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| LEAKING THE STORY? | |
 November 18, 1998 
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TERENCE SMITH: Since day one of the Lewinsky saga, Kenneth Starr has been mostly silent regarding the specifics of his investigation into the conduct of President Clinton. KENNETH STARR: The reason for confidentiality is to protect the reputations of individuals and privacy, and so I just can't comment. TERENCE SMITH: Nevertheless, the office of independent counsel has been cited numerous times as a source in print and television accounts of the probe. SPOKESPERSON: Sources in Starr's office have told NBC News -- SPOKESPERSON: Two sources familiar with the independent counsel's investigation tell CBS News --
PRESIDENT CLINTON: The independent counsel investigation moved on to my staff and friends, then into my private life. And now the investigation itself is under investigation. TERENCE SMITH: Since June, the independent counsel and his prosecuting team have been under investigation for allegedly leaking secret grand jury material to journalists. It's a serious charge, a charge that could place Starr in contempt of court.
TERENCE SMITH: But unlike the coverage of Starr's investigation of President Clinton, the investigation of Starr and the alleged leaks has rarely been front page news. Media, after all, have been the beneficiaries of those leaks. DAVID KENDALL: The independent counsel appears to have acknowledged some of these leaks but that office is out of control.
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The leakers and the leakees |
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TERENCE SMITH: Now for a closer look at the relationship between leakers and leakees. In this case reporters, we're joined by Jeffrey Toobin, a legal analyst for ABC News and a staff writer for the New Yorker, also Evan Thomas, the assistant managing editor of Newsweek, who also reports on Ken Starr; and Steven Brill, the editor in chief of a monthly magazine about media issues called Brill's Contact.
STEVEN BRILL: Well, I'm just saying that this is a wonderful irony here. We have in Washington right now today a supremely powerful, high federal official, whom a judge has said probably committeed what she considers to be crimes. She's laid out the 24 instances, and yet, this is one investigation that has no leaks. This is one investigation, unlike all other aspects of the Monica Lewinsky case, where the press isn't running around, taking the judges' obligations as a road map and trying to interview everybody, trying to find out everything it can. The other irony is that what the judge laid out was that Ken Starr seems to have done what the program has done, which is he has redefined the crime - in this case leaking - in order to defend himself against it. By redefining it, he's saying he didn't do it, when, in fact, everybody knows - I mean, it is an open secret in Washington among the press corps that Jackie Bennett, who's his principal deputy, was spending much of his time during the first week of the investigation leaking like a sieve. I mean, everybody knows that. TERENCE SMITH: And you're saying reporters are not covering this because they are the beneficiaries of those leaks?
TERENCE SMITH: Evan Thomas, how do you plead? EVAN THOMAS: That's not really true. Yes, there's - Brill's on to a conflict, no doubt about it. And he's probing a soft spot. Nonetheless - TERENCE SMITH: And the conflict is? EVAN THOMAS: And the conflict is we don't like to report on our sources and we especially don't like to report on reporters' sources. So there's no question that there is a problem there, and he's right to pursue it. But, having said that, Newsweek has definitely covered Starr. We've - the special masters doing it - we did a story last March called "No Adult Supervision" about the Starr office. We have a story in this week. I don't think that we've under-covered Starr. |
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| One reporter
deserves another... |
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TERENCE SMITH: And Jeffrey Toobin, what's your take on this?
STEVEN BRILL: -- Starr has defined it in two different ways, but the fact is the judge in the case has defined it very clearly as including what witnesses tell investigators just before they go into the grand jury - TERENCE SMITH: There's an abject difference. STEVEN BRILL: The higher court, the court of appeals through the district has defined it that way, and in terms of the relevant courts and the relevant jurisdiction, there really isn't much of a debate and Ken Starr himself admitted that after my article came out. He said - oh, of course, he doesn't define it as narrowly as Jeff just did, but he has changed his mind again apparently, so he's all over the place, but the courts are very clear. Otherwise, you'd have a giant loophole, which is you could tell reporters, well, this witness told our people this, and yet it's probably what he said when he went into the grand jury. I mean, why wouldn't it be? That's what he told us just before he went in. That would be a giant loophole that would defeat the whole purpose of the law. TERENCE SMITH: All right. Evan Thomas, is it realistic to do what Steven Brill is suggesting, assign one reporter to go probe the leaks or stories of another?
