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One expects to see muckraking biographies of presidential contenders as an election nears. So the appearance of two books about Sen. Hillary Clinton (D-N.Y.) was to be expected. More surprising, however, is the source of much of the muck: former independent prosecutor Kenneth Starr. Luckily for the authors, Starr doesn’t feel constrained by the rules of grand jury secrecy to which most prosecutors adhere. Her Way: The Hopes and Ambitions of Hillary Rodham Clinton is by two Pulitzer Prize-winning New York Times reporters, Jeff Gerth and Don Van Natta Jr. The heart of the book turns on information recently furnished by Starr, including a comprehensive telling of what happened during the grand jury investigation into the Whitewater real estate scandal and the death of White House aide Vincent Foster. In fact, the authors hype Starr’s cooperation: It is flagged prominently in the publisher’s promotional materials. We learn, for instance, about Clinton’s testimony before the grand jury on key questions concerning the disappearance and resurfacing of her Whitewater-related billing records. We also learn that some on Starr’s team believed those records to be inaccurate and misleading and that Starr actually had one of his lawyers draft an indictment against her. Clinton, of course, was never charged. Does Starr regret it? In view of the harshness of some of his comments, it’s a fair question, left unanswered. “I could have dumped on her,” says Starr, who then proceeds to be quoted over the next 100 pages doing precisely that. He invites a negative inference from every detail, and dramatizes details that to others might well seem mundane, or even tiresome. Of course, the limits on a prosecutor’s interaction with the press are far from absolute. At their core are concerns that a prosecutor will use his or her authority and resources to tarnish the reputation of an innocent person. While he served as independent counsel, Starr didn’t let these concerns hold him back. His office leaked information to key media allies�who had been carefully cultivated by Starr’s PR officer. But his disclosure of grand jury information is particularly troublesome. Starr appears to have violated the Federal Rules of Criminal Procedure, in particular the rule that requires that prosecutors maintain the secrecy of grand jury proceedings. GRAND JURY SECRECY? Does the secrecy obligation terminate when the grand jury is disbanded and a decision is made not to seek indictments? I put this question to Julie O’Sullivan, a former prosecutor who served with Starr in connection with the Whitewater investigation and who now teaches criminal law at Georgetown University Law Center. “It is very clear that the fact that an investigation has been concluded does not end the duty to comply with Rule 6(e), as the [U.S.] Supreme Court has noted,” she says, citing the pertinent rule. In a similar vein, John Barrett, a professor at St. John’s University in New York who formerly served with Iran-Contra independent counsel Lawrence Walsh, says, “The accepted standard is that if a prosecutor decides not to press a case, he buttons his lip about it forever. What Ken Starr has done in collaborating with the authors of this book is not in keeping with the best traditions of the profession.” Of course, this isn’t the first time that Starr’s relationship with the press has been questioned. At the time of the Whitewater investigation, Starr’s office got caught in a series of disclosures to the press. Judge Norma Holloway Johnson, generally reckoned a prosecutor’s judge, found that there had been “serious and repetitive” leaks by Starr’s office�and she excoriated Starr for them. (Starr always maintained that he wasn’t personally involved in the leaks.) FORESHADOWING A PATTERN But by far the most troubling aspect of the collaboration between Ken Starr and the authors of Her Way is how it parallels the pattern emerging from the current investigations into the inner workings of the Justice Department under John Ashcroft and Alberto Gonzales. The charge now leveled against them is that they used prosecutorial power as a political tool; that individuals were targeted or let off because of their political affiliations rather than the gravity of their offenses; that prosecutions were timed for maximum political effect; and that there was a regular process of interaction with the press designed to achieve a maximum political benefit. This behavior has brought about a crisis of confidence in the fairness of prosecutions of political cases today. Starr’s actions, both during the Whitewater investigation and in his recent disclosures, serve as a forerunner to this pattern. In the end, Starr may not have “dumped on” Clinton so much as damaged the reputation of federal prosecutors handling public integrity cases.
Scott Horton lectures at Columbia Law School, works on military contractor issues for Human Rights First, and is a member of the board of the National Institute of Military Justice. This commentary first appeared in the ALM magazine The American Lawyer.

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