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He's said he had an "inappropriate" relationship with Monica Lewinsky. He's said that he's "very sorry" about it. He's said that he "let my country down."
But personal contrition doesn't equate legal absolution, and Bill Clinton faces the possibility of a premature end to his presidency. It's an alleged disregard for the law that has brought him to this point, and while his apologies for his affair with Lewinsky and for deceiving the American public have political capital, they can't erase the fact that independent counsel Kenneth Starr has given Congress a massive report of what appear to be remarkably serious charges.
These many months after the first reports of the Lewinsky scandal appeared, most of the charges and most of the details remain the same. Our summary, then, of the legal charges against everyone involved -- and what the law says about them.
-Jon Bonné
President Bill Clinton | Monica Lewinsky | Vernon Jordan | Linda Tripp | Kenneth Starr | Sidney Blumenthal
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President Bill Clinton
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Monica Lewinsky apparently was ingenuous in her recounting to Linda Tripp about a sexual relationship with President Clinton, as evidenced by her reported grand jury testimony and by Clinton's own reported testimony.
Clinton has now admitted almost as much, acknowledging an "inappropriate" relationship but insisting the specifics are a private matter. He has repeatedly apologized for his actions, but hasn't publicly elaborated on what the specifics of their relationship might have been.
The propriety of the affair is not at issue as far as the president is concerned -- at least not legally. What remains significant is that he denied any such relationship when deposed on January 17 by lawyers for Paula Jones for her case against him.
Even in his public admission on August 17, and reportedly in testimony to the Lewinsky grand jury that day as well, Clinton maintains that he was "legally accurate."
"At no time did I ask anyone to lie, to hide or destroy evidence or to take any other unlawful action," Clinton said in his public, televised address about the Lewinsky matter that night.
But what is still over his head -- and what likely remains salient to the independent counsel -- are allegations that he somehow tried to keep Lewinsky from telling the truth in an affidavit she gave to Paula Jones' lawyers, or that he asked his friend Vernon Jordan to get Lewinsky to deny an alleged relationship, or that his testimony to the grand jury was in fact either inaccurate or fully incorrect.
Lewinsky reportedly agreed to provide prosecutors with testimony that Clinton suggested they both deny the affair in their testimony for the Jones case. Reportedly, though, she did not admit that Clinton asked her to lie about their involvement.
According to earlier reports, Lewinsky had said that Clinton told her to testify in the Jones lawsuit that visits to the White House were to visit his secretary and that she could avoid testifying by being in New York. Lewinsky reportedly visited Clinton at the White House at the end of December -- after she was subpoenaed but before she turned in her deposition -- and reportedly visited the White House more than three dozen times after she was transferred to the Pentagon.
Clinton testified for Starr's grand jury on August 17 at the White House on video and with his lawyers present, not in the grand jury room and not before the grand jury.
That testimony lasted about four hours, though reportedly with significant breaks spread throughout.
That testimony, as well as Lewinsky's testimony and thousands of pages of other evidence, now sit on Capitol Hill. The next step is in the hands of the House of Representatives, although Starr's investigation is reportedly continuing and his grand jury seems to be continuing their work, possibly in pursuit of a separate indictment against Clinton.
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PERJURY: Clinton gave a sworn deposition in Jones v. Clinton and reportedly said that he never had an affair with Lewinsky. If his statement is proven untrue, he would potentially be guilty of perjury. While he has admitted that he equivocated in his answers, he maintains they were legally correct. However, the specifics of his testimony may contradict testimony by other Starr witnesses.
SUBORNATION OF PERJURY: At issue with subornation is whether Clinton ever encouraged Lewinsky to perjure herself. If he coerced her into perjury -- or even tried to -- he could potentially be found guilty on a subornation charge. Clinton could still have committed subornation even if Lewinsky is not found guilty of perjury, especially since Lewinsky has full immunity from prosecution in this matter.
OBSTRUCTION OF JUSTICE: A more general charge. It doesn't have to specifically relate to Clinton possibly trying to get Lewinsky to perjure herself, rather it can be anything that he may have done to try and prevent her or delay her from testifying about their alleged affair. That could include his alleged attempts to retrieve gifts from Lewinsky so that Paula Jones' lawyers would be unable to subpoena them.
