Once hailed as a savior of investigative reporting, Kenneth Starr is now seen by some as a threat to the First Amendment
By Florence George Graves
Florence George Graves, a resident scholar at Brandeis University, is the founding editor of Common Cause Magazine and one of the reporters who broke the Packwood story for the Washington Post. Her research for this story was supported in part by the Fund for Investigative Journalism. Amanda Elk, Bridget Gutierrez and Kathy Killeen provided research assistance.
The Kenneth Starr assailed by the Clinton administration as an agent of a vast right-wing conspiracy is the same Kenneth Starr who was hailed in 1987 by many journalists and media lawyers as a savior of investigative reporting.
While tens of thousands of words have been written about Starr in recent months, almost none have reflected the prominent role he played in defending press rights during the 1980s, when many conservatives and business interests, determined to rein in what they perceived as post-Watergate media excesses, declared war on journalists.
As a federal appeals court judge, Starr wrote two influential decisions favoring the media. One involved a libel case against the Washington Post filed by Mobil Oil Corp. President William Tavoulareas and his son, in which Starr endorsed the view that aggressive reporting serves ``one of the highest functions of the press in our society." The second concerned a libel suit against columnists Rowland Evans and Robert Novak, in which Starr upheld broad protection for opinion writing.
``I think there's no question that Judge Starr `got it' in terms of understanding the importance of the press under the First Amendment and the First Amendment protection that the press should have from libel and related claims," says media lawyer Lee Levine.
A decade later, however, a different, disturbing picture of Starr's relationship with the media is emerging. In a stunning shift, Starr, in his role as the independent counsel charged with investigating Whitewater-related charges, has staked out territory that several prominent media attorneys believe is seriously undermining a free and independent press.
There are also indications that some media executives, like willing executioners, are not aggressively fighting Starr's encroachment on First Amendment rights as he investigates President Clinton.
Floyd Abrams, one of the country's most prominent defenders of the First Amendment who made his name in the Pentagon Papers case, says Starr and other independent counsels investigating members of the Clinton administration are creating a ``subterranean" and ``secret body of law" as a result of their ``persistent subpoenaing of journalists" to produce materials, including notes and broadcast outtakes, in a way he believes no previous independent counsel has done.
The same Ken Starr who gave a ringing endorsement of investigative journalism is now, according to Little Rock media attorney Philip S. Anderson, trying to turn investigative reporters into ``agents of the prosecutor's office."
Almost all legal papers involving subpoenas issued by Starr to news organizations are under seal. However, a few pleadings and the judge's decision in a case involving ABC were unsealed, providing a rare glimpse into the ``secret body of law" that concerns Abrams. In these unsealed documents, Starr and U.S. District Court Judge Susan Webber Wright, who is overseeing the Whitewater grand jury, endorsed what some media attorneys say are alarming legal positions. If widely accepted, their interpretations of the law would emasculate journalists' First Amendment rights in reporting on issues relating to an independent counsel probe.
First, Starr took a hard-line position, saying that the Supreme Court has effectively ruled that ``the First Amendment does not establish a journalist's privilege" to protect notes and sources in grand jury proceedings. And, ABC argued in its reply brief, Starr was taking the position that grand juries ``must be accorded virtually unlimited access to press materials," unless a journalist could prove the independent counsel was acting in bad faith.
Perhaps more shocking, Wright effectively ruled that the long-standing Justice Department guidelines, which make it very difficult for federal prosecutors to subpoena journalists or their notes, do not apply to independent counsels. Enacted in 1970 after fiery confrontations between reporters and then-Attorney General John Mitchell, the guidelines were intended to help ensure press freedom by protecting journalists' reporting from the ``prosecutorial power of the government." Sen. Carl Levin (D-Mich.), who cosponsored the reauthorization of the independent counsel law three times, says the measures intended that independent counsels follow the guidelines. Therefore, Wright's interpretation completely contradicts congressionally mandated restraints on an independent counsel's power.
Neither Wright nor Starr would discuss the issue. Debbie Gershman, Starr's spokesperson, says that federal rules prohibit him or anyone from his office from discussing subpoenas.
Why are the subpoenas such a serious matter? If journalists know they may be asked to testify about unpublished material, perhaps being forced to choose between identifying a confidential source and going to jail, they may be discouraged from doing tough investigative stories. Even worse, if reporters are seen as potential arms of law enforcement, sources who may have important information about government or corporate wrongdoing will be far less likely to cooperate.
Because most of the transactions have been done in secret and some media organizations only reluctantly acknowledged the subpoenas, it is impossible to determine how many subpoenas have been issued and exactly what kinds of records have been turned over to Starr.
