Clintons' lawyer scolds Starr Published remarks allegedly broke rules on grand jury secrecy


WASHINGTON -- The usually reticent private lawyer of President Clinton and Hillary Rodham Clinton in the Whitewater case denounced the independent counsel yesterday for what the lawyer called "leak-and-smear" remarks to the public.

"It is truly baffling," wrote the Clintons' lawyer, David E. Kendall, "how you can fail to appreciate the fundamental need to keep your profile low, your public comments discreet, and every appearance nonpartisan."

White House officials said the letter had been sanctioned by the Clintons, who agreed with its sentiments about the Whitewater independent counsel, Kenneth W. Starr. Their anger was sparked by an article in the New York Times Magazine on Sunday that was prepared with the cooperation of Starr and prosecutors in his office. The article was a fairly sympathetic portrait of Starr and the challenges facing him as he tries to wrap up the 4-year-old Whitewater investigation.

"A public relations campaign, whether open, as in Sunday's magazine article, or more indirect, as in the making of public speeches in controversial forums using code words, subverts the very institution you and your office embody," Kendall wrote.

Starr, in a toughly worded response, defended his actions. He "adamantly" rejected Kendall's claims that he had acted improperly and said he had adopted a lower public profile than previous special prosecutors.

Kendall, who tends to choose his words carefully and to avoid carrying out his advocacy in the media, vented his displeasure in a single-spaced 5 1/2 -page letter to Starr. He accused Starr of: Flouting the rules of behavior for prosecutors.

Violating the spirit, if not the letter, of federal laws that make grand jury proceedings secret.

Improperly impugning the credibility of Susan McDougal, a Whitewater witness.

Taking liberties with the reputation of Mrs. Clinton over the issue of her long-misplaced billing records pertaining to the Whitewater case.

Unfairly blaming the Clintons for dragging the case out.

"You well know that you have no evidence whatsoever that Mrs. Clinton had anything to do with any 'disappearance' of the Madison Guaranty billing records, yet you've chosen to comment publicly on her 'truthfulness,' " Kendall wrote to Starr.

"The present public posturing on your part suggests to me a total loss of perspective," Kendall added. "I don't believe that there's ever been a jugular here for you to go for, but in the last several months, you've demonstrated an unerring instinct for the capillary."

In his two-page response to Kendall, Starr insisted that he had not violated grand jury secrecy rules. "The examples you cite are referred to in public court proceedings," he wrote.

Starr defended his public statements on the case. He referred to a 1975 report by the Watergate prosecutor's office to support his claim that it is "proper for a prosecutor" to keep the public as fully informed as possible about the work of his office. Starr also noted that Watergate special prosecutor Leon Jaworski had appeared on at least three major network-TV news programs, as RTC had Lawrence E. Walsh, the Iran-contra special prosecutor.

"Despite these precedents and numerous entreaties to appear on similar programs," Starr said he "has frowned on such appearances." Instead, he said he "preferred" speeches at law schools and other "neutral" sites, which he said he would continue to deliver "in appropriate and limited circumstances."

At the same time, Starr accused Kendall of misrepresenting the negotiations between his office and the president's attorney over Starr's demand for notes taken by White House lawyers when they discussed the Whitewater investigation with Mrs. Clinton.

Starr called Kendall's written comments on those negotiations "completely inaccurate, as you know." He said neither Kendall nor the White House offered to produce the notes until after they had lost a court battle to prevent their release.

At first glance, Kendall's letter appears to be more of the same in the war of attrition between the president and his critics. For five years, Clinton aides and lawyers have responded to criticism with attacks against the accusers.

Last year, the White House assembled a dossier on Starr that detailed his links to conservative groups, criticized his roster of clients and questioned the propriety of his public remarks on Whitewater. In September, Clinton was asked in a PBS interview whether Starr was "out to get" him. He replied: "Isn't it obvious?"

After the 1996 election, the Clinton side turned up the heat as James Carville, a political adviser, questioned Starr's integrity and called for his removal.

Joseph diGenova, a Republican and a former special prosecutor, sided with Kendall.

"I think there is a very serious question" about whether grand jury material was disclosed in the article, DiGenova said. "I think it is very unwise to be discussing this case in that way in a published article."

Walsh, the Iran-contra special counsel, also suggested that the references in the article to evidence "might be violative" of grand jury secrecy rules.

"If it's an indirect description of what actually transpired in the grand jury, it would raise questions under grand jury secrecy rules in any circuit in the country," Walsh said.

Pub Date: 6/04/97

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