Professional Documents
Culture Documents
18-1121
!Screened by NARA (RD-F) 08-23-2018 FOIA # 58105 (URTS 16344) DOCID: 701054641
UNDER SEAL
January 29, 1999
With these enclosures, it is our understanding that you have copies of all of the
briefs and evidence submitted by OIC, all of the Special Master's exhibits, the transcripts
of the hearing held in December, and the movants' October 15 submission. After we
confirm that fact with your clerks, we would like to have the Court's permission to
destroy our copies of those documents.
PROCEDURAL BACKGROUND
news reports published between January 23, 1998 and June 2, 1998 1
25 Order at 20.
1
The twenty-four news reports are compiled in a binder that has been
designated SM ("Special Master's") Ex. 1.
-1
determining whether the OIC has violated Rule 6(e) ." Id.
Id.
20-21. The Special Master was directed "to keep a record of all
21.
In Re: Sealed Case, 151 F.3d 1059, 1075 (D.C. Cir. 1998).
-2
deemed appropriate.
3
The November 2, 1998 submission addressed the nine prima facie violations
that were not the subject of a motion for reconsideration that ore filed
concerning the September 25 Order. After the Court denied the motion for
reconsideration, the Special Master ordered the OrC to file its rebuttal of
the remaining fifteen prima facie violations.
-3
U.S. 211, 218, 99 S.Ct. 1667 (1979). Grand jury secrecy is "a
4
Those witnesses were( !Jacki e Bennett, Michael Emmick, Stephen Binhak
a nd I ]_.
~
5
Rule 6)e) ~ 3J. t-A1' (ii) provides:
&;,_,,.. -
-----~
FOIA(b)(6)
(A) Disclosure otherwise prohibited by this rule of matters occurring
before the grand jury, other than its deliberations and the vote
FOIA(b)(7) - (C) of any grand juror, may be made to
* * *
(ii)such government personnel 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.
-4
Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399,
practice.
grand jury secrecy also helps to assure that the grand jury's
and pressures. Lance v. United States, 610 F.2d 202, 213 (5th
Cir. 1980).
follows:
-5
Service, 656 F.2d 856, 869 (D.C. Cir. 1981), quoting SEC v.
before the grand jury" extends "not only [to) what has occurred
Motions of Dow Jones & Company, Inc., 142 F.3d 496, 500 (D.C.
Se e Dow Jones, 142 F.3d at 505. That point comes, for instance,
Third, we must bear in mind that Rule 6(e) does not apply
-6
the prosecutor does not have. ore at times obtained leads from
reporters that aided its investigation. Starr Deel. SM Ex. 2,
-7
Barry v. United States, 865 F.2d 1317, 1321 (D.C. Cir. 1989)
quoting United States v. Eisenberg, 711 F.2d 959, 963 (11th Cir.
Once a prima facie showing is made, the district court must hold
With the burden now upon OIC to address the prima facie
case against it, the Court of Appeals has ruled that OIC:
Id.
-8
F.Supp. 888, 890-94 (D.D.e. 1990). ore has submitted these and
FACTUAL BACKGROUND
-9
was held by Jackie Bennett, who was also in charge of the day
trained for." Tr. 123-24. Indeed, his training was mostly on
anything in his exchange with Mr. Bennett and (2) could not use
-10
received less than half a dozen telephone calls each week from
Tabs B-C.
-11
-12
on January 21, 1998, the day that the Lewinsky matter became
public, stated:
SM Ex. 6.
in the Paula Jones civil action, (2) that Mr. Jordan, allegedly
employment for Ms. Lewinsky, and (3) that Ms. Tripp had recorded
was taking place. Bennett Deel., SM Ex. 2, Tab 2, para. 32; Tr.
216-17.
