Did Ken Starr Break the Rules?

Steve Brill says Independent Prosecutor Starr broke the rules by leaking information to the press. Starr and others say he didn’t. The dispute is not about what Starr leaked but about what are the rules. Disputants have cited federal court rules, two federal court opinions, and a justice department policy manual. What exactly are the rules about federal prosecutors talking to the press?

The Federal Rules of Criminal Procedure, written by the Supreme Court, govern federal prosecutors. These rules are approved by Congress and have the force of law. Rule 6(e) specifies that a prosecutor may not, under any circumstances, discuss “matters occurring before the grand jury” with journalists.

Starr says he didn’t leak information from grand jury testimony. Does Rule 6(e) cover only actual testimony, or does it cover, more broadly, information that’s part of a grand jury investigation? Two circuit courts have weighed in on this question–and disagreed. The Supreme Court has not ruled. (The decision defining the secrecy requirement more broadly came in May–after Starr’s leaks–so he could argue that he acted in good faith, even if Rule 6(e) is ultimately interpreted against him.)

The Justice Department writes a policy manual for U.S. Attorneys which includes guidelines on dealing with the press. It states that prosecutors may discuss aspects of an investigation if the public needs reassurance that the investigation is appropriate. Starr has apparently cited this rule as justification for his leaks, given the White House campaign to undermine his authority. Whether this rule actually applies to Starr’s leaks can be argued both ways. (If the purpose is to reassure the public, why anonymous leaks rather than open public statements?) Also arguable is whether the guideline, thus interpreted, is valid under Rule 6(e). A Justice Department guideline cannot overrule a regulation that has the force of law. As the Justice Department’s interpretation of the law, though, the guidelines would carry weight in any court ruling.

Explainer notes, once again, his amazement that a question like this hasn’t been settled long ago. (See Expainer’s 6/10 item about whether the attorney-client privilege applies when the client–Vince Foster in this case–is dead.) But Explainer doesn’t mind. Unanswered questions are his business.

Explainer thanks Professor George Fisher of Stanford Law School, Professor Earl Dudley of University of Virginia Law School, Professor John Wiley of UCLA Law School, and Professor Phillip Johnson of Boalt Hall School of Law.