Federal Rule of Criminal Procedure 6(e) covers the issue of secrecy in grand jury proceedings. Independent counsel Kenneth Starr has recently been accused of violating the rule after Starr admitted in an article by Steven Brill that he had discussed with journalists the details of his ongoing perjury investigation involving President Clinton and Monica Lewinsky.

Starr defended the background briefings, saying that an exception to 6(e) exists "where what we are doing is countering misinformation that is being spread about our investigation in order to discredit our office and our dedicated career prosecutors."

Starr denied Brill's charges in a statement on June 13 and said they were "baseless" and "false." His office's discussions with reporters -- apparently including Newsweek's Michael Isikoff, ABC News' Jackie Judd and the Washington Post's Susan Schmidt -- "have been legal, appropriate and consistent with Department of Justice policy," Starr said.

Starr has been accused before of violating rule 6(e). Clinton attorney David Kendall charged Starr twice -- in February and in May -- with violating grand jury secrecy. Both times, Starr responded quickly, censuring Kendall for making such allegations.

The rule's language is broad and has been subject to significant evaluation by advisory committees, one reason for a split of legal opinion on the propriety of Starr's actions.

Rule 6. The Grand Jury

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(e) Recording and disclosure of proceedings.

(1) Recording of proceedings. All proceedings, except when the grand jury is deliberating or voting, shall be recorded stenographically or by an electronic recording device. An unintentional failure of any recording to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution. The recording or reporter's notes or any transcript prepared therefrom shall remain in the custody or control of the attorney for the government unless otherwise ordered by the court in a particular case.

(2) General rule of secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.

(3) Exceptions.

(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to--

(i) an attorney for the government for use in the performance of such attorney's duty; and

(ii) such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.

(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule.

(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made--

(i) when so directed by a court preliminarily to or in connection with a judicial proceeding;

(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury; or

(iii) when the disclosure is made by an attorney for the government to another federal grand jury; or

(iv) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law.

If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.

(D) A petition for disclosure pursuant to subdivision (e)(3)(C)(i) shall be filed in the district where the grand jury convened. Unless the hearing is ex parte, which it may be when the petitioner is the government, the petitioner shall serve written notice of the petition upon (i) the attorney for the government, (ii) the parties to the judicial proceeding if disclosure is sought in connection with such a proceeding, and (iii) such other persons as the court may direct. The court shall afford those persons a reasonable opportunity to appear and be heard.

(E) If the judicial proceeding giving rise to the petition is in a federal district court in another district, the court shall transfer the matter to that court unless it can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper. The court shall order transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy. The court to which the matter is transferred shall afford the aforementioned persons a reasonable opportunity to appear and be heard.

(4) Sealed indictments. The federal magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.

(5) Closed hearing. Subject to any right to an open hearing in contempt proceedings, the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before a grand jury.

(6) Sealed records. Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.

INTERPRETIVE NOTES AND DECISIONS

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60. Individuals subject to secrecy requirement

Government attorney who was not assigned to work on criminal case in any official capacity was not authorized assistant of Attorney General and not subject to Rule 6's secrecy requirement. United States v Forman (1995, CA6 Mich) 71 F3d 1214, reh, en banc, den (1996, CA6) 1996.

Rule 6(e) imposes obligation of secrecy not only on government attorneys, but also on FBI officials and others who participate in grand jury proceedings. United States v Marcello (1981, ED La) 508 F Supp 586, affd United States v Roemer (1983, CA5 La) 703 F2d 805, reh den U. S. v Roemer (1983, CA5 La) 707 F2d 515 and reh den U. S. v Marcello (1983, CA5 La) 708 F2d 720 and cert den Roemer v United States (1983) 464 US 935, 78 L Ed 2d 309, 104 S Ct 341, post-conviction proceeding United States v Marcello (1988, ED La) 1988 and post-conviction proceeding United States v Marcello (1989, CA5 La) 876 F2d 1147.