Some subpoenas of media records have surfaced, including one to ABC for outtakes of an interview with Susan McDougal; another to William Morrow and Co., a book publisher, for materials related to a book being written by Webster Hubbell; and two to television stations issued after the Monica Lewinsky story broke. In the case of ABC, Judge Wright ruled the outtakes had to be given to Starr. In the case of Morrow, Starr backed off after an aggressive PR and legal fight by the publisher.
However, interviews with several First Amendment attorneys indicate that this handful of subpoenas is merely a symbol of a much more pervasive problem. Abrams says he knows of five or six news organizations whose journalists' notes or outtakes have been subpoenaed by Starr or other independent counsels investigating members of the Clinton administration. The subpoenas he knows about have all been directed at national print or broadcast news organizations and have never been made public, he says.
Abrams says he cannot reveal the news organizations involved because ``I've learned these things in confidence." He is not personally involved in any of the cases, he says, ``but I have seen the pleadings and read the opinions," which are under seal.
Abrams emphasizes that Ken Starr is not alone. He is part of a much larger ``systemic problem with special prosecutors who have more and more come to feel that there are almost no limitations on what information they can obtain and from whom they can obtain it." He believes ``special prosecutors as a group have come to think that this is open season on the press as a source of information for them. And I think it is important for the press to do its best to resist."
Abrams is known as one of the nation's leading constitutional lawyers. He came onto the national scene when he successfully represented the New York Times in the Pentagon Papers case after the newspaper published articles in 1971 based on classified government documents analyzing the development of the Vietnam War. Steven Brill, founder of The American Lawyer magazine and Court TV, once called Abrams ``one of the few lawyers whose reputation is actually matched by reality."
Abrams is deeply troubled for two reasons. First, he says, ``there seems to be an explosion of subpoenas." Second, everything has been done ``in secret. No one was allowed to talk about it. Everything is in a grand jury context with papers filed under seal and the information sought under seal, objections made under seal, briefings under seal, and decisions which only counsel can see and which cannot be cited thereafter because they're issued under seal."
Abrams doesn't know whether any of the outtakes or notes that have been turned over to prosecutors identify confidential sources ``because I don't know what the journalists had." In the cases he knows about, he believes media organizations were specifically told by the independent counsels that all of their responses to the subpoenas had to be filed under seal, and the organizations complied.
Starr spokesperson Gershman says that while the counsel's office cannot discuss subpoenas, anyone who is subpoenaed ``is free to discuss it, unless they don't want to, or maybe their lawyers have told them not to discuss it."
Sara Sun Beale, a Duke University law professor and an expert in grand jury law, says because federal grand jury secrecy rules do not cover witnesses, she knows of no reason why media companies could not publicly denounce their subpoenas. Furthermore, she agrees, unless the court issued a gag order--which she says would be unusual--news organizations could put their motions to quash subpoenas on a billboard if they wanted to.
Abrams believes that media companies should be ``militant" in their responses to subpoenas. That's critical, he adds, because in his view independent counsels are ``treating the press as if they're no trouble at all and as if they can be treated as witnesses to their own interviews."
Arkansas lawyer Anderson, president-elect of the American Bar Association, says that in addition to the ABC case, he knows of other subpoenas issued by Starr to news organizations. But, he adds, ``I can't tell you about them" because that would violate client confidentiality. He declines to say how many cases he knows of and whether they involve print, broadcast or both, or what was demanded. Anderson emphasizes he is not speaking for the ABA but as an attorney with media clients.
Anderson's firm has represented the state's largest newspaper, the Arkansas Democrat-Gazette, for more than two decades, and has also worked for the three major networks and CNN.
The Arkansas newspaper's executive editor, Griffin Smith Jr., says to his knowledge Starr has not subpoenaed any of the paper's materials.
Representatives of NBC, CNN, the New York Times, the Washington Post, the Washington Times, Newsweek, U.S. News & World Report and Gannett say they have not received a subpoena from any independent counsel appointed during the Clinton administration. A Wall Street Journal spokesman says the paper received a subpoena from Starr more than a year ago and agreed only to confirm that information it had published was true.
Los Angeles Times associate general counsel Karlene Goller says the paper has not received any subpoenas from Starr, but did not respond to repeated queries about other independent counsels. Time magazine would neither confirm nor deny receiving subpoenas (See "The Sound of Silence").
Eileen Murphy, director of media relations for ABC News, says the network has received one subpoena, for the Susan McDougal outtakes. CBS associate general counsel Susanna Lowy says the network received one subpoena, from another independent counsel. Donald Smaltz, who is investigating former Agriculture Secretary Mike Espy, demanded records, outtakes and people to testify. After its motion to quash the subpoena was denied, the network complied. Lowy would not say who or what had been subpoenaed. But AJR confirmed that ``60 Minutes" correspondent Mike Wallace, Executive Producer Don Hewitt and producer Bob Anderson testified before the Espy grand jury.
