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Transcript: David Kendall
November 19, 1998
SPEAKERS: U.S. REPRESENTATIVE HENRY J. HYDE (R-IL), CHAIRMAN; INDEPENDENT COUNSEL KEN STARR; DAVID KENDALL, ATTORNEY FOR PRESIDENT CLINTON
HYDE: The committee will come to order.
The chair now recognizes the president's counsel, Mr. Kendall, to examine the witness for 30 minutes, should he choose to do so.
KENDALL: Mr. Chairman, Mr. Conyers, members of the committee, my name is David Kendall. I'm the personal attorney for President Clinton. My task is to respond to the two hours of uninterrupted testimony from the independent counsel, as well as to his four-year, $45 million investigation, which has included at least 28 attorneys, 78 FBI agents and an undisclosed number of private investigators, an investigation which has generated -- by a computer count -- 114,532 news stories in print, and 2,513 minutes of network television time, not to mention 24-hour scandal coverage on cable, a 445 page referral, 50,000 pages of documents from secret grand jury testimony, four hours of videotaped testimony, 22 hours of audiotape -- some which was gathered in violation of state law -- and the testimony of scores of witnesses not one of whom has been cross-examined.
And I have 30 minutes to do this. It's a daunting exercise, but let me begin with the simple but powerful truth that nothing in this overkill of investigation amounts to a justification for the impeachment of the president of the United States.
Mr. Starr, good evening.
STARR: Good evening. How are you, David?
KENDALL: I'm very well, Ken.
You have the book of exhibits before you, do you not?
STARR: I do.
KENDALL: Would you turn to tab 5, which is a press release which your office issued under your name on February 5, 1998. Do you see that?
STARR: I do.
KENDALL: I want to direct your attention to your statement and statement and you are addressing the fact that you have not been able to talk to Miss Lewinsky yet. And you say in your press release, "We cannot responsibly determine if she is telling the truth without speaking directly to her. We found that there is no substitute for looking a witness in the eye, asking detailed questions, matching the answers against verifiable facts and, if appropriate, giving a polygraph test."
Did you issue that press release saying that, Mr. Starr?
STARR: Yes, I did.
KENDALL: And questions have been addressed to you today about the credibility of various witnesses, including Miss Lewinsky. It's true, is it not, that you were not present when Miss Lewinsky testified before the grand jury?
STARR: That is true.
KENDALL: And you were not present at her deposition?
STARR: At her deposition?
Were you aware that she was deposed...
STARR: Oh, I'm sorry. At our deposition. Yes, I'm sorry. I misunderstood. Yes, I was not present.
KENDALL: You were not present on any occasion when she was interviewed by FBI agents, were you?
STARR: That is correct I was not.
KENDALL: And you've never really exchanged words with Ms. Lewinsky, have you?
STARR: That's correct. She -- the answer is yes. I have not had occasion to meet her otherwise to look her in the eye myself.
KENDALL: The same is true for her mother, Marcia Lewis, is it not?
STARR: Yes, that is true as well. That is true.
KENDALL: The same is true for Betty Currie?
KENDALL: The same is true for Vernon Jordan?
STARR: Well, oh, in connection, I happen to know Mr. Jordan but, yes, in connection...
KENDALL: (OFF-MIKE) this case though, were you present during his grand jury testimony?
STARR: No, I was not.
KENDALL: And were you present at any interview of him?
STARR: No, I was not.
KENDALL: Would the same be true for Mr. Podesta?
STARR: The answer is the same with respect to Mr. Podesta, yes.
KENDALL: And indeed, Mr. Starr, there are 115 individual grand jury transcripts, which your office submitted to the House and, with the exception of the deposition of the president of the United States, you were present at none of those grand jury proceedings, were you?
STARR: That is correct.
KENDALL: Likewise, there were 19 depositions submitted and you were -- at least the reporter doesn't show you being present on any of those. Is that correct?
STARR: I think that's right. There were -- and I need to reflect on some of the Secret Service matters, but I think you're correct. I was not actually present for any depositions themselves, including the Secret Service officers.
KENDALL: And there were 134 FBI form 302 interviews submitted. You're not shown to be present at any of those. Is that correct?
STARR: That's correct. I would ordinarily not be present for interview of a witness.
KENDALL: Mr. Starr, I bring this out not to cast aspersions or question your use of time, but you are here as -- and I believe you have already said this -- you are not a fact witness. Is that correct?
STARR: Yes, in terms -- well, I can testify to a number of facts in the investigation...
KENDALL: This is your own autobiography. I'm mean, I'm talking about the facts of this investigation.