CONSPIRACY: This charge could be brought if there is ever proof that he planned with others to get Lewinsky to perjure herself or to otherwise keep her from testifying about their alleged relations. Specifically, if it is shown that he communicated with his friend Vernon Jordan about any attempt to obstruct Lewinsky from testifying or any attempt to get her to perjure herself, he could be found guilty of conspiracy.
HOWEVER: The issue of criminal charges against the president and the issue of impeachment exist within two separate realms, one judicial and one political.
The criminal charges, which Kenneth Starr would be responsible for, adhere to the specifics of federal law. But impeachment proceedings, which the House of Representatives would commence, have scant historical precedent as to how they would be conducted and are political -- not judicial -- acts. Now that the House has Starr's report, they must decide how to proceed and just how serious Starr's allegations are.
It is also unclear whether criminal charges against the president could be pursued while he is in office. The U.S. Supreme Court was to decide that issue in 1974 in U.S. v. Nixon, the Watergate tapes case, but never ruled on the matter.
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Two possible issues are at hand as involves the president: Is he wrong when he says that his Jones deposition is legally accurate? And did he try to keep her from testifying truthfully -- or testifying at all -- about such a relationship?
As far as legal action, it would up to independent counsel Starr to persuade his grand jury to bring charges against the President. (Starr would now have to bring those charges in addition to whatever action the House might take. Action by the Congress would presumably precede any criminal indictment Starr might pursue.) In the case of the President, who has been known in the past to use linguistic subtleties to evade difficult personal questions, the grand jury might look at the overall meaning of his statements under oath and discount a subtle twist of language.
Starr would then need to corroborate that those statements were false, something that Lewinsky's testimony will almost certainly provide. Starr now has a lock on that testimony after a broad-ranging immunity agreement reached with Lewinsky July 28.
Lewinsky's immunity-protected sworn testimony about the alleged affair was "the first thing" they needed, says law professor Myrna Raeder of Southwestern University School of Law.
(Lewinsky reportedly gave testimony to that effect when she was brought before the grand jury on August 6 and again on August 20.)
Physical evidence provided by Lewinsky -- such as a dress believed to have Clinton's semen on it -- may also corroborate her testimony.
Clinton has now admitted that the two of them were involved, but the specifics of that relationship remain, for the most part, undisclosed by him.
Still, perjury is rarely prosecuted in a civil case, and on January 29 federal Judge Susan Webber Wright ruled that no evidence related to Lewinsky could be used in the Jones case -- including any statement by Clinton about Lewinsky. Federal perjury statutes require that a false statement needs to be made about something material -- relevant -- to the case at hand. And Wright was careful to word her ruling to say that the Lewinsky evidence "might be relevant" but wasn't "essential to the core issues" of the case. Moreover, Jones' case was dismissed April 1.
But a sworn statement is a sworn statement, and still subject to perjury laws.
"It would be very unlikely for it to be the rule that you cannot be convicted of perjury for saying something under oath in the early stages of a case that ends up not being used in court when the case finally comes to trial," says James Liebman of Columbia University Law School.
Perjury is not easy to prove legally, because it is difficult to ensure that an answer to an attorney's question is "a knowing and deliberate falsehood," says Washington attorney William Taylor, a past chairman of the American Bar Association's criminal justice section.
"The question that's asked has to be unambiguous and not subject to several interpretations," says Taylor.
As for the subornation charges, Starr would need some sort of proof that Clinton ever tried to coerce Lewinsky into giving false testimony or statements to Jones' lawyers. Specifically, he would need evidence or witnesses who could corroborate a specific conversation when the coercion took place, for the subornation charge not to devolve into a he said-she said scenario -- one possible reason that the FBI reportedly wanted to make Lewinsky wear a wire and have her talk with Vernon Jordan.
But if Lewinsky tells the grand jury of any effort by Clinton to lie under oath, Starr will have salient evidence for a subornation charge.
Similar issues pertain to obstruction and conspiracy charges -- which are arguably more serious. One set of obstruction statutes take what Raeder calls a "kitchen sink" approach -- almost anything that can be interpreted as interfering with the legal process qualifies. Stricter statutes might apply, though, which require that a defendant "knowingly uses intimidation or physical force" to impede justice. Starr's grand jury would need to be instructed on the appropriate statute, as would a jury in a criminal case if one is ever brought.