-13
-14
para. 2.
the Ritz Carlton Hotel in the Pentagon City Mall to seek her
Report 12.
intended to seek comment not only from OIC, but also from the
Wh ite House and Mr. Jordan, and that a story would be published
-15
1998. The mainstream media shortly picked up the story, and the
and print media were saturated daily with stories about the
the United States Courthouse in which the grand jury sat. The
-16
that there were many individuals outside of ore who, at the time
the press.
matters as how his client was treated when ore first confronted
-17
Ms. Goldberg arranged for Ms. Tripp to meet with Mr. Isikoff of
the press during the time period relevant to this inquiry. One
for her grand jury testimony, were also in contact with the
-18
-19
Bennett Deel., SM Ex. 2, Tab 2, paras. 16; Tr. 133, 137-46. Mr.
the Special Master that the practice of handling all press calls
-20
surreptitiously.
broke down under the strain. One ore attorney testified that he
- 21
the OIC attorney does not mean, however, that OIC turned a blind
leaks in early February 1998, Judge Starr and Mr. Bennett asked
When asked by OIC again several weeks later, DOJ again declined.
Tr. 96-97.
by the movants' allegations that the OIC was leaking grand jury
-22
reports at issue.
* * *
Meanwhile, a source close to Starr said investigators
are waiting to see whether Lewinsky wants to cut a deal in
exchange for immunity. If she does, the case could be
wrapped up in months. If not, the investigation could take
a year.
* * *
-23
Every current and former OIC employee has sworn under oath
office on January 22, 1998 - the day before the article was
Jordan is inaccurate - and therefore that ore was not the source
-24
All ore personnel state under oath that they were not the
Bennett Deel., Ex. 2, Tab 2, para. 45. But, that was certainly
7
Oie also takes Mr. Galvin to task for sloppy reporting and for lifting the
first disclosure from an Associated Press article written by Pete Yost that
had appeared the day before. The Yost article, however, suggested that the
information came from Linda Tripp's tapes which, by that time, were in the
hands of numerous people outside of ore. We see no need to explore that
argument further, except to comment that Mr. Bennett also denies speaking
with Mr. Yost about the disclosures at issue in this article. Tr. 214-15.
8
It is important to note that at this point, the proffers consisted only of
Ms. Lewinsky's written proffer, and Mr. Ginsburg's oral proffer. At the time
of the article, no interview of Ms. Lewinsky had yet taken place. Bennett
Deel., Ex. 2, Tab 2, paras. 42, 45.
-25
also found in the fact that he used the word "snippets" in five
finds that OIC has successfully rebutted the prima facie case
* * *
[2]. Sources in Starr's o ffice and close to Linda
Tripp say they believe the instructions [i.e., the
"talking points"] came from the White House. If true,
that could help support a case of obstruction of
justice. But sources also tell NBC New Lewinsky has
-2 6
Ms. Shipman called him to say that Mr. Ginsburg had informed her
that immunity negotiations had broken down because ore was being
record, that ore was not being unreasonable, and that the
may have said something to the effect that the two sides were
"not on the same page," although he does not recall the precise
Mr. Ginsburg that ore was being unreasonable does not constitute
record manner, Mr. Bennett's comments did not reveal any actual
-27
n.5.
Ex. 2, Tab 2, paras. 52, 55; Tr. 242-43, 250. The declarations
of all other OIC personnel also deny that they were the source
of these disclosures.
Shipman's suggestion that OIC was the source of the second and
NBC Nightly News, Mr. Bennett became angry that Ms. Shipman had
247. Bennett Deel., SM Ex. 2, Tab 2, paras. 52-55; Tr. 246. The
(SM Ex. 2, Tab 2). The script does not attribute the disclosures
apartment to ore.
Rather, with respect to the talking points, the script
-28
"close" to ore - in the sense that they were in contact with ore
attorneys - included Mr. Ginsburg and Ms. Tripp. Bennett Deel. ,
had discussed the consensual search. See Binhak Supp. Deel., Ex.
evidence provided by ore, the Special Master did not pursue Ms.
-29
9
Mr. Bennett also produced for the Special Master's review a memorandum to
the file dated October 30, 1998. SM Ex . 9; Tr. 248-49. The memorandum
reflects a telephone call to Mr. Bennett's home by a USA Today reporter, Tom
Squitieri, who told Mr. Bennett's wife that he was calling on behalf of
Claire Shipman who ha d jus t learned o f Judge Johnson's show cause ruling, and
who wanted Mr. Bennet t to know that she had never identified ore as a source.
