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Look for the Leak and Prosecute

The pressure to obtain Lewinsky's cooperation caused shortcuts detrimental to the case and to all involved.

January 27, 1998|RONALD K. NOBLE | Ronald K. Noble held key Justice and Treasury positions in the Reagan, Bush and Clinton administrations. He teaches at New York University School of Law

The citizens of the United States, President Clinton, Vernon Jordan and their families have been done a disservice by someone. If the someone is a prosecutor, federal investigator or government informant, then the disservice could amount to prosecutorial misconduct or a crime. Unfortunately, the very nature of the disservice or crime makes it unlikely that the American people or the victims will ever find out who is responsible unless extraordinary steps are taken. More important, as a direct result of the disservice or crime, the president and Jordan may well be unable to exonerate themselves as they otherwise would have had the opportunity to do. The disservice or crime to which I refer is the perfectly timed leak concerning the alleged surreptitious recordings by Linda Tripp of conversations with Monica Lewinsky.

Because of the leak, the news media are in a feeding frenzy about the possibility that a sitting president and a highly respected lawyer might have encouraged perjury, obstructed justice or engaged in perjury. This speculation has led to discussion of grounds for impeachment of our president.

My starting point is with grand jury secrecy. The intentional leaking of grand jury information by a prosecutor, investigator or a member of Independent Counsel Kenneth Starr's staff would constitute a federal crime. The purpose underlying such a strict requirement of secrecy is exactly to prevent the harm being suffered by Clinton, Jordan and their families.

If the person responsible for the leak is not subject to grand jury secrecy requirements, that person may have committed a federal crime--obstruction of justice. The leak makes it virtually impossible for Clinton and Jordan to exonerate themselves and to remove the suspicion attending these allegations, and for Starr to investigate this case as he otherwise would have.

Because of the leak, Lewinsky had only hours to decide whether to cooperate--hours in which she did not have legal counsel present. Believing that a news story about the taped conversations was about to break, the prosecutors gambled that they could persuade her to cooperate, rather than following a more deliberate path of other options.

Had the leak not occurred, the independent counsel's office might have met with Lewinsky's attorney and shown him the evidence, including the tapes and his client's other statements about her relationship with the president. Lewinsky's attorney would be persuaded that she should cooperate or else she would be investigated for perjury, obstruction of justice and conspiracy. But unless she admitted that she lied in the affidavit she gave in the Paula Jones investigation, or unless the president's semen was found on her clothing (as she allegedly asserted to Linda Tripp), the independent counsel never would pursue a perjury case against her.

Why? Because Lewinsky would then have the power to testify in her own defense. If she testified that she never had sexual relations with the president and that neither he nor Jordan told her to commit perjury, she would either be convicted or not. If she were acquitted, the case against her would end and the case against the president and Jordan would disappear. If she were convicted of perjury, she would thereafter be useless as a witness.

Under these assumed facts, how could the independent counsel bring a prosecution against the president for perjury (even if the Constitution permitted it)? Without Lewinsky's testimony, virtually all of her tape recordings would be inadmissible--except probably any containing the president's voice.

Had the leak not occurred, the independent counsel's office would have had the option of getting Lewinsky to cooperate fully. Granting her immunity would present other problems. If she then admitted to perjury, she would not be punishable under the law. The defense would be able to argue that her testimony had been bought. To repair the damage to her credibility, the independent counsel's office would have to corroborate her testimony as much as possible.

There was only one real option. The independent counsel's office would have wanted Lewinsky to arrange a meeting with Jordan and surreptitiously record the conversation between them. She might have said something like: "I'm still worried that someone will find out that I lied in my affidavit." Jordan could have said in response: "Why did you lie? You told me that you and the president never had sexual relations."

One could argue that Lewinsky's failure to agree to wear a wire against Jordan supports the view that she knew Jordan and the president did not tell her to lie. But because of the leak, Jordan was not afforded the equal opportunity to have his denials on tape.

Since we do not know who leaked this matter and jeopardized the independent counsel's investigation and threw our country into turmoil, Starr must take immediate steps to identify and prosecute the persons responsible for the leak. Only then will he have restored public confidence in the integrity of his investigation.

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