The responsibility for an indictment for any of these charges lies with prosecutor Starr and his grand jury. Whether or not the grand jury hands up an indictment against Clinton, Starr will ultimately need to file a report detailing his investigation when he completes his work. That report may or may not be rapidly forthcoming, depending on the breadth of evidence he plans to include.
"His line on this has to be, I have to investigate all the facts to make a determination if there was a crime," says Columbia University law professor Gerard Lynch, who worked as an associate independent counsel during the Iran-Contra investigation.
The murky area of Starr's responsibility comes from a clause in the independent counsel statute that would allow Starr to turn over pieces of evidence to Congress -- at his discretion -- if the House Judiciary committee determines it should conduct an investigation.
Starr's evidence of possible crimes could eventually be used by the House, but if he starts acting like an unofficial investigator for the House Judiciary Committee, the attorney general could determine that he's exceeded the scope of his authority and reign him back in.
"I think an independent counsel should be quite cautious," says St. John's University law professor John Barrett, who worked with Lawrence Walsh for five years as an associate independent counsel in the Iran/Contra investigation. "I think the way to start using it would be to start having conversations with House leadership."
The House, if it is interested in pursuing impeachment proceedings, would need to evaluate the language of Article II of the Constitution and determine whether any evidence against the president -- either produced by Starr or unearthed in their own investigation -- merit going forward with trying the president for impeachment, a process for which the Senate is responsible.
However, the proceedings by either the House or the Senate do not adhere to judicial procedures, and the standards for impeachment do not mirror the specific requirements of any particular law. Lawmakers would need to make their own interpretation of constitutional language.
"Criminality is neither a necessary nor implicit condition for impeachment," says one constitutional law expert. "They're entitled to make up whatever rules they want, but I think they would probably feel themselves bound by the weight of historical precedent."
That precedent is scant on how to determine if the president somehow abused his official power: the proceedings against Andrew Johnson in 1868; the proceedings by the House Judiciary Committee against president Nixon; and occasional impeachment hearings against federal judges, who can only be removed when they are impeached.
Both sides of the argument about whether criminal charges can be brought before or after a president leaves office stem from the brief filed in the Supreme Court case against Nixon.
But when it comes to the Constitution on that issue, says one legal analyst, "the language is silent."
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President Bill Clinton | Monica Lewinsky | Vernon Jordan | Linda Tripp | Kenneth Starr | Sidney Blumenthal
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Monica Lewinsky |
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Lewinsky worked as an intern in then-White House chief of staff Leon Panetta's office at the White House during the summer of 1995 and was later hired as an assistant in the Office of Legislative Affairs there in December of that year.
She moved to a job at the Pentagon in April of 1996 and stayed there until late December of 1997.
While at the White House, she allegedly had an affair with President Clinton, though both denied having a relationship in sworn statements made for the lawsuit Paula Jones attempted to bring against Clinton.
But Linda Tripp, a friend Lewinsky met while at the Pentagon, apparently recorded twenty hours of telephone conversations with Lewinsky in which she described an ongoing relationship with Clinton. There are also reports of White House records that detail late-night visits by Lewinsky.
Lewinsky is reportedly ready to testify that she had an affair with the president and lied about it in her sworn deposition in the Jones case. She is also reportedly going to say that Clinton suggested they both deny the affair ever happened.
More important than the possible perjury charge is the issue of an anonymously written set of "talking points" allegedly given to Linda Tripp by Lewinsky on January 14. This document outlines how Tripp should give testimony about Kathleen Willey, who Tripp had said received unwanted sexual advances from Clinton in 1993. The document told Tripp to contradict herself and deny any such actions by Clinton. A battle has continued in recent months over the authorship of the "talking points." There may be evidence that Lewinsky herself was responsible for them, though she may also have been advised on them by others involved with the case -- who would be potentially vulnerable to obstruction of justice and conspiracy charges.
Lewinsky passing the document along to Tripp could itself qualify for the more serious charge of obstruction of justice -- except that Lewinsky now has immunity from prosecution.
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Lewinsky faced possible perjury or obstruction of justice charges. However, the transactional immunity deal negotiated between her lawyers, Jacob Stein and Plato Cacheris, and Starr's office give her protection from any criminal act she might have committed in relation to this case.
However, if she lies to Starr's grand jury, she could face new criminal perjury charges.
Federal perjury statutes are punishable by up to five years in prison.