Mr . Bennett thought this was curious, given her February 4 broadcast in which
she clearly identified ore as a source. The Special Ma st er places no weight
on this quadruple hearsay, but merel y brings it to the Court's attention.
-30
vexing to the Court, which had placed the order under seal.
Court.
As for Rule 6(e), OIC argues that the Court's opinion had
his remark, ABC, NBC and CBS all ran lead stories, albeit
reports in the hours before Mr. Starr's remark, OIC takes the
position that the Court's opinion and its c o ntent had lost its
-31
that Ms. Tripp was meeting regularly with ore investigators was
representatives.
-32
required.
All OIC employees deny under oath that they were the source
-33
the prima facie case, but also notes that, as with the prior
- 34
became public. The portions of article that the Court has found
* * *
Newsweek told Starr's deputies that the magazine was
planning to run with the story in the issue that
appeared that Monday . . . . Starr's deputies asked
Newsweek to hold off . . . . Starr was hoping to confront
Lewinsky and persuade her to cooperate as a witness
for the prosecution. Starr's deputies did not want to
tip off Lewinsk y or Jordan or the White House.
* * *
-35
nascent investigation.
Linda Tripp contacted ore for the first time on January 12 with
for Ms. Tripp to meet Ms. Lewinsky the next day, January 13, at
the Ritz Carlton. Mr. Tripp wore a "body wire," and the
had told ore the day before. ore attorneys met with high
between Ms. Lewinsky and Ms. Tripp on January 16, at which time
coo perati o n.
the President and Mr. Jordan, that he even knew that Ms. Tripp
difficult situation.
-36
-37
-38
discuss the talking points with Mr. Isikoff, nor did he state
11
The Special Master is in receipt of a letter sent to the Court by a local
law firm at the direction of one of its clients. The letter states that a
driver for a local car hire company had picked up Michael Isikoff at OIC's
offices on January 15. Mr. Isikoff used the car's telephone and reportedly
stated that:
he, Isikoff, had been at Mr. Starr's office "all afternoon," had been
listening to tapes and "it was worse than you ever could have
imagined." Isikoff stated that he had been at Mr. Starr's offices for
4 to 5 hours.
The letter provided telephone numbers for the driver at his home and in
his car. The Special Master attempted over the course of several weeks to
contact the driver at these numbers, but both were disconnected. The Special
Master then contacted the driver's company, and was told that the driver no
longer worked there. The company had no information as to where its former
employee could be located. The Special Master did not pursue the driver
further. Given the state of the record, the Special Master credits Mr.
Bennett's testimony that DIC did not play the tapes for Mr. Isikoff, and is
convinced by the evidence that Mr. Isikoff knowledge about Ms. Tripp's tapes
arose prior to January 15.
-39
mandate had not yet been expanded, and thus there was not yet a
rebutted the prima facie case against it. Asking Mr. Isikoff to
in v estigation, where
knew;
-40
grand jury.
investigation.
* * *
All ore personnel swear under oath that they are not the
including Ms. Tripp, her attorney Mr. Moody, and Ms. Goldberg.
-41
para. 2.
Likewise, the fact that that the FBI was seeking interviews
or that ore was issuing subpoenas was known to the White House
and Pentagon employees from whom the interviews were sought.
* * *
-42
employees swear under oath that they were not the source of the
disclosure.
rebut the prima facie case, but note further that the likelihood
that the source was someone outside the OIC is increased by: (1 )
"dally"ing; and (2) the fact that the article itself says that
* * *
For all o f yesterday's the [sic] public jousting
between the lawyers, a source said Starr's
investigators searched her Watergate apartment with
-43
* * *
According to a source close to the prosecutors, Lewis
[Ms. Lewinsky's mother] was puzzled about why they
were intent on making a criminal case at all, saying
"What's the big deal? So she lied and tried to
convince someone else to lie."
article, but that it was justified in doing so, and that no Rule
-44
but does not provide a great deal of detail. See Bennett Deel.,
David Willman of the Los Angeles Times and give them the "full
Tab 12, paras. 4-5; Bennett Supp. Deel., SM Ex. 3, Tab 11,
and who therefore had the mo si contact with her on that day.
