Document Type

Article

Publication Date

1999

Abstract

The critics of Kenneth W. Starr accused him, in the five-plus years that he served as the multi-tasked Independent Counsel, of many failings, mistakes, and improprieties. One of the most prevalent charges was one that has significance to lawyers and resonates with the general public's sense of bad behavior by prosecutors: the allegation that Starr and/or members of his staff "leaked" information. This general accusation was, of course, imprecise. It also might have been overbroad. Prosecutorial "leaks" include such plain illegalities as disclosing grand jury information to the media or other unauthorized persons, and also the much less regulated practice of leasing non-public law enforcement information. Although it may turn out that Starr and/or members of his staff illegally disclosed grand jury information, we already know—because we in the public learned only much later, and through lawful processes that made the information public, of grand jury secrets that Starr and his staff knew at much earlier points in time but did not "leak"—that they did not do so systematically. Indeed, Starr's Office of Independent Counsel was one of technical—indeed, perhaps overly technical—and very competent legality. Starr's decision to speak, and apparently to authorize his subordinates to speak, other than on the record was a choice. It was a policy decision by the person who was, within his areas of jurisdiction, the senior law enforcement official in the United States government. In the future, Starr's successor senior federal prosecutors should reconsider that decision and, in my view, decide to take a very different course. This Article explores what that course should look like. Part I defines and analyzes the two types of information—grand jury secrets and law enforcement information—that Independent Counsel Starr "leaked" according to the allegations that plagued his investigation. Part II examines the various restrictions on a prosecutor's ability to disclose law enforcement information. Finally, Part III sets out strict guidelines, characterized by accountability, professionalism, and uniformity, for the disclosure of law enforcement information by the government.

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