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Lewinsky has all but admitted that her statements in the Jones affidavit are untrue. Assuming she chooses to stick with that story -- she had sexual relations with Clinton, she lied about it in her Jones affidavit -- her immunity protects her.
Her immunity came after months of negotiations, first by Los Angeles lawyer William Ginsburg, who was replaced by Stein and Cacheris, two Washington veterans. (Stein is himself a former independent counsel.)
Much of the problem with earlier proposed deals was that she would have received use immunity, which would have left her vulnerable to future prosecution by Starr.
Such deals are "sort of like what you and I get from Ed McMahon in the Publishers' Clearing House," says former independent counsel Michael Zeldin. "If you've got the correct testimony, I'll immunize you."
The president has admitted that the two of them had some type of relationship, but has not elaborated and maintains that the details should remain private.
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President Bill Clinton | Monica Lewinsky | Vernon Jordan | Linda Tripp | Kenneth Starr | Sidney Blumenthal
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Vernon Jordan
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What Jordan has admitted is that he helped Monica Lewinsky get interviews at American Express, Revlon and Young & Rubicam in New York. He also said he introduced her to Washington attorney Frank Carter when she came to him after being subpoenaed by Starr. But Jordan also said Lewinsky told him that she "absolutely and unequivocally" did not have an affair with the President.
Jordan is presumably under suspicion because of previous allegations that he dangled a proverbial carrot of consulting contracts in front of Webster Hubbell in return for Hubbell's silence earlier in Starr's investigation. However, those charges remain unproved and Jordan has repeatedly maintained that he had no knowledge of any sort of potential deal with Lewinsky for her testimony -- or about any sexual relationship between Lewinsky and Clinton.
Another suspicion is that Jordan tried to coerce Lewinsky to lie about an alleged affair or to keep her from giving testimony to Starr or to Paula Jones' attorneys. Within a day of Lewinsky submitting an affidavit in the Jones case, Jordan reportedly called officials at Revlon, where he is a board member, and a job offer was extended to Lewinsky soon after. She had submitted a job application there several weeks before. Revlon has since withdrawn the offer. Jordan claims he has helped many young people over the years to get jobs.
Jordan also apparently claims that he informed Clinton that he was helping Lewinsky find a job and was not aware at the time that she was going to be called in the Jones case. When he found out, he reportedly claimed he confronted Clinton and the president told him that he "never, no way" did he have a sexual relationship with Lewinsky.
On March 3, he began testimony before Starr's grand jury.
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SUBORNATION OF PERJURY: The same issues involved with potential subornation charges against Clinton. If it can be shown that Jordan -- who publicly denied any such action -- tried to get Lewinsky to lie under oath, he could be subject to subornation charges.
OBSTRUCTION OF JUSTICE: Less specific than subornation. If Jordan tried to keep Lewinsky from telling the truth under oath or from testifying at all, an obstruction charge could be brought against him.
CONSPIRACY: If Jordan and Lewinsky -- or Jordan and Clinton --discussed the possibility of blocking Lewinsky from testifying or telling the truth, it's a potential conspiracy charge.
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Starr's grand jury would need to be shown some evidence that Jordan ever got involved in this affair, beyond trying to help Lewinsky find a new job and a lawyer at the behest of Clinton's personal secretary, Betty Currie, who has testified before the grand jury numerous times. If they find an adequate link to Jordan, they could indict him.
Starr may be trying to somehow tie Jordan to the anonymous "talking points" -- though there is no evidence that Jordan wrote them. But it now seems that Lewinsky may be the author. Tripp may also have been involved with the talking points, though she vehemently denies any involvement.
Starr also subpoenaed Frank Carter, the lawyer to whom Jordan brought Lewinsky for assistance. Carter fought the subpoena, but was ultimately forced to testify before the grand jury.
But Carter says he was never let in on any salient details about Lewinsky's dilemma. "I never received any kind of information from her at any time that contradicted anything that's in that affidavit," he told the Washington Post.
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President Bill Clinton | Monica Lewinsky | Vernon Jordan | Linda Tripp | Kenneth Starr | Sidney Blumenthal
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Linda Tripp
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Tripp recorded 17 tapes of phone conversations with Lewinsky from her home in Columbia, MD. She presumably made these recordings without the consent of any authority and without Lewinsky's knowledge or consent.