Tr. 15-16 . .
and Mr. Willman were to be off the record. Tr. 21-27. Mr.
Ms. Lewinsky was treated. Tr. 32 -35, 56-57; Emmick Supp. Deel.,
-45
see also Emmick Supp. Deel., SM Ex. 3, Tab 12, para. 10. He
Rule 6(e) for Mr. Emmick to discuss the detail s of the encounter
12
Mr. Emmick remembers that Mr. Bennett asked him to speak to a third
reporter , whose name Mr. Emmick could not remember. He did not contact that
reporter, however, as it became too late at night to do so. Tr. 31.
-46
at 37.
-47
Mr. Emmick's denial, and the denials of all other ore personnel,
rebuttal.
finds that ore has rebutted the prima facie case against it with
of this report:
-4 8
comment on this rumor. Mr. Bennett states under oath that while
that ore was investigating the matter. Id.; ore Br. at 44.
All other ore personnel similarly swear that they were not
14. Howard Fineman and Karen Breslau, Sex, Lies and the
President, Newsweek, Feb. 2, 1998.
3
t We have previously explained that Ms. Shipman declined to provide any
testimony on her contacts with ore.
-49
OIC's brief states that "we did not provide Newsweek with
ore, but bring to the Court's attention evidence that ore relies
the fact that the body wire tape appeared to confirm some of
shared information from the body wire tape, but did not leave a
14
Because OIC's suggestion that DOJ was the source of the leaks is,
ultimately, speculation, we do not include in this report the names of the
DOJ attorneys to whom OIC disclosed the contents of the body wire tapes.
Those names are, of course, available to the Court upon request.
-50
-51
personnel state under oath that they were not the source of this
disclosure.
case against ore, but note further that ore has submitted
Order, a producer for ABC News (whose name is not used in this
state that ABC did not obtain the information on the negative
within the FBI crime lab. Bennett Supp. Deel., SM Ex. 3, Tab
yet informed the FBI of this alleged leak from its lab. Tr. 290.
15
A dress tested at a late r date provided positive results for DNA evidence.
- 52
Tr. 294-95.
19. Don Van Natta, James Bennett, Starr Turns down Limit
on Questions to Clinton's Aides, New York Times,
February 5, 1998.
F.2d at 217 and n.5. Furthermore, the fact that OIC and Ms.
-53
FOIA(b)(6)
FOIA(b)(7) - (C)
-54
FOIA(b}(7) - (C)
,, I\ '
I ' I I \
inforrrled #Mr t 11 Bennett of \~l\16\ conversation with Ms.
~-----~ LT _;f' ';; ~ ·~. \, \\
Schmidt shortly a;er Nj'r. B~nnett had ce·, ied· a meeting on
11 1 ,11, \ I' 1 \ \
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rln (' ~ \ \ \
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11
~------~,----1,~--~,
: admits that CJ12{.the\· \told Ms. I11 II \ \ \
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Schmidt or •Confirmfid that I O~C had given Ms'\"' 1iewiqsky' s attorneys
I ,11 I I I I \ \ \
I 71 I I
.__~___._'~~~-'-----r-;;_.~~~~-.-.\I'
~----~lappearedf befpfe the Special Mast~r artd was
I I I
carefully questioned abbut~telephone call with M~. Schmidt.
I I \
Based on the Special Ma;stero'I s evaluation of .___ _ _ ___._. demeanor
I
I \I
and credibility, the S~ecia;1 Master believes that I....._______.I has
I I
violation.
-55
FOIA(b)(7) - (C)
/
, " I "\\
' ,,,.,
F or .i;:&asons a 1 rea d y eZ>p . ~\\ ' ' ,we do not
I 1 ain~i;i'\ b e 1 ieve
. - ~
that -1
~--~""...... ,,,., I ~,\ \ ' \ .....___ ___,
.______.I disclosure that Ms. ; Lewins',lf'v\ ~us~ cooperate or face
prosecution, al though unau~horize~\ ....
