled that the article did not contain “material that is afforded the broadest protection from disclosure.”

Federal district judge Norma Holloway Johnson had issued an order on her own motion in mid-July directing the Department of Justice to bring contempt charges against Starr’s office. The DOJ “responded immediately” by sending a letter to the district court requesting that the court withdraw its mandate, and Starr’s office then appealed Johnson’s order in late July.

The case began the day after the article in question appeared when the White House and President Clinton filed a joint motion to Johnson requesting that the court hold Starr’s office in contempt for disclosing grand jury material.

(In re: Sealed Case No. 99-3091)


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