She contacted Starr's office on January 13 and told them about the tapes. She also told them that she was meeting Lewinsky the next day for drinks. They worked with Tripp and the FBI to set up a sting and when Tripp and Lewinsky had drinks in the bar of the the Ritz-Carlton hotel in Virginia, she was wearing a wire.
It was during that meeting that Lewinsky allegedly gave Tripp the set of talking points instructing her to reverse her previous statements about White House volunteer Kathleen Willey, who Paula Jones' lawyers believed was the target of unwanted advances from the President. When Tripp met Lewinsky for drinks again two days later, the FBI and Starr's staff stepped in and approached Lewinsky to talk. It was during that initial encounter they reportedly made their first attempt to "flip" Lewinsky.
Among other things, Tripp reportedly said she made the tapes so that she would have proof of her allegations. Reportedly, she was upset that Clinton lawyer Bob Bennett questioned her reliability as a witness.
On January 29, Tripp released a statement defending herself and stating that "Monica described every detail of the relationship during hundreds of hours of conversations over the past 15 months. In addition, I was present when she received a late night phone call from the president ."
"I felt and continue to feel horror at the abuse of power and emotional anguish she has endured over a two-year period," said Tripp, who some people accused of misleading and mistreating Lewinsky by taping 20 hours of conversations between the two.
Tripp was finally brought before Starr's grand jury in July and has provided several days of testimony.
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WIRETAP LAWS: Maryland wiretap laws require that all people being recorded consent to the recording. Breaking that law is punishable by up to five years in jail and a fine of $10,000. Federal wiretap laws only require one person's consent and are not at issue.
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If the tapes are shown to have been recorded in Maryland -- which they would have been if she recorded them at home -- she could be prosecuted under the Maryland statutes.
State wiretap laws vary widely, so Maryland requires proof that the person making the recording knows he or she is breaking their particular state law in order to be charged -- though recordings made by someone who doesn't know about the Maryland law may not be admissible as evidence in a state trial.
"It's contrary to the maxim that ignorance of the law is no excuse," says University of Baltimore law professor Lynn McLain.
Moreover, says McLain, "Violation of state law doesn't preclude [the tapes'] admissibility in federal court."
Local Maryland prosecutors had said they would investigate Tripp's recordings, but not until Starr's investigation is complete. One local Democratic club and some Democratic members of Maryland's House of Delegates requested Howard County attorney Marna McLendon to press charges. But McLendon said she would pass the case up to state prosecutors. State prosecutor Stephen Montanarelli has launched a grand jury investigation, but has denied that politics played any part in it.
Of course, if Starr has adequate evidence from the Virginia conversations between Tripp and Lewinsky or from other sources, the Maryland tapes may not be needed.
It is possible Tripp could have legal trouble if she authored the talking points, but claimed July 29 that those allegations are "as illogical as they are patently false."
"I have been vilified for taking path of truth," said Tripp.
Since Tripp is one of Starr's primary witnesses, it is unlikely Starr would choose to pursue Tripp as a target as his investigation.
However, Tripp still faces the Maryland grand jury, which reportedly heard testimony from an employee at the Radio Shack where she bought the recording equipment to tape Lewinsky. The employee reportedly told the grand jury that Tripp was informed when she bought the equipment of the Maryland requirements for recording telephone calls.
Because Maryland law requires knowledge of the law's specifics about recording, Tripp having been informed of the law could put her in some legal jeopardy.
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President Bill Clinton | Monica Lewinsky | Vernon Jordan | Linda Tripp | Kenneth Starr | Sidney Blumenthal
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Kenneth Starr
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Independent counsel Starr and his office were accused by Clinton lawyer David Kendall of numerous leaks to the news media. Kendall made a public accusation on February 6 and then filed a sealed motion in federal court in Washington on February 9, presumably accusing Starr of contempt and calling for the independent counsel's office to be investigated.
At his press conference, the usually camera-shy Kendall insisted that he wanted "judicial relief" and said that "the leaking of the past few weeks is intolerably unfair." Along with his statement, he released a 15-page letter to Starr that documented dozens of news reports from organizations from the New York Times to NBC News to the New York Post that he claimed were based on information given out by Starr or his staff. Some reports directly mentioned that they came from "sources in Starr's office" while others were more oblique in their references, using phrases like: "people familiar with the investigation," "sources close to Starr," and "officials with knowledge of Mr. Starr's investigation." [text of Kendall's letter]
Starr immediately responded with a fax to Mr. Kendall that called his accusations "strange and inappropriate" and hinted that Kendall's timing might have a strategic motivation. He stated that he had a long-standing policy against leaks in his office and that "it is a firing offense, as well as one that leads to criminal prosecution."
