[Congressional Record Volume 144, Number 83 (Tuesday, June 23, 1998)]
[Extensions of Remarks]
[Pages E1205-E1206]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MR. KENDALL'S RESPONSE TO MR. STARR'S PRESS RELEASES CONCERNING THE
CONTENT MAGAZINE ARTICLE
______
HON. JOHN CONYERS, JR.
of michigan
in the house of representatives
Tuesday, June 23, 1998
Mr. CONYERS. Mr. Speaker, I ask unanimous consent to enter into the
Record the following letter from the President's attorney, David E.
Kendall, to Independent Counsel Kenneth Starr.
June 16, 1998.
Hon. Kenneth W. Starr,
Independent Counsel,
1001 Pennsylvania Avenue, N.W.,
Suite 490--North, Washington, DC.
Dear Judge Starr: In the past three days, you have issued
two press releases on the subject of leaks from your office.
I think it is appropriate to respond to this public relations
initiative.
In neither of these two press releases have you denied even
a syllable of what the Steve Brill ``Pressgate'' article
quotes you and your staff as saying. You accuse Mr. Brill of
misinterpreting but not misquoting, and that's highly
significant.
Your statements in the Brill article are at breathtaking
variance with your previous public statements about your
duties and actions. Your statements consistently have led the
public to believe you would tolerate no leaks of any kind. On
January 21, 1998, you stated at your public press conference,
``I can't comment on the investigation as a matter of
practice and of law. I just can't be making comments about
the specific aspects of our investigation, including to
confirm specific activity or not. . . . As an officer of the
court, I just cannot breach confidentiality.'' At your public
press conference on February 5, 1998, you stated in a CNN
interview, ``I'm not going to comment on the status of our
negotiations [with Ms. Lewinsky's lawyers] . . . I hope you
understand, especially when you ask a question about the
status of someone who might be a witness, that goes to the
heart of the grand jury process. . . . Those are obligations
of law; they're obligations of ethics. . . . I am under a
legal obligation not to talk about facts going before the
grand jury.'' In your public February 6, 1998, letter to me,
you stated that ``leaks are utterly intolerable'' (your
words, not mine) and you went on to say ``I have made the
prohibition of leaks a principal priority of the Office. It
is a firing offense, as well as one that leads to criminal
prosecution.'' (Emphasis added).
What is so astonishing about your comments in the Brill
article is that they contradict not simply our view but your
own frequently and publicly expressed views both about the
need to put a stop to leaking and your own protestations
about your and your own staff's utter innocence in that
regard.
Your press releases do not, however, address three simple
points (there is much else that could be said, of course).
(1) If you need to talk to the press, why not do so on the
record?
The Rule of the Department of Justice's Criminal Division
promulgated by President Reagan's Assistant Attorney General
in charge of the Criminal Division was: ``Never talk off the
record with the media. If you don't want your name associated
with particular comments or remarks, you shouldn't make them
to media representatives.'' That's a good rule, because it
makes everyone aware of who is making a particular statement,
and it's especially important if what you're really trying to
do is ``engender public confidence'' in your office. What
possible justification do you have for secrecy? It's
irresponsible and (under the circumstance) hypocritical.
(2) You are wrongly applying post-indictment standards of
allowable prosecutorial comment.
Caught flat-footed by the Brill article, you've attempted
to shift your ground by pointing to rules and opinions
regarding post-indictment comment by prosecutors. As you well
know, the standards are different after an indictment has
been brought. At that point, the grand jury has found
probable cause to make a criminal charge, the indictment has
been openly announced, the defendant has significant
procedural rights, including the right to have counsel
appointed who will, among other things be able to respond to
prosecutorial comments. Prior to indictment, the rule is that
grand jury secrecy, a protection designed for witnesses and
persons investigated but never finally charged, mandates
prosecutorial silence and the confidentiality of grand jury
proceedings.
(3) The view of Rule 6(e) that you express in the Brill
article and (now) in your press releases is demonstrably not
the law.
You are now attempting to justify leaking by you and your
Office by claiming that the information your office has
covertly given to the media is not covered by Rule 6(e)
because, in your own words as quoted by Mr. Brill, ``it is
definitely not grand jury information, if you are talking
about what witnesses tell FBI agents or us before they
testify before the grand jury or about related matters. . . .
So, it I a not 6-E.'' (Emphasis in original.) Again, as you
well know, this is not the law of the District of Columbia
Circuit (or, for that matter, any other circuit). In the Dow
Jones case decided by the United States Court of Appeals for
the District of Columbia Circuit on May 5, 1998, that court
summarized the secrecy rules legally applicable to grand jury
investigations. Citing many cases of this Circuit and others
decided over the years, the Court of Appeals emphasized that
Rule 6(e) is to be given a broad
[[Page E1206]]
meaning to encompass much more than simply what transpires
within the four walls of the grand jury room. The coverage of
the Rule ``includes not only has occurred and what is
occurring, but also what is likely to occur. 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.' ''
(Emphasis added.) Your public statements in January and
February accurately state the law, but your statements to Mr.
Brill do not, and the actions of your Office are in violation
of the law.
The media leaks by your Office also violate the ethics
rules for federal prosecutors, see, e.g., DOJ Manual
Sec. Sec. 1-7.510; 1-7.530, which under the Independent
Counsel Act you are obligated to comply with unless to do so
would be ``inconsistent with the purposes'' of the Act.
Complying with the DOJ's anti-leaking guidelines could hardly
be ``inconsistent'' with the mission of your office.
Sincerely,
David E. Kendall.
____________________