TERENCE SMITH: You haven't done it, I take it? You have not assigned a reporter to go after specifically the leaks or origins of other reporters? EVAN THOMAS: We have not assigned a reporter to investigate leaks by other news organizations. We have assigned a reporter to cover Starr, and under that umbrella comes Starr's leaks. John Alter wrote a column about Starr's leaking early on where he took everybody to task. |
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| Tell the world. | ||||||||||||||
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TERENCE SMITH: Jeffrey Toobin, would it be reasonable as Anthony Lewis had suggested, for Democrats on the House Judiciary Committee to ask Ken Starr to release reporters from any confidentiality they may have.
STEVEN BRILL: That's not the question you asked, Terry. The question you asked, Terry, is the right one, which is - and we can ask it probably on the - which is if Ken Starr and Jackie Bennett said publicly and under oath, I hereby release everyone at Newsweek from keeping any confidence for anything we - Mr. Bennett and I - may have told you, you're perfectly free to tell the world; we would like you to tell the world everything we told you - would Newsweek, would Evan Thomas in his colleagues then tell us what are those meetings about that Mike Isikoff had with Jackie Bennett and with Ken Starr, and would he tell us that? TERENCE SMITH: Evan. EVAN THOMAS: I can't answer that. I'm not going to answer a hypothetical. I mean, yes, it sounds tempting, but I have to weigh all - you know - as every editor does - we would weigh a number of considerations to make a decision. TERENCE SMITH: All right. Steven Brill, let me ask you this. Also, in the article you suggest that reporters have functioned as informants to Ken Starr's office. Are you talking about trading information? STEVEN BRILL: Well, I don't suggest that at all. What I report is that Ken Starr suggested it. One of the reasons that he wanted this leaks investigation to be kept secret - and of course one of the great ironies now is that everything else about the Lewinsky grand jury is totally public, except the leaks investigation. He wanted the leaks investigation he said to be kept secret because there is an informant's privilege of confidentiality, he said, referring to the reporters, implying, therefore, that some of these reporters were informants. And I just said in the article, you know, what does that mean, what is he talking about? TERENCE SMITH: Jeffrey Toobin, what do you think it means? JEFFREY TOOBIN: It is a very peculiar remark in - what makes it difficult is that some of the part of the opinion where this is referred to was redacted so we don't exactly know how it came up, but it is a very dangerous business. If any reporter is getting involved in providing information or trading information to a prosecutor's office in return for other information, it certainly - TERENCE SMITH: And would that ever be reasonable by your standards? JEFFREY TOOBIN: I think - trading goes on all the time between sources and reporters. I think it's naïve to think that it doesn't. It is a very murky ethical area. You can get yourself into big trouble, but I think if we're realistic, we know that information begets information, and the trading does go on. But I think a larger point is being lost here. And that is has the public been uninformed about Ken Starr? I think the answer to that is no. Starr has gotten an awful lot of coverage, and there's a reason he's gotten a lot of coverage - TERENCE SMITH: Steve Brill - which is good -
JEFFREY TOOBIN: The press has gotten lots of coverage. You've given it to them, Steve. EVAN THOMAS: But, Steve, I don't think the error here is on the part of the press. I mean, the press is not violating grand jury secrecy. STEVEN BRILL: No, no. The error is whether the press simply took leaks and ran with them without doing anything else and was the press fair in how it used these leaks? As a reporter, writing a book about the Teamsters Union, I was thrilled to get leaks from prosecutors, including leaks of grand jury information. That's not the question. The question is: Once you get that, how do you check it, how do you double source it, what do you do with it? Do you simply run on the air of it? But, as for Ken Starr, you know, if he doesn't like the law, he should write his congressman. That doesn't excuse him if he broke the law. TERENCE SMITH: All right. We'll see if he takes that route. Thank you all very much. |
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KENNETH
STARR: I can't comment on any aspect of our investigation. 
TERENCE
SMITH: Were those leaks? Were they illegal? Kenneth Starr says "no".
But Chief Judge Norma Holloway Johnson says "maybe", citing these reports
and 22 others as apparent violations of federal criminal procedure rule
6-E. That rule prohibits prosecutors from disclosing matters occurring
before the grand jury. 
DAVID
KENDALL, President Clinton's Attorney: These leaks make a mockery of
the traditional rules of grand jury secrecy. 
TERENCE
SMITH: Starr admitted to publisher Seven Brill in April that he had
briefed reporters on background concerning the progress of his investigation.
Brill's interview with Starr -- part of a 25,000 word article entitled
"Pressgate"-- also made it into the catalog of Judge Johnson's greatest
leaks. Starr denied any wrongdoing in a 19-page rebuttal to Brill. In
a court order, Judge Johnson charged a special master, whose name was
kept confidential, with the task of determining whether the independent
counsel had indeed leaked and leaked illegally. According to Newsweek
magazine, the special master is a senior federal appeals court judge,
John Kern III, proving that not even the supposedly secret probe into
prosecutorial leaking is itself leak-proof. 
TERENCE
SMITH: Steven Brill, let me ask you first. In your current issue you
have an article accusing the press of ducking the controversy over Ken
Starr and the investigation into him. What exactly are you alleging
here, a conspiracy of silence? 
STEVEN
BRILL: Well, it's a difficult thing. It's not quite so simple, but it
would be impossible, for example, for a reporter at Newsweek
to cover leaks in Newsweek, because Newsweek has presumably
promised its sources that Newsweek, the magazine, won't reveal
them. But it-that doesn't mean that Newsweek could not assign
a reporter to cover possible leaking at Time or the Washington Post
or the New York Times or lots of other places, and that hasn't
been done. 
JEFFREY
TOOBIN: Well, I do think that there is a conflict here, but also there
is an underlying legal dispute which has never really been settled even
by the courts, which is what exactly is grand jury material? Starr,
himself, seems to have been defining the subject all over the map. The
question is: Is grand jury material just what goes on in the grand jury
room, itself, which is what Starr said at one point, and which is what
I think is correct, or is it anything relating to the investigation,
interviews that the FBI does outside the grand jury room? I think that
kind of material is not grand jury material. So I don't think that's
an illegal leak if it's disclosed. Starr seems to have defined it several
different ways. I don't think we in the press should be in the business
of accusing prosecutors of illegal activity when, in fact, I think it's
in the public interest for us to be reporting on what prosecutors do.
EVAN
THOMAS: Probably not, not to plug your own reporters' leaks. Now, you
could assign a reporter to go plug somebody else's leaks. There' some
hesitation to do that, because there is a kind of cozy community among
- certainly in Washington. Nevertheless, you can assign other reporters
to write about it. I mean, the person who we had cover Starr is different
from the person who's been covering Lewinskygate. Like Dan Clibeman
sort of covers Starr, himself. Mike Isikoff has been doing Lewinskygate.
So you can sort of put different hats on different reporters. There
are some inhibitions here. It is a tricky area. 
JEFFREY
TOOBIN: Absolutely. And I think certainly the subject of leaks is likely
to come up in the impeachment proceedings. But, remember, this business
of the - the duty we owe to our sources is not only a moral obligation
but it's a legal obligation. In a famous case out of Minnesota, newspaper
reporters there were have held to have breached a formal contract when
they disclosed the name of a source. 
STEVEN
BRILL: It's the press that hasn't gotten the coverage.