Independent counsel Kenneth Starr suggested that his conversations with reporters should be treated the same as those with confidential informers as he tries to stop a judge's investigation into whether he leaked grand jury evidence in the Monica Lewinsky case.
Starr argued to an appeals court that disclosing evidence of his office's contacts with reporters would mean "revealing confidential investigative information," court documents now made public show.
However, his argument was rejected when the three-judge court allowed a district court to proceed with its investigation of the leaks.
To bolster his argument, the prosecutor cited a 1981 court case that established an "informer's privilege" that allows the government to keep secret the identity of a person who furnishes information about criminal activities to protect them from possible retribution.
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He was seeking to block an order by U.S. District Judge Norma Holloway Johnson that he turn over evidence of his office's contacts with reporters in the investigation of alleged presidential sex and cover-up.
Sections of his arguments were blacked out in the court papers released last week that detail the secretly-fought battle with President Clinton's lawyers over alleged leaks. Charles Bakaly, Starr's spokesman, declined comment Wednesday.
But legal sources outside the prosecutor's office, who are familiar with the proceedings and spoke on condition of anonymity, said Starr specifically applied the argument to reporters, saying he wanted to keep confidential the information received from reporters, as well as their identities.
It's not unusual for reporters to provide information to law enforcement sources, especially in the process of gathering information and confirming facts, media experts agree. But they warned that the practice can raise ethical questions.
"Sometimes, reporters serve as intermediaries for news sources," said Herbert Strentz, a media law professor at Drake University. "If they have an agenda or are trying to accomplish a goal, to get in favor with prosecutors, that's where you invite abuse."
Darrell Christian, managing editor of The Associated Press, said, "Reporters must strictly avoid doing anything that would give even the appearance of taking sides in any story.
"To do otherwise," he continued, "wold undermine their objectivity and credibility. AP reporters are AP reporters, not investigators for Kenneth Starr or the White House."
Mr. Clinton's personal attorney, David Kendall, who prompted the leak investigation by complaining to Johnson, scoffed at Starr's argument that reporters should be treated the same as informers.
In his reply to the court, Kendall said most of the examples that Johnson found were evidence of improper leaks occurred at a time early in the Lewinsky investigation when prosecutors, not reporters, possessed the most information.
"A number of the most egregious apparent violations occurred in the very early days of the investigation and suggests little prospect that the press was providing information to [Starr's office]," Kendall wrote.
Starr has denied violating court rules that prohibit prosecutors from disclosing the evidence and proceedings of a grand jury investigation. He said while he did not violate those rules, his office needed to talk to reporters at times to correct misinformation that could affect the investigation.
But Johnson ruled that there was evidence of "serious and repetitive" disclosures of secret grand jury information from Starr's investigation and ordered the prosecutor to face a hearing to argue why he shouldn't be found in contempt of court.
Such a proceeding could lead to penalties against prosecutors. Starr appealed the ruling, and a three-judge panel concluded Johnson should proceed with the hearing but did not have to turn over evidence to President Clinton's lawyers during the proceeding that might harm Starr's ongoing investigation of the Lewinsky matter.
Written by Karen Gullo