STARR: No. Can I answer the question? I believe there are a number of facts that I can, in fact, testify to, but with respect specifically that irrelevant to this investigation and most particularly with respect to the abuse of power issues, but with respect to other questions the president's perjury and obstruction of justice and the like -- to the extent that one is talking about fact witnesses, you're quite right.
The function of the independent counsel himself or herself is ordinarily, ordinarily, depending on the size of the investigation, not one to accompany FBI agents. One relies upon the professionalism and the expertise of one's colleagues and the FBI, who work ultimately under the aegis of Judge Freeh.
KENDALL: There were -- unlike the 1974 grand jury referral to the House Judiciary Committee, this referral was not submitted to the chief judge of the District Court, was it?
STARR: The answer to that -- and I may want to reserve part of my answer for executive session -- let me say that we did not seek the approval of the chief judge with respect to the contents of the report.
KENDALL: Was she every shown a copy of the referral?
STARR: I would prefer to go into executive session with respect to communications I may have had with the district court.
The grand jury did not vote to approve or forward this referral, is that correct?
STARR: That is correct because, as I have said, the decision with respect to the referral is the product of career prosecutors who came together from around the country. And I tried to make sure that the committee understood that the individuals who were involved in assisting me and in guiding me are career, Department of Justice, U.S. Attorney's Office prosecutors from around the country, but ultimately, this is, David, my judgment.
KENDALL: You are here really as an advocate for this referral, are you not?
STARR: I view myself -- no, I think that's not right. I do believe in the referral. I tried to answer questions with respect to the referral, although many questions did not relate to the referral but related to other matters. But I do believe in it. But the reason that I should not be advocating it is because it is this committee's judgment that they will come to by virtue of submission of this in writing with the supporting materials.
And then it's up to the committee to determine -- do they want to call additionally witnesses and the like. Our task was to put before them the information that we found, met the statutory standard of substantial and credible information.
KENDALL: In your testimony today, you indicated you had exonerated the president with regard to the travel office, if I heard you correctly. Is that correct?
STARR: Yes, what I indicated was we had no information that related to his involvement, although I also made it clear that that investigation is continuing, and we hope to announce decisions or actions very soon.
KENDALL: The travel office firings which you are investigating occurred in 1993, is that correct?
STARR: Yes, the firings were in 1993.
KENDALL: Also, if I heard you correctly this morning, you indicated you had exonerated the president with respect to the FBI files matter which had arisen in 1996. Is that correct? STARR: Yes, that jurisdiction did come to us in 1996 from the attorney general. And yes, we have found, as I indicated, no evidence of any wrongdoing by anyone who is relevant to -- I believe at least, in my assessment, I can't speak for the committee -- that would be relevant to the committee's assessment of our referral.
KENDALL: Mr. Starr, when did you come to those conclusions?
STARR: With respect to the travel office, I would frankly have to search my recollection to see exactly where we were and when we were there. As I indicated with respect to the travel office, we have, in fact, had to put part of the travel office investigation -- and I'm now talking about the travel office -- I'll to come to the FBI files -- we had, in fact, had to put part of the travel office investigation on hold, as it were, because of issuing over privileged litigation, which we did not prevail in the Supreme Court. And there are other matters that we are presently examining, and which I can't talk about -- talk about here.
KENDALL: But were the two exonerations you announced today -- did you come to those conclusions before or after November 1, 1998?
STARR: Before November 1 of this year?
Well, I would say that we have not had information that would guide us to the view that we should be concerned about the president in respect of those two matters, and that's why, of course, there's no mention of either of those matters in the referral.
But both matters were, in fact, continuing and no final prosecutorial decisions had been made with respect to either the travel office matter or now to address the FBI files matter.
With respect to that there is, as I have indicated, an unresolved question with respect to one individual.
I've not named that individual, but I do not have -- it remains unresolved. So it's predictive judgment, Mr. Kendall, that nothing we're likely to achieve in either of those investigations will be relevant to this committee's inquiry. And that's what I view my duty as being.
KENDALL: And today was the first time you have announced that in respect to these two matters, is it not, Mr. Starr?
STARR: Yes, it's the first time that we have viewed it as appropriate to speak to issues that are still, David, under investigation.
We are still investigating both matters, and I hope I've made that point clear. Both investigations have very live, active elements to them, and we will make those decisions promptly.
But I felt it was my duty to inform this committee of the state of the record with respect to the president of the United States because the committee has been asking me -- Do you have any other information that is relevant.
I've received a lot of correspondence and -- Mr. Conyers...
KENDALL: Mr. Starr, I have only 30 minutes. If I could, I think you adequately answered my question.
Let me return to a question asked by Congressman Wexler this afternoon about a witness called Julie Hiatt Steele.
Have your investigators investigated the adoption of her 8-year- old child she adopted from a Romanian orphanage?