"Your role as private defense counsel and your loyalty to your client does not qualify you to lecture me on professional conduct and my legal responsibilities," Starr wrote. "Let's stick to facts. Let's find out the truth." [text of Starr's response]
In recent months, Starr and Kendall have been arguing about leaks in the case in front of U.S. District Judge Norma Holloway Johnson. Johnson allowed Kendall and others to officially investigate the leaks, but Starr appealed the matter.
A federal appeals court ruled that Johnson could continue with the leaks investigation -- based on her belief that Kendall had proved his allegations that Starr leaked confidential information. But the court also maintained that Johnson herself would be responsible for furthering the investigation, without assistance from Clinton's legal team.
Starr now must face Johnson and prove that any leaks from his office were not in violation of federal law.
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CONTEMPT CHARGES: Kendall claimed that Starr violated rule 6(e) of the Federal Rules of Criminal Procedure. Rule 6(e) is a comprehensive set of guidelines which specify the particular circumstances under which evidence and testimony before grand juries can or cannot be revealed.
[ text of rule 6(e) ]
Grand jury proceedings are -- by definition -- supposed to be sealed. Only the prosecution, the jurors and a single witness are allowed to be present in the jury room. Even lawyers for witnesses are not allowed in -- though a witness can go outside the room at any time, without limitation, to consult with his or her lawyer.
Neither the prosecution nor the jurors are allowed to discuss testimony before the grand jury with anyone. If Starr or his office spoke to any member of the media about the proceedings of the grand jury, it is possible they could be found in violation of the laws surrounding grand juries.
However, witnesses before the grand jury -- and their lawyers -- have no restrictions on what they can say. In fact, a witness could give a detailed description of their testimony.
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The difficulty in proving these charges is determining where the leaks came from. There could be three ways to investigate: force Starr staffers to reveal if any of them spoke to the media, sift through phone records and credit card statements to pin down contact between Starr's office and members of the media, or force the reporters who cited the sources to reveal who gave them their information.
The district court in Washington will probably play a significant role. Chief Judge Norma Holloway Johnson has reportedly forced members of Starr's office to testify about the leaks during a contempt hearing. Their testimony could be extremely sensitive to the investigation and it is likely any such hearing would be closed. Moreover, Starr has appealed Johnson's ruling in an attempt to avoid having to air the internal workings of his office.
Johnson has oversight of Starr's grand jury, and any possible abuses of the grand jury would need to be brought before her.
What is murkier, however, is who would take responsibility for investigating Starr and his office. The independent counsel statute doesn't cover investigations of independent counsels -- and there is really no precedent. The task would probably go to an investigator assigned by the attorney general, but the Justice Department is reportedly struggling with the attempt to find an answer.
Previously, Deputy Attorney General Eric Holder rejected requests by Starr to have either the FBI or former Justice Department official Michael Shaheen, Jr. conduct an investigation into leaks. Holder insisted that Judge Johnson take responsibility for deciding how leaks be investigated.
Contempt proceedings -- though rarely brought against prosecutors for leaking to the press -- are standard legal practice and the law covering grand jury secrecy is clear.
"If a prosecutor violates it, they can be punished," says Thomas Sargentich of American University's Washington College of Law. "They can be removed, and I think it would be grounds for a judge to fine or even criminally go after an independent counsel."
Starr has indicated he would conduct his own internal investigation, which would then force responsibility onto the individual staffers.
If the investigation goes ahead, one weak link could be the reporters who leaked the information. Journalists often argue that their First Amendment rights cover their rights to print material from confidential sources. But there is some controversy over the case law surrounding the issue of source protection.
Most of the law focuses on a 1972 Supreme Court ruling, Branzburg v. Hayes. In that case, a reporter in Louisville, Kentucky published articles detailing the local drug culture. Local prosecutors tried to force the reporter, Paul Branzburg, to testify about what he saw as a witness before a grand jury, and Branzburg balked.
The Supreme Court ultimately decided that Branzburg was required to testify. However, the court's split decision didn't help to resolve the larger issues in the case and lower courts have been wrestling with it ever since.
"Most courts require that the information being sought go to the heart of an important issue in the case," says Los Angeles attorney Rex Heinke, who specializes in media law. "In addition, most courts require the person who subpoenaed the reporter to have exhausted all other alternative sources."
The Branzburg case also caused several states to pass local reporter shield laws to protect journalists' rights.
Because rule 6(e) is narrow in its scope, the only leaks covered under a contempt charge would pertain specifically to testimony in front of the grand jury. Reporting about other aspects of the investigation or about Starr's strategy would not likely be held to a contempt standard. In his public letter, Kendall brandished fiery rhetoric but meager evidence tying leaks by Starr to specifics about what witnesses have told the grand jury.
"He has to tie the leak to a leak of grand jury testimony," says Northwestern University law professor Paul Robinson, a former federal prosecutor and counsel to the Senate Judiciary Committee.
Exactly what evidence Kendall presented to Johnson that caused her reported decision to allow an investigation of the independent counsel isn't publicly known.
Starr has maintained -- and it has been widely suggested -- that the leaks may have come from others involved with the grand jury hearings. Only leaks from Starr's office (or from jury members, though that is unlikely and just as illegal) would potentially qualify for a contempt charge.
"What Kendall has done is highly unusual," says Heinke, who has represented numerous journalists seeking to protect their sources. "When there are leaks, it tends to be the judge...who says there are leaks and you need to do something about it."
Of course, Clinton's legal team could have other motives than trying to get Starr's employees found guilty of contempt. Many of the leaks Kendall cited were potentially damaging to the president and the attack on Starr may be an attempt to silence his office.
"The lawsuit may not lead to the ultimate result of proving that the prosecutor leaked the information," says Sargentich. "But it could still be effective in putting pressure on the prosecutor's office."
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President Bill Clinton | Monica Lewinsky | Vernon Jordan | Linda Tripp | Kenneth Starr | Sidney Blumenthal
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Sidney Blumenthal
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Clinton aide Sidney Blumenthal was called before Kenneth Starr's Washington grand jury on February 26 to answer questions about conversations he had with reporters about Starr and his investigation.
Blumenthal was indignant about being subpoenaed.
"I never imagined in America that I would be hauled before a federal grand jury," he said. "If they think they have intimidated me, they have failed."
His attorney, Jo Marsh, said he was primarily asked about what he told reporters about Starr and his prosecutorial team.
Starr has been widely criticized for his subpoenas of Blumenthal and investigator Terry Lenzner (whose company has performed investigative work for Clinton lawyers) by critics who claim Starr is using his subpoena power to intimidate the President's legal team.
But Starr defended himself, saying that "an avalanche of lies" had been perpetrated about him and his staff and that he was seeking information about efforts by the White House to hamper his investigation.
Blumenthal originally claimed that he was covered by executive privilege and would not have to testify to certain matters before the grand jury. But it was determined that no such privilege existed.
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OBSTRUCTION OF JUSTICE: It is possible, but doubtful, that Starr would pursue obstruction charges against Blumenthal or other White House staffers if Starr is able to show evidence of a coordinated effort to discredit him and his investigation.
Even some legal experts believe Starr needs to move on and return his focus to his investigation of possible misdeeds by Clinton and Lewinsky. However, if Starr is gathering evidence of a broad-based pattern of obstruction by White House staffers, testimony from Blumenthal or other White House aides such as Bruce Lindsey may be crucial.
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Charges against Blumenthal are extremely unlikely, since it would be difficult for Starr to make the case that an investigation into White House efforts to hamper his work would be covered under his current authorization.
But he has the authority to subpoena a broad spectrum of people, so long as they can provide testimony that is at least tangentially relevant to his work, including staffers like Blumenthal.
"It's not like that's a crime or it taints you. You go before a grand jury, you give your testimony and you leave," says New York University law professor James Jacobs. "Welcome to the real world. People get called before grand juries all the time."
The White House has worked to prevent some Presidential aides -- such as Bruce Lindsey or special White House counsel Lanny Breuer -- from testifying by arguing that they are covered by executive privilege. But the federal appeals court in Washington ruled that the privilege does not extend to Lindsey or other presidential advisors if their testimony may involve evidence of criminal wrongdoing.
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President Bill Clinton | Monica Lewinsky | Vernon Jordan | Linda Tripp | Kenneth Starr | Sidney Blumenthal
last updated September 10, 1998
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