|OFF THE RECORD|
February 26, 1998
In the past week, Independent Counsel Kenneth Starr has been questioning White House advisers about conversations they may have had with the press. Sidney Blumenthal, a former journalist himself, testified before a grand jury today, but afterwards angrily denounced Mr. Starr's latest tactics. Margaret Warner explores the First Amendment implications of the investigation with a panel of experts.
MARGARET WARNER: Now four views of the First Amendment implications of Kenneth Starr's move. Anthony Lewis is a columnist with the New York Times; Terry Eastland was the Justice Department spokesman during the Reagan administration, he's now the publisher of the American Spectator Magazine and author of a book entitled "Ethics, Politics, & the Independent Counsel"; Floyd Abrams is a defense attorney specializing in First Amendment cases; and Otto Obermaier is a former U.S. attorney now in private practice.
|Anthony Lewis: "It was an attack on our First Amendment rights."|
Tony Lewis, was Ken Starr's move, as critics charge, an abuse of power, an attack on Sidney Blumenthal's First Amendment rights?
ANTHONY LEWIS: I think the crucial thing is that it was an attack on our First Amendment rights. I don't mean the press especially. There's a real problem for the press in thinking that every time you talk to some government official he may be subpoenaed to say what happened in your conversation, what was said. That's really chilling. But I think it's the country's First Amendment rights because we have a system here in which you have open debate, and lots of things are said in debate that are abusive, false, misleading, and out of that turmoil in America comes the truth, or comes the policy, whatever it is. And it's really amazing to me that Kenneth Starr, a former judge, who really knows the law, should tell us that the First Amendment universe is only about the truth. It isn't, and it never has been, and James Madison thought it wasn't, thought you had to allow all kinds of abusive speech. And so does the Supreme Court. It has repeatedly said that.
MARGARET WARNER: Terry Eastland, how do you see it?
TERRY EASTLAND: Well, I think that Ken Starr understands that his office is under a declared war on the part of the White House. This is no secret. It's out in the open. I don't know the theory, the facts at least on which he's operating here. But I do feel that he felt he had to do something in response. Whether this was the prudent tactic I think is the question. The better option I think for an independent counsel who would feel in the circumstance might have been to have written say Janet Reno a letter, the attorney general, indicating that you have given me this matter to investigate, that there are smears, in my judgment, upon veteran prosecutors who come, in fact, from the Justice Department, and to relay this information, give it to her, indicate to her that it is--it is something that threatens the administration of justice generally, not just in his office, but if it were to be duplicated elsewhere, it would be a serious problem. And in this case I think you could ask the attorney general to indicate this to the President, to relay this information to the President, and to indicate that it should not continue.
MARGARET WARNER: But briefly, do you think the fact that he chose another course raises First Amendment questions or not?
TERRY EASTLAND: Well, I don't think there's any question of previous or prior strength. The press has not been subpoenaed. It's not that kind of question. In terms of First Amendment rights, I don't know what facts might be here that Ken Starr has. That's the grand jury's role, is to discover what the facts might be. But I think that what we've done is we've changed the conversation so that now we're talking about Ken Starr's tactics as opposed to the question of whether perjury and obstruction of justice has occurred in this case.
MARGARET WARNER: Floyd Abrams, how do you see what's unfolded in terms of your specialty?
FLOYD ABRAMS: Well, I think it's all very dangerous. I mean, I think the idea of Ken Starr, who knows the First Amendment, who was a real good First Amendment judge, going out and subpoenaing Sid Blumenthal and having him testify because, as Mr. Starr, himself, said, he wants to find out if Mr. Blumenthal has been saying bad things about him, or bad things about his staff, because he thinks they're wrong, I mean, the First Amendment protects against just that sort of inquiry by officials in power. Sid Blumenthal's got the right to speak out. Ken Starr has got the right to speak out. This is in part a political battle. And there's nothing wrong with that. It's unusual. But there's nothing wrong with it. But you can't stifle it by hauling someone in front of a grand jury and having him testify with the hope, it seems, of either suppressing it, stopping the speech, chilling the speech, or punishing the speech. Those are all illegitimate purposes.
MARGARET WARNER: Otto Obermaier, is that how you see this? Was this an attempt to suppress or chill speech?
OTTO OBERMAIER: Not at all. It was an attempt by Mr. Starr to maintain the integrity of his investigation of the president and those involved in his charter. One has to hypothesize that lies were said about the prosecutors and that they were said and spread with the intent of affecting that grand jury inquiry, either by having the prosecutors pull back, or not punch as hard as they should. If one hypothesizes the case of John Gotti and he spreading false, derogatory information about me when I investigated the killing of a man named Castillano in Midtown Manhattan, then that's a legitimate inquiry for the grand jury to conduct. Any First Amendment implications of that can be dealt with when and if any charges are formally filed. But clearly the grand jury has the right--and Mr. Starr as its legal adviser has the right to inquire as to whether or not false statements with the intent to influence are promulgated by an agent of the subject of his inquiry.
|Terry Eastland: "I think that what Ken Starr did is permissible."|
MARGARET WARNER: Tony Lewis, what about that point and also the point Terry Eastland raised that this is not an attempt to either restrain reporters or impose prior restraint on Sidney Blumenthal, and that there could be a legitimate prosecutorial reason for trying to get to the bottom of this?
ANTHONY LEWIS: I've listened very closely. I've listened to Mr. Starr. I've listened to Mr. Obermaier. And I've listened to Mr. Eastland. I haven't heard a legitimate reason yet. We live in a country where you can criticize people. And the notion that a prosecutor with the great power of the grand jury, the power to subpoena people and make them talk, is going to defend himself against criticism is truly amazing to me, and I'm frankly startled that a lawyer, Mr. Obermaier, and Mr. Eastland, who I think knows better, knows about the First Amendment, should defend such a performance. You know, Mr. Starr must be an extremely sensitive man because bad things are said about prosecutors and public officials all the time. And they don't respond with the power of a grand jury. That's really frightening.
MARGARET WARNER: Terry Eastland, do you agree--and Ken Starr also made this point--we heard him say that--he called it an avalanche of lies and distortions, and that that could well be an attempt to impede or obstruct an investigation? Is that a defense, in your view?
TERRY EASTLAND: The obstruction of justice statute is quite broad. I think the critical thing here would be to try to prove intent. For the life of me I--on the facts that we publicly know right now, we don't see how that could be done, but again that's what he's trying to find out. Let me say this, though, to Tony Lewis. I--as I sit here and heard what he said, I think that what Ken Starr did is permissible. After all, the judge did not defeat--did not reject the subpoena.
MARGARET WARNER: Pointing out--we noted that he tried to have this quashed--
TERRY EASTLAND: Right.
MARGARET WARNER: --and that did not work.
TERRY EASTLAND: It did not work. It was narrowed appropriately, I think, but I think the question here is what kind of response should Ken Starr have, and I think what Floyd Abrams said is entirely correct. This should have been a public debate. I feel that Ken Starr could have raised and made his point in public, perhaps with Janet Reno, who is an appropriate authority, to get this kind of complaint.
|Floyd Abrams: "This is not John Gotti we're talking about."|
MARGARET WARNER: And let me ask you further about a point that I think it was Tony Lewis and Floyd Abrams both raised, which is that if you have a situation like this in which--excuse me, I'm just losing my train of thought for a minute--if you have a situation like this in which Ken Starr feels he absolutely cannot go on and that it is just lies that have been promulgated, that is, he put it, the First Amendment does not protect lies.
TERRY EASTLAND: Right. His point is the First Amendment--
MARGARET WARNER: Is that true?
TERRY EASTLAND: --is not a shield against obstruction of justice. And I could imagine circumstances in which the First Amendment would not be the shield. If there were an intent to obstruct justice, it would not protect. But I think it's also important to point out one larger truth here, which is if the White House, indeed, believes that Ken Starr has abused his office, the President of the United States believes that. He has a remedy at hand. He can order the attorney general to remove, to fire Ken Starr, and it seems to me if the White House wants to do that, the course lies quite open to it.
MARGARET WARNER: Floyd Abrams, yes, please weigh in.
FLOYD ABRAMS: Could I just say that I think the problem here is shown by Mr. Obermaier's comment earlier. This is not John Gotti we're talking about. I mean, it really isn't. We give prosecutors leeway, and it's sort of dangerous to do so, but we give them a lot of leeway to run grand juries. The one thing we don't want them to do when they run it is to preserve their own reputation at the expense of their critics. This is criticism of a prosecutor. Maybe it's accurate, maybe it's inaccurate, but the idea that that sort of criticism can be stifled or questioned before a grand jury. And it's not a little thing to be in front of a grand jury where you have the risk of contempt if you don't answer and the risk of perjury by the same people that you're attacking if you answer in a way that they find that they can get you on. This is serious business, and it seems to me a very dangerous use, a very dangerous misuse of the grand jury to ask these questions of this person in this way.
|A word about lies.|
MARGARET WARNER: Mr. Obermaier.
OTTO OBERMAIER: Well, it seems to me we're getting away from it. It's not criticism of Mr. Starr if one takes the statements that he made yesterday and again this morning that these are lies made about staff--in order--the subject of that inquiry, then that's certainly a permissible inquiry for the grand jury to take. It is not that people have criticized--for example, Mr. Starr has not subpoenaed the New York Times, who yesterday wrote an editorial saying that he had a tin ear for political nuances--this is a question of a person lying about prosecutors with the intent to influence.
MARGARET WARNER: You think--
OTTO OBERMAIER: It may not--
MARGARET WARNER: You think it really matters whether it's lies or the truth?
OTTO OBERMAIER: Indispensable to the ultimate formulation of a charge under the obstruction of justice statute but not necessarily indispensable for the grand jury inquiry. Don't forget the grand jury has the right to satisfy itself merely that the law is being obeyed.
MARGARET WARNER: Mr. Abrams.
FLOYD ABRAMS: But look--we have the subject of the alleged lie. We don't know if it's a lie. We have no idea if it's a lie. We have the subject of the lie with the grand jury behind him, able to haul in his critics, the very people who were saying bad things about him and his staff. That's the beginning of the problem. And when it's in this context, or the context, like it or not, it is intensely political on both sides. This is not just "a" grand jury; this is a particular grand jury that we know about and to stifle that sort of political debate, and that's what's going on here is very dangerous.
MARGARET WARNER: All right. Tony Lewis, you were trying to get--
ANTHONY LEWIS: I just wanted to say another word about the lies. I looked very carefully in the press to see what these lies are, and I'm sure there are bad things said, and I wouldn't like them if they were smears, but there were at least two truthful things said about Mr. Starr's staff--I'm not going to repeat them here--but they were stated by Al Hunt in his column in today's Wall Street Journal. And I see nothing wrong with, in general, trying to look for the truth about those prosecutors. But there's another thing. We passed lightly over this question of lies, which is a bad word. The problem here is that if you begin deciding whether people are speaking the truth and say they can only speak if it is the truth, you have stifled what is the essence of debate. And, indeed, I'm going to just read a line from a Supreme Court opinion, if you don't mind. "Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth." And that was from Justice Brennan's opinion in New York Times v. Sullivan in 1964, the leading case about freedom of speech.
MARGARET WARNER: All right. Terry Eastland, what about that point?
TERRY EASTLAND: Well, it is a leading case. Tony Lewis has written a book on that case. I think I want to add to this context it's important to understand the independent counsel statute includes within it a provision regarding the scope of an independent counsel's investigation, which explicitly says that he is supposed to investigate crimes of perjury, destruction of evidence, obstruction of justice, two of those three we're talking about in this Lewinsky story, allegations, granted, but it seems to me that it well may be that the independent counsel statute does command an independent counsel to take especially seriously these kinds of crimes, whether we like the statute or not. And, by the way, I welcome the fact that Tony Lewis has joined me as an opponent of the statute.
ANTHONY LEWIS: Thank you.
TERRY EASTLAND: But that happens to be in the statute, and it is the rule of law at the moment.
FLOYD ABRAMS: But, Terry, what you're talking about when you quote the statute about obstruction of justice is not a statute which is designed to stifle criticism of the prosecutor who's looking into whether there is obstruction of justice, right?
TERRY EASTLAND: Well, Floyd, I didn't say that.
FLOYD ABRAMS: No, I know you didn't. What I'm saying is that the obstruction of justice investigation that the independent counsel is engaged in supposedly started with Monica Lewinsky, maybe it includes the president, but does it really involve, are we really to believe it involves the White House staff, are we really to believe it involves the people who are now critical of Ken Starr and the people on his staff? Because if that's what it means, then we have to rethink the question of whether obstruction of justice, itself, is such a broad, malleable concept that it may run into First Amendment problems.
MARGARET WARNER: Mr. Obermaier, do you want to weigh in on this?
OTTO OBERMAIER: So far we haven't heard a single case which has ever stopped the prosecutor from conducting an inquiry under the obstruction of justice statute. And I emphasize that one has to--that this is a very narrow issue. The people who speak in behalf of the issue that this is improper may tend to broaden this, but this is a question of whether lies were told with the intent, a specific intent, to impact the prosecutor so that they pull their punches. And that seems to me to be a totally permissible inquiry. If someone wishes to criticize Ken Starr because he can't tell his right hand from his left hand, they're more than free to pick up the phone, call the press, a reporter, and publish that. But, as for it saying bad things about Ken Starr that are not true, known not to be true, and done with the intent that he'd pull his punches, is certainly a permissible inquiry for the grand jury to conduct, and that is the stage at which we are currently.
MARGARET WARNER: All right, gentlemen, I'm sorry, but we have to leave it there. Thank you all very much.
OTTO OBERMAIER: Thank you.