Clinton attorney David Kendall sent this May 6 letter to independent counsel Ken Starr, accusing him of leaking to the media a sealed ruling by U.S. District Judge Norma Holloway Johnson that refuted a White House claim of executive privilege. Johnson's ruling was widely reported after being leaked to several news organizations by confidential sources.

Starr's office quickly responded to Kendall's charge, calling it "reckless" and saying that Kendall had "perfect knowledge of the source of the reports," hinting that the White House might have been involved in leaking the information.

The White House has been in favor of making public the ongoing legal debate in D.C. federal court over executive privilege between Whitewater prosecutors and the president's lawyers.

BY HAND

Hon. Kenneth W. Starr
Independent Counsel
Office of the Independent Counsel
1001 Pennsylvania Avenue, N.W.
Suite 490 -- North
Washington, D.C. 20004

Dear Judge Starr:

I write, yet again, to protest a leak of sealed grand jury documents from your Office and to inform you that we are today filing a sealed motion for you to show cause why your Office and/or persons therein should not be held in contempt of court for these latest flagrant leaks. The White House, Mr. Lindsey and Mr. Blumenthal have joined this motion.

Yesterday afternoon, Fox News reported that your office had leaked a sealed opinion filed by Judge Johnson the previous day:

"...[T]he ruling is under seal, but it appears as though the White House has suffered a significant setback in its ongoing efforts to battle Ken Starr's investigation into the Monica Lewinsky matter. The Office of Independent Counsel [is] reporting that they have received a favorable ruling from the judge, against the White House, in the President and the White House claim of executive privilege. The Office of Independent Counsel had long argued that claims of executive privilege by the President's staffers were unfounded and could never be allowed to let stand, and the Office of Independent Counsel [is] now saying that because there has been a ruling that is favorable to them, the conclusion therefore is that it has been a major setback to the White House."

Fox News Channel, May 5, 1998. The newspapers today are full of reports about Judge Johnson's opinion which plainly originated from your Office. You yourself were interviewed by Fox News this afternoon and proclaimed the ruling "magnificent."

It is disappointing that your commitment to your secrecy obligations under Rule 6(e), Fed.R.Crim.P., is only verbal. Three months ago, in a CNN interview with Bob Franken on February 6, 1998, you stated that you had launched an internal investigation of leaks of grand jury material from your Office:

"BOB FRANKEN, CNN CONGRESSIONAL CORRESPONDENT: .... Usually when Starr's office has been accused of leaks, they have indignantly said it wasn't us. This time [they're] not really saying that.

(BEGIN VIDEO CLIP)

STARR: I do not have an explanation. I am very concerned...

QUESTION: Have you...

STARR: ...and if I could continue -- if there was an act of unprofessional activity I'm confident we will find it out. I don't know if there was, I take it very seriously. We're going to find it out.

QUESTION: You are reviewing, your honor, your own procedure?

STARR: Absolutely.

QUESTION: You are conducting your own investigation judge on the legal leaks in your own office?

STARR: We are taking appropriate action. I'm not going to describe at this time what that is.

QUESTION: Can you tell us what you're involve...

STARR I'm taking it very seriously."

CNN Today transcript (Feb. 6, 1998).

In your letter to me that same day about grand jury leaks, you stated that you had "made the prohibition of leaks a principal priority of the Office," that such leaks were "utterly intolerable," and that leaking was "a firing offense, as well as one that leads to criminal prosecution." You also indicated that you had "undertaken an investigation to determine whether, despite [your] persistent admonitions, someone in [your] Office may be culpable."

Three months have passed. Nothing has been heard about the results of your "investigation." See "Whatever Happened to Leak Probes?", Legal Times at 10-11 (May 4, 1998). Unfortunately, the leaks yesterday and today of Judge Johnson's sealed opinion and the leak on May 1, 1998, to CBS Evening News of quotations from a sealed brief your Office had apparently submitted only to the trial judge makes it clear that your Office does not take seriously its obligation to safeguard grand jury material which is legally required to be kept confidential.

It is particularly ironic that you chose to leak Judge Johnson's recent decision when you well know that we have supported the unsealing of materials relating to any claims of executive privilege and official attorney-client attorney work product privilege, after steps had been taken to assure that material protected by Rule 6(e) was redacted.

I regret the need to file another show-cause motion, but the contempt process is apparently the only way to force your Office to meet its legal obligations. The Independent Counsel's Office is simply not independent of the legal rules governing grand jury investigations.

Sincerely,
/s/
David E. Kendall