STARR: Mr. Kendall, my investigators work very hard and diligently to find relevant evidence. I believe that the questions, and I have conducted no specific investigation, and you just spent a good deal of time establishing that I don't go with my FBI agents on every single interview.
Indeed, I don't go -- may I finish, you asked the question?
I don't go with them on interviews. They have a fair amount of discretion as professionals as to what is appropriate to inquire into.
But let me simply say this. There is an enormous amount of misinformation and false information that is being bantered about with respect to that particular witness and the circumstances of questioning.
Amd I will look forward at the appropriate time to be able to demonstrate that to any fair-minded person beyond any reasonable doubt.
KENDALL: Mr. Starr, I'm asking the question for the fact. I am not casting aspersions against.
STARR: But Mr. Kendall, you just said you were not present for the following persons -- Ms. Lewinsky, Marsha Lewis, and Vernon Jordan, and you are now asking me did FBI interviews -- and you talked about how many witnesses there were. Now you are asking me specifically was a specific question asked of a particular witness.
I will be happy to find that out if it seems to be relevant to this committee.
KENDALL: Mr. Starr, I don't think it's unfair to try to find out the fact because there has been considerable publicity about Miss Steele's claim that that is, in fact, what your investigators have been doing. I was simply asking to clarify the record.
STARR: Well, in respect to some of her claims, some of her claims, and I am going to say this, even though there is an active part of our investigation under way, utterly without merit and utterly without foundation, utterly without factual foundation.
KENDALL: Is this one of those claims?
STARR: No, I did not say that Mr. Kendall. I am aware... (LAUGHTER)
I am aware of certain -- that the specific question that you asked goes to whether one or a series of questions were asked of one witness, and my point is I thought that what we were hear today to discuss is a referral, which we believe contains substantial and credible information of potential impeachable offenses by the president of the United States.
What a particular witness's demeanor was or what a particular FBI agent asked is, to my mind, quite far removed from the sober and serious purposes that I thought brought us here together.
And the final thing I would say in this respect -- if there is an issue with respect to the way a witness is treated -- that's why courts sit. I was privileged to serve as a judge -- that's why judges work.
Mr. Kendall, if there is an issue with respect to the treatment of the witness, let's take it to court and have the court resolve it in an orderly way just as the Supreme Court of the United States said that this particular individual is entitled to an orderly disposition of her claims.
KENDALL: In your testimony this morning, Mr. Starr, you said -- We go to court and not on the talk-show circuit. We're officers of the court who live in the world of law. We have presented our cases in court. That's at page 36 -- of your testimony.
Now, Mr. Charles Bakaly, your press spokesman and public relations adviser has been on, by my count, 10 talk-shows and is on NIGHTLINE tonight. I would be happy to read them to you. This is from late April, but does that sound about right, that he has been on 11 talk-shows?
STARR: That probably sounds about right, but I would have to do the count. But let me say that no lesser authority than Archibald Cox talked about, very eloquently and movingly, the public information function of the prosecutor's office.
Not only do we have the right, we have the duty to engage in a proper public information function because this is the public's business. We must do so in order at times to combat misinformation that is being spread about including, frequently, by lawyers who claim that their clients have been grossly mistreated, which is what criminal defense lawyers are paid to do.
KENDALL: Mr. Starr, I take it there would be no disagreement that you, as a United States prosecutor, are under a legal objection to protect the secrecy of the grand jury process.
STARR: Yes. There is no dispute whatsoever.
KENDALL: No dispute. Indeed, if you turn to tab 17 of the materials, you wrote me a letter on February 6, 1998. And if I could direct your attention to the second paragraph of that letter. I had complained about leaks of grand jury information.
You had replied, "From the beginning, I have made the prohibition of leaks a principal priority of the office. It is a firing offense as well as one that leads to criminal prosecution."
Then you say also that you reminded the staff that leaks are utterly intolerable. Am I reading that correctly?
STARR: Yes, you are reading it correctly.
KENDALL: And has anybody been fired from your office, Mr. Starr, for leaking?
STARR: No, because I don't believe anyone has leaked grand jury information, Mr. Kendall.
KENDALL: On the day this story broke in the press, which was Wednesday, January 21, you issued a press release -- do you recall that press release?
STARR: Could you say that again? On January...
KENDALL: On January the 21th -- the day "The Washington Post" story ran, you issued a press release about your information policy.
STARR: Do you have that here?
KENDALL: Yes, I do. Let me direct your attention to 27.
KENDALL: And also, we have a blowup of this press release on the easel.
Now, it's a very short press release, but I'll give you a moment to read it. Have you read it?
STARR: I have.