Spokespersons for Smaltz and David Barrett, who is investigating former Housing and Urban Development Secretary Henry Cisneros, say federal rules prohibit independent counsels from answering questions about subpoenas.
In recent interviews several prominent attorneys, including Victor Kovner, who represents book publisher William Morrow, and James Goodale, the former New York Times general counsel perhaps best known for his role in the Pentagon Papers case, say there is persistent talk in media law circles about subpoenas issued by Starr that have not been made public.
Sandra Baron, executive director of the Libel Defense Resource Center, says, ``My distinct impression is that there are a number of subpoenas" issued to both national and local news organizations. ``This is very dangerous ground these prosecutors are treading on." Moreover, she says, ``I don't think the press has a viable strategy" for dealing with the problem. ``It's like shadowboxing, because everything is under seal." Baron finds the silence in the media community ``astonishing. I've been baffled by it."
Why would some members of the press go along with subpoenas without a vigorous fight? Have some news organizations chosen to keep the subpoenas secret as part of a strategy to contain negative publicity and to limit the spread of knowledge about their decisions to cooperate? Are media executives hoping they can contain the problem by remaining silent so they will not embolden other prosecutors?
Are they worried that if the subpoenas become public, sources will be reluctant to talk? Are they afraid of setting precedents that are unfavorable to the press by appealing decisions to federal circuit courts considered unfriendly to the media? Or do they just not want to spend the necessary time and money to fight?
Concerns about Starr and his respect for First Amendment rights surfaced most recently when he subpoenaed Sidney Blumenthal, the journalist-turned-White House aide suspected by Starr of leaking negative stories about the independent counsel and his staff to reporters. Abrams believes it is ironic that ``while journalists are reporting about the activities of the special prosecutors, often obtaining leaks" about them (and, some say, from them), ``the special prosecutors themselves have been engaged in the subpoenaing of journalists' outtakes or notes."
Former NBC general counsel Cory Dunham, who represented the network for almost two decades, says if it is true that a number of news organizations have complied with subpoenas without a strong legal fight and without reporting what is going on, ``that's the shocker."
Dunham, author of ``Fighting for the First Amendment," says ``historically, the stronger national news organizations aggressively resisted government efforts to subpoena notes and program outtakes." He says news outlets have understood that it is essential to fight intrusions by the government both in court and in the court of public opinion, to reinforce the understanding that subpoenaing journalists and their records is improper and to discourage the government from using journalists as part of its process.
William Morrow has been the most vocal in challenging a subpoena from Starr. Last summer Starr demanded that the publisher turn over documents related to a manuscript by Webster Hubbell, the Clintons' close friend and a former associate U.S. attorney general. Hubbell has served time in prison for bilking his clients and former law partners of some $400,000.
Starr apparently was investigating whether Hubbell's memory about Whitewater details had been dulled by money (as much as $500,000 in consulting and other fees) paid to him by companies, among them Revlon (where Clinton friend Vernon Jordan is a director).
Starr's office must have thought Morrow was an easy mark. According to Morrow's written response to Starr's subpoena, HarperCollins, Hubbell's initial publisher, handed over a draft he had handwritten in jail.
Kovner says he was astonished by how broad the subpoena was. In effect, he says, Starr's office ``wanted a modem hooked up between our editor's word processor and their office. Every draft and every edit."
Actually, the subpoena demanded much more, including ``any and all documents" relating to ``any work" for Morrow by Hubbell, his wife or his children, including ``all books, manuscripts, computer disks, letters, correspondence, memorandums, facsimilies, correspondence [sic], notes, recordings or any medium...."
Kovner felt no obligation to keep quiet about Starr's efforts. He immediately put out a press release and began mounting a spirited PR and legal offensive. Kovner says he made it clear to Starr's office that Morrow was ready to go to the mat and had authorized him to appeal any decision to turn over editorial documents.
The same day that a front page, above-the-fold article about the battle appeared in the New York Times, Starr dropped his effort to obtain the editorial material.
More recently, Starr issued subpoenas to two television stations after the Lewinsky story broke. One, WPEC-TV in West Palm Beach, responded that it didn't have any videotapes showing Lewinsky with the president.
Starr also subpoenaed Pittsburgh's WPXI-TV for its interview with retired Secret Service agent Lewis Fox, who said he had seen Lewinsky go into Clinton's office one Saturday. The station's news director, Bob Morford, says he provided aired interviews but refused to turn over unaired footage. Darrell Joseph, an associate independent counsel, replied that the counsel's office may decide to seek the outtakes later.
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