White House Strategy In Trying to Plug Leaks
Clinton lawyers accuse independent counsel of passing on sensitive details. But proving it will be tough.
BOSTON — President Clinton's personal lawyer is hoping to further undermine the credibility of Kenneth Starr by pressing a federal judge to investigate whether the office of independent counsel leaked sensitive details of its investigation of the president.
Attorney David Kendall is also hoping to slow the pace of Mr. Starr's inquiry, while putting the special prosecutors on notice that any future leaks to the media would be fully investigated.
But if history is any guide, even if leaks did come from Starr's office, Mr. Kendall's move is unlikely to result in sanctions against the prosecutors, legal experts say.
That's because it is extremely difficult to prove a leak case. Legal experts could not recall a single instance when prosecutors had been found guilty of leaking.
This is not to suggest that prosecutors never leak secret grand jury information. Rather, it only illustrates the near impossibility of proving it.
First, Kendall must convince a federal judge that there is direct, credible evidence that the substance of certain news accounts came exclusively from prosecutors. The proof must demonstrate, in effect, that the information was not available from any other source.
Then he must identify which prosecutor, staffer, or investigator in Starr's office is guilty of leaking the information.
Kendall can't expect any help from members of the media in his campaign to expose Starr's office as a sieve. News reporters are the direct beneficiaries of leaks and as a matter of journalistic ethics will insist that the identity of their sources - including any possible sources in Starr's office - must be protected.
That means, experts say, short of someone in Starr's office confessing, Kendall will face an uphill battle.
Even if the judge ordered Starr's entire office to submit to polygraph exams and someone flunked, it would not amount to evidence that a leak occurred. Because of their unreliability, so-called lie detector results are not accepted as evidence in court.
Regardless of the outcome of the investigation, some political observers say just leveling the leak charge assists the White House's broader strategy of undercutting Starr's credibility by portraying him as a vindictive, partisan prosecutor willing to smear the president. Polls suggest that strategy is working.
There are other possible benefits to the White House, as well. Some experts say if Kendall's accusations are credible enough to convince the judge to order a series of hearings, the move will tie up limited resources inside Starr's office, resources that would have been focusing on advancing the investigation of the president.
"If nothing else [Starr's office] is going to have to respond to those [leak] papers in court. That would be a serious distraction for the independent counsel and his staff," says James Liebman, a law professor at Columbia University Law School.
At issue is whether information contained in secret testimony to the grand jury investigating the president and former White House intern Monica Lewinsky is being disclosed by prosecutors. White House officials complain that such leaks sparked a media frenzy in Washington.
By law, prosecutors, grand jurors, and other staff members are forbidden from disclosing any details of grand jury testimony.
The intent of the law is to protect the accused by upholding the principle that all Americans - even the president - are innocent until proven guilty.
Kathleen Clark teaches legal ethics at Washington University Law School in St. Louis. She says it would be "very serious" if the leak allegations against Starr's office were substantiated.
"One of the things that really struck me about all this leaking is how quick many of us were to assume the allegations were true," Ms. Clark says. "In the jury of public opinion we can just see how prejudicial these leaks are and therefore how these leaks do not promote justice."
While prosecutors and other staff members are sworn to secrecy on grand jury matters, witnesses who appear before the grand jury are free to reveal the full extent of their testimony.
This is often the most fruitful source of information for journalists covering on-going grand jury investigations. And it explains why there is often confusion during such investigations about where the media gets its information.
The issue is further clouded in the Lewinsky matter because lawyers for the president are attempting to systematically debrief every witness who appears before the grand jury. In the process of the debriefings, other lawyers, working both inside and outside the White House, have become privy to detailed accounts of grand jury testimony.
It is the kind of information that could get a prosecutor fined, fired, or even jailed if he or she disclosed it. But if the same information is passed from a grand jury witness to the press there is no legal prohibition on that disclosure.