I ·"I(.,....\_,_\--'------.I
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amounts to a
I 1' I \ \ '
violation of Rule 6(e). S~e Lancal•v.' Ur\ited States, 610 F.2d at
I I \
,I• I \ \
217, n.5.
1' I \ \ \
II I \ \ \
I I \,- \
The fact that there were unspe,c:;irisd c'ontradictions in Ms. I I
I 1' I \ \ \
Lewinsky's proffer, while bad practice' t~ dis,close, also does
I 1' I \
I I• \ \ \
not provide any informatiqn about t~e s~o~~ or\direction of the
I ' ' '
I I I \ \ \
grand jury's investigatiod, the evi~efilca be¥ore the grand jury,
I I \ \
I \ I I I \ \
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. I I
I \
\
\
I
I
['~e. Spe,cial {'1aster was
~-------------------~ I I I \
'
surprised to learn, however, t h a t , s u p erq _ o\. r s did notI '
I I I \
-56
\
l6
had also been authDrized, believes by Judge Starr himself, ~o
talk to on various issues. ~
r-~~~f--,,..,...-~~~~~--.,.-~~--,-~---,~~~....,...~~--:-~----'
Those conversations do not pertain to the articles at issue here.
-57
* * *
At this point, sources say prosecutors are not
sure they would get the truth from Monica. So some
see indicting her as, quote, "the least bad option."
once again that there were several sources outside ore who could
have provided these disclosures. The declarations of all OIC
-58
22.
by Mr. Ellis about the White House witnesses. ore has also
when contrasted with what ore knew, suggests that OIC was not
Master that he would not, and would move to quash any subpoena
the Special Master finds that OIC has rebutted the prima facie
-59
testimony:
All ore personnel deny being the source of t his rep o rt,
thaL the day before this story aired, Ms. Willey was interviewed
42 .
stro ngly suggests that Ms. Willey was the source of the CBS News
rep o rt about the substance of her grand jury testimony . See id.
The report also states that Ms. Willey had given the same
- 60
All ore personnel deny that the y were the sourc e of thes e
disclosures . These include the two ore person nel who attended
office of the FBI. Page Supp. Deel., SM Ex. 3, Tab 21, para. 2;
who were not detailed to ore were present when Ms. Lewinsky
visited the FBI's Los Angeles offices. They would have been
-6 1
CONCLUSION
that OIC has rebutted the prima facie showing that it was the
Order.
Respectfully submitted,
' ~1
~ As for the information about what occurred during Ms. Lewinsky's visit to
an FBI office in Los Angeles to give handwriting, voice, and fingerprint
sampl es, Ms. Lewinsky's representatives made no secret that the visit would
take place. SM Ex. 3, Tab 46. Ms. Lewinsky's visit to the FBI offices was
therefo re widely covered by the press - indeed, she refused an FBI to enter
and the office through the garage entrance . SM Ex. 3 , Tab s 47-48. Rather,
Ms . Lewinsky, her father, and her attorneys entered and exited the building
th rough the front entrance and in front of the assembled media. Page Supp.
De el ., SM Ex. 3, Tab 21, paras. 2 and 10 .
- 62
SM Ex. 1: Binder containing the twenty-four news articles at issue in this case
SM Ex. 4: Letter dated February 4, 1998 from Kenneth Starr to David E. Kendall
SM Ex. 5: Memorandum dated March 24, 1989 from Edward S.G. Dennis, Jr. to
All Employees, Criminal Division, re: Contacts with the Media
SM Ex. 9: Memorandum to File from JMB (Jackie M. Bennett] dated October 30,
1998
SM Ex. 10: Memorandum, FBI Logo, to Kenneth Starr, dated January 27, 1998
SM Ex. 12: Wall Street Journal Article, dated July 7, 1998 (with cover letter from
Donald T. Bucklin)