In your testimony this morning, you described the litigation that your office has been involved in. At page 36, you said you've faced an extraordinary number of legal disputes on issues of privilege, jurisdiction, substantive criminal law and the like. Do you see that? It's at the top of your testimony.
STARR: Yes, I do, I do see that.
KENDALL: You did not mention leak litigation in that list, I observe.
STARR: Yes, that's correct.
KENDALL: In fact, we have litigated on a number of occasions producing, by my count, at least five District Court opinions, which have all been unsealed and in the binder, and one Court of Appeals decision on this matter, have we not?
STARR: Yes, and in fact, with respect to that -- and we did, Mr. Kendall, and I think you will agree -- that we prevailed in the court of appeals with respect to the issue that you're talking about.
And I want to be careful about what I say because I have found that some lawyers are very quick to suggest that certain comments made by prosecutors may run afoul of confidentiality requirements.
I think I can say this.
The D.C. circuit unanimously concluded that the procedures that you had urged were entirely inappropriate, improper, unauthorized by law, and that there had to be an orderly process that was protective of very vital interests. That was a unanimous opinion by the D.C. circuit overturning a process that you had urged upon the District Court in your effort to find out as much information inside the prosecutor's office as you possibly could.
So that is -- I hadn't even thought of that as one of the 17, but you're absolutely right. That is part of our litigation record. And we are now in the process, as you well know, of additional litigation.
And I think that judgment should be withheld. Judgment should be withheld with respect to this question until such time as there is a judgment -- an ultimate judgment in this case because I am confident that we have abided by our obligation. I'm confident of that.
KENDALL: I take it you would agree with Chief Judge Johnson that enforcing rule 6(e), which enforces grand jury secrecy, is of the utmost integrity to the grand jury process?
STARR: Yes, Chief Judge Johnson has made it abundantly clear -- and I agree with that -- the values of confidentiality of matters occurring before the grand jury is very important.
KENDALL: And she has also ruled, has she not, that due to the serious and repetitive prima facie violations of rule 6(e), a thorough investigation is necessary, and is now being conducted? Just let me direct your attention to -- is it tab 24? -- and that's her opinion which was just unsealed.
STARR: Tab 24?
KENDALL: Tab 24, page 20.
STARR: Yes, this is the October 30, and then the redacted version, and there -- pardon me -- and I think this is -- fundamental fairness requires this body to know that the law of this circuit permitted Mr. Kendall to say -- Here are articles, look at the sourcing.
STARR: We get to ask the prosecutor to come forward and to show that the prosecutor is not the source of this grand jury inform -- or of this information. And that's the process that is underway now. We're at phase two. But the law of this circuit, under the Barry (ph) cases, with which you are intimately familiar, is essentially a hair- trigger. All it takes is a letter from Mr. Kendall saying -- Here is an article with ambiguous sourcing. I believe it may relate to the grand jury matters and a prima facie case, as is said in the law, may be established.
And in this district, I think this is a major issue for the administration of justice. And high-profile cases, Congressman Rostenkowski, Mayor Barry, again and again -- the criminal defense bar of this jurisdiction is rushing into court and saying, there are grand jury leaks...
KENDALL: Mr. Starr, I don't mean to interrupt you, but I've only got 30 minutes.
STARR: Yes, I'm sorry.
KENDALL: In fact, Judge Johnson had before her 24 submissions from us as to what might be leaks from the independent counsel's office. Did she not?
STARR: And we are in the process of litigating those, David, as you know.
KENDALL: And how many did she find there was prima facie reason to believe that your office had committed these leaks?
STARR: And I think you know the answer to that. Under the hair- trigger, Barry-standard where almost anything will satisfy -- and the D.C. Circuit noted that. You cited the D.C. Circuit's opinion. The D.C. Circuit's opinion makes it very clear, as you know, David, that the burden on the moving party is quite limited. That's not a quote, but that's the idea. It's a very limited burden that you have.
KENDALL: I think the answer to my question was all 24. And are you saying that the journalists invented sources like "prosecutors painted a different picture"; "sources in Starr's office tell us"; "sources near Starr"; "prosecutors suggest". Does the media make up those quotes, Mr. Starr?
STARR: I am not here to accuse the media of anything. I am here to say that fairness requires us to be able to litigate this matter, which, as you well know, is under seal, and to litigate that in an orderly way, and then to come to a judgment as to the significance of that.
But I will simply say that the law of the circuit makes it quite easy for you to say -- Look at the sourcing. I get to now put the burden on the prosecutor to come forward and show evidence that the prosecutor is not the source.
KENDALL: Mr. Starr...
STARR: And David, that's what we are doing.
KENDALL: Mr. Starr, in fact, there has been no case remotely similar to this in terms of the massive leaking from the prosecutor's office, