An article in yesterday's editions of The Sun about grand jury secrecy wrongly attributed to Georgetown University law professor David D. Cole a quotation about why secrecy had to give way in the case of President Clinton's videotaped grand jury testimony. The quotation came from Columbia University law professor Gerard E. Lynch.

The Sun regrets the error.

WASHINGTON -- The public's imminent opportunity to watch President Clinton's videotaped testimony to a criminal grand jury can be attributed to unusual and sometimes clandestine maneuvering by independent counsel Kenneth W. Starr.

Actual release of the tape, of course, is being directed by House Republican leaders. They, unlike Starr, had no legal obligation to keep it secret. But, in fact, Starr arranged for creation of the tape and put the House in a position to make it public in a way that cannot now be stopped.

Starr did so, apparently, without the president and his lawyers knowing exactly what was afoot.

Yesterday, Clinton attorney David E. Kendall charged that Starr plotted to have the tape created and preserved in order that it could be made public: "The only purpose of preserving this videotape after absent grand jurors viewed it was to ensure its public release and embarrass the president."

Starr disputed Kendall's claim that the tape was saved only to embarrass the president, arguing that he could not legally and ethically destroy the tape once it was made because it was evidence, Reuters reported.

Starr's report to Congress, along with the evidence that included the tape, put everything under congressional authority, transferring control of the tape from Starr and the judge overseeing his grand jury. That had the effect of lifting the veil of grand jury secrecy that had shielded it from public view before, according to legal analysts.

Ordinarily, a federal court rule, "Rule 6(e)," requires prosecutors to keep confidential the testimony given before grand juries, as well as the steps in the investigation that led up to that testimony. Clinton's tape, too, was under that umbrella when it was recorded Aug. 17. Congress, though, is not bound by federal court rules.

"Because of the peculiar nature of this, all bets are off as to confidentiality," said David D. Cole, a Georgetown University law professor. "I don't think there's much legally that could be done."

Secrecy had to give way in this case, he said, because "this is different. The independent counsel law requires the independent counsel to provide to Congress information" that may be evidence of impeachable crimes and misdemeanors.

Peculiar setting

The situation with Clinton's testimony is unlikely ever to occur in the setting of a normal grand jury investigation. It was peculiar for these reasons: The secret evidence figures in potential impeachment of a president; the tape involves the president himself; the recording of the tape was done as a substitute for Clinton going personally before a grand jury; the taping would not have been done with an ordinary witness before the grand jury, and Starr was taking unprecedented steps as he moved toward disclosing to Congress what he found.

A witness before a grand jury might have a right to protest any plan by Starr to disclose secret testimony, on the argument that that would be in violation of federal court rules.

Clinton probably had that right, too, and there is some evidence that his lawyers pondered such an objection; but they did not make it. The president said this week that he thought that disclosure of his videotaped testimony would have been against the rules.

Starr, however, has made clear in public statements and letters recently that he believed he not only had the opportunity but the legal obligation to send evidence about possible impeachable offenses to Congress. He has even insisted that he needed no court's permission to do so, although he did ask for and get such permission.

The circumstances surrounding the creation of the videotape, and Starr's maneuvering that has led to its imminent public release, has not been fully disclosed. Clinton attorney Kendall supplied his version yesterday.

Starr and his associates had insisted on having the tape made, Kendall said, even though Clinton was to be appearing on a live video feed to the grand jurors at the courthouse.

Clinton has testified on videotape in other proceedings -- criminal cases brought by Starr in the Whitewater affair. But then the videotape was shown to jurors at a criminal trial. This time, the president's lawyers understood that the live feed would make a tape unnecessary.

The argument Starr made in favor of taping the president's Aug. 17 testimony, however, was that "one or more grand jurors purportedly would not be able to attend on that date," Kendall added. So, the tape supposedly was for them.

At that point, the president's lawyer said he sought to have the testimony put off a day, when the grand jury would be holding a regular session. That, too, was resisted by Starr and his associates, on the ground that some grand jurors might not be present then, either.

Then, the president's side asked for assurances that, once the tape had been shown to other grand jurors, it would be destroyed. Starr refused, according to Kendall's account.

Getting permission

In the meantime, Starr had in his files an order -- sought secretly July 2, and granted July 7 by the federal court that appointed him -- permitting him to release to Congress all of the grand jury evidence he believed might bear on impeachment.

Clinton's attorneys did not know about that order. They have indicated that they did not learn of it until Starr released it publicly on the day he sent his report to Congress, Sept. 9. The Clinton team reportedly has not seen the arguments Starr made to the court when he sought that release order.

Starr's request was what is called an "ex parte" pleading -- that is, one side makes the request, the other side doesn't know about it. That, legal experts say, is usually the way a prosecutor asks for permission to release any grand jury secrets. It is quite common for grand jury evidence to be shared among prosecutors handling related cases, and it is equally common for defense witnesses to get a chance to see grand jury testimony of witnesses who will testify at trial.

Those ordinary circumstances, however, do not involve a report to Congress about a potential impeachment of a president. Some legal analysts have suggested that there are some serious constitutional questions surrounding Starr's use of the grand jury to gather evidence for possible use in impeachment, and those questions would have come up if Starr's request for permission to disclose grand jury evidence to Congress had been open to challenge.

Starr completed his disclosure to Congress with the delivery of his report, along with reams of background evidence -- and the Clinton videotape. The Sept. 9 delivery, too, was a surprise gesture. The day before, in fact, he had written to Kendall, refusing to acknowledge that he was about to file a report on Capitol Hill.

House Judiciary Committee aides had asked Starr shortly before his report arrived when it would be sent, and apparently got no firm answer. Only a brief advance notice to House officials

preceded the report's arrival at the foot of the Capitol steps.

There was a time, early last summer, when Starr's maneuvering to get the evidence before Congress theoretically might have been challenged, if someone had taken him to court over the issue before the special court gave him permission to send a report.

In fact, a lawyer for 12 Secret Service agents who testified -- and who did not want their identities made public -- did go to court explicitly to stop that disclosure. But that came after the secret release order had been handed to Starr by the court.

Although he had that in his files, Starr told the agents' lawyer that their challenge to any disclosure of grand jury evidence was premature. Their concerns that secrets would be improperly disclosed, Starr told the judge overseeing the challenge, were "abstract and hypothetical."

With that challenge pending in court, Starr's report to Congress included, near the front, a list of the names of all the Secret Service agents who had been summoned before the grand jury.

Pub Date: 9/18/98