Policy made plain.
Nov. 27 1998 3:30 AM



Slate's Thanksgiving schedule: Our weekly text file, Slate on Paper, will be in your e-mail in-box or available for download two days early, around midday Wednesday. A nearly full week's worth of Slate will also be posted online Wednesday. After that it gets pretty quiet around here, but check in throughout the long weekend for "Today's Papers" and in case Chatterbox has a postprandial thought or two.


"So," we e-mailed Steven Brill, "did they ask your question?" In Slate last week, the founder and editor in chief of Brill's Content proposed a killer question for the House Judiciary Committee to ask Kenneth Starr. The question, which actually was a long series of questions, boiled down to: "Will you waive any privileges you have so we can get to the bottom of whether your office has been illegally leaking to reporters?" Brill replied that several Democrats had asked the question, but Starr had refused to answer on the grounds that a federal judge had ordered the investigation of these leaks to be kept confidential. Brill noted that this order for confidentiality had been requested by Starr himself.

Brill's question could have been a lot simpler. It could have been something like: "Have you or anyone in your office leaked information from grand jury testimony to the press--before or after the testimony was given?" As any newspaper reader knows, the correct answer to this question is obviously yes. But Starr couldn't say yes because he's said variations on no for months and would be conceding a public lie. Is this beginning to sound familiar?


Brill didn't do it the easy way for two good reasons. First, he is admirably opposed to perjury traps, and therefore he didn't want to be seen as proposing a tooth for a tooth. And in fact he did not propose one: His question involved stripping away Starr's protections against the truth, not forcing him to repeat the lie under solemn oath. Second, Brill, as a media philosopher, is understandably queasy about using the law to "out" journalists' confidential sources. He has an explanation of why it's OK in this case, but his queasiness moderates his delight at putting the screws on Starr the way Starr put them on Clinton.

But let us rise above high-mindedness for a moment. The symmetry between Starr's case against Clinton and the case against Starr himself is so striking that it would seem heavy-handed in the plot of an opera. The general arc of self-destruction is the same: Like Clinton, Starr did something wrong but not fatally wrong. Then he issued a mixture of lies and weasels about it, making it virtually impossible for him to give an honest answer if asked a straightforward question. That gave his enemies a way to trap him into an undeniably serious crime: perjury under oath in an investigation of alleged high crimes by the president of the United States. In both cases, the investigation itself would produce the crime.

Many details are also eerily similar:

Starr's leaks pretty clearly violated the federal rules of criminal procedure, just as Clinton's lies in the Paula Jones deposition pretty clearly violated the perjury laws. But neither the rules nor the laws are usually enforced in circumstances like these. Prosecutors leak all the time.


As Brill points out in the December issue of his magazine, Starr's weasels laughably echo Clinton's. Clinton has said oral sex doesn't count. Starr has said that leaking grand jury testimony before it's actually delivered doesn't count.

Both men skillfully make their weasels do double duty: keeping them kosher on a technicality and misleading the public about the actual facts. Is Clinton saying he didn't commit perjury because of the peculiar definition of sex in the Paula Jones suit, or is he saying he actually didn't have sex? Is Starr saying he didn't violate the criminal procedure rules because he doesn't believe they apply to pre-testimony leaks, or is he saying he actually didn't leak? The answer is yes to all four. Starr has been especially squirmy about this. He has made his pre-testimony-leaks-don't-apply argument in sealed court papers and also has publicly denied believing anything so foolish, Brill points out.

Like Clinton, Starr has used nonexistent or self-imposed secrecy requirements to avoid answering troublesome questions. Clinton invoked grand jury secrecy, though you are always free to reveal your own testimony. Starr, as noted, asked for the leak investigation to be put under seal, then publicly regretted his inability to discuss a matter under seal.

Starr is not persuaded by the White House's various novel theories of "privilege" (exemption from testifying) for Secret Service agents, family pets, and so on. In fact, the very raising of these privileges in court--and dropping them when the judge says no--is one of the counts in Starr's this-is-not-an-indictment of the president. Yet Starr, too, has run a few novel and self-interested public interest theories up the flagpole, such as his claim that his leaking (if it exists, which it doesn't) is covered by a rule that allows prosecutors to reassure the public about the integrity of an investigation. His investigation's integrity, he notes, has been challenged. This is a delightful example of what lawyers call a "bootstrap argument": If anyone points out that you've broken the rules, that's a challenge to your integrity, which requires reassuring the public, which means you have no longer broken the rules! Anyway, as Clinton's lawyer David Kendall pointed out at the hearing, this rule is about official statements, not anonymous leaks.


Finally, despite all the evasive techniques, Clinton and Starr have both told the lies they struggled to avoid. No one thinks even oral sex, as practiced outside the laboratory, actually escapes the Paula Jones suit's stringent definition of which organs must come into contact with which body parts. As for Starr, as Kendall pointed out at the hearing, the independent counsel put out a press release the day Flytrap broke declaring, "Because of confidentiality requirements, we are unable to comment on any aspect of our work." (At the hearing Starr told Kendall he disagreed with his own press release.)

In his massive reply to Brill's massive "Pressgate" article, Starr wrote that Brill was "mistaken" to assume that it was the "practice" of Starr or his office "to release to media the contents of statements made by witnesses outside the grand jury." He wrote, "Let me repeat categorically: the OIC [Office of Independent Counsel] does not release grand jury material directly or indirectly, on the record or off the record." I suppose the words "practice" and "grand jury testimony" leave Starr a tiny bit of wiggle room. It would be a joy to watch him perform that particular wiggle.

Letters to Brill, of course, are not under oath. At the impeachment hearing last Friday, Barney Frank, D-Mass., tried to spring the perjury trap, but Starr thwarted him by repeating that he didn't do any illegal leaking (he didn't add "by my definition") and that he couldn't discuss the matter because it was "under seal" (he didn't add "at my request").

But all is not lost. Kendall, the president's lawyer, not even intending a perjury trap, asked Starr whether anybody had been fired for leaking, and Starr said, "No, because I don't believe anyone has leaked grand jury information." That's awfully close. Once again, words such as "believe" and "grand jury information" give Starr some possible defenses. But invoking such defenses publicly would destroy his reputation. He could invoke them if called before a grand jury and hope that word didn't leak out, but tragically--and mysteriously!--it has a way of doing so.


Starr, in short, fell into a perjury trap that no one had even set. Should we snap it shut or release him?

The best case that can be made for letting President Clinton off the hook for Flytrap--besides the fact that everyone is sick to death of it, which strictly speaking is not a legal argument--is that he was caught in a perjury trap. Consensual sex between adults is no crime, lying about an ancillary matter in a civil suit deposition is a crime that would never normally be prosecuted ("Oh yes it would" ... "Oh no it wouldn't" ... yadda, yadda, yadda), and so Clinton's one legally indefensible act was lying to Starr's grand jury. After four years of investigation, in other words, Starr's only good card is a crime he carefully arranged for Clinton to commit just three months ago. And you don't crucify a guy for that.

Or that's the argument. Good enough? Maybe not. Clinton still lied under oath to a grand jury. Perjury is a serious offense. Those who make and enforce the law have a special obligation not to flout it. It's not about sex, it's about ... you know. So where does that leave Kenneth Starr?

--Michael Kinsley