by CHRISTOPHER B. COHEN
It is now time for Attorney General Janet Reno to open a formal inquiry to determine if someone, including prosecutor Kenneth Starr, should be disciplined or prosecuted for leaking grand jury testimony.
Recent leaks to the media, including supposedly secret grand jury testimony by President Clinton's secretary, are illegal under federal law and abusive.
If Clinton, the apparent target of this criminal investigation, is eventually charged, it should be done with the appropriate due process and unbiased investigation one would expect of normal criminal investigations. No potential defendant, whether an unknown indigent or a president, should be intimidated or subjected to third-degree tactics.
Rep. John Conyers of Detroit, the ranking Democrat on the House Judiciary Committee, has correctly asked Reno to investigate whether Starr engaged in "repeated instances of alleged misconduct and abuses of power." Abuse of power is not limited to beatings of the type the media exposed in the Rodney King case.
For high-profile targets, abuse can come from leaking secret grand jury testimony so reporters will ask the target questions that a competing attorney cannot ask. This is an underhanded, devious and unauthorized way for a lawyer or prosecutor to "smoke out," or to discover evidence not available through legitimate means.
The leak puts the celebrity in the position of either exercising his right to remain silent and looking like he is stonewalling; or answering outside of court and compromising his legal position.
When the testimony provided by Clinton's secretary was leaked, it allowed the media to question the president about it. The American public could see the president squirm by not answering until trial. The strategy on his part was critical to prevent prosecutors from reading his answers in the newspapers without having to question him themselves and without having to divulge the testimony of their own witnesses.
Conyers asked Reno to examine whether Starr's office leaked grand jury evidence, intimidated witnesses, conducted unauthorized investigations or undermined the ability of the Secret Service to protect the president.
Some recent comments in the media appear to indicate that Starr is highly partisan, could have had conflicts of interest, and may have exceeded his responsibility. If the Whitewater prosecutor wired accuser Linda Tripp before his request was granted to expand his investigation of the Paula Jones case in violation of Maryland's strict criminal eavesdropping laws why should a rogue prosecutor not be prosecuted as any ordinary citizen might be?
Prosecutors are lawyers and can be disciplined if found to have committed misconduct by abusing their powers. Starr's presumed philosophy, that no person (including a sitting president) should be above the law, should apply equally to the actions of a federal prosecutor. Reno should ask that the proper attorney disciplinary body review the grand jury leaks and other allegations of impropriety.
The clout of being a prosecutor should not be used as a shield to avoid prosecution or discipline for unauthorized or criminal acts, if they occurred. Our Supreme Court has repeatedly ruled that the end does not justify the means if the means are illegal.
If Monica Lewinsky is eventually charged with perjury or if Clinton is impeached, the trial of either or both could be threatened by tainted tactics if they are proven to be illegal. As every television viewer of crime stories knows, police who commit illegal searches and seizures without valid warrants risk having the defendant set free because of their illegal tactics.
Investigators who beat a "confession" out of even an "obviously guilty" defendant are likely to have these confessions thrown out of court based, not on whether they are or are not true, but on the method by which they were obtained.
This raises the question of why a fair-minded prosecutor with no partisan agenda would risk losing a conviction (as well as his law license) by using improper investigatory methods?
Starr has tried to avoid an outside investigation of leaks by announcing that he will conduct his own. However, if he is not guilty as we should all presume, he should publicly welcome an independent investigation by people not involved in the controversy and state his willingness to cooperate.
Christopher Cohen is a former Chicago alderman. He took a leave of absence from his Chicago law practice in 1992 to work on the Clinton/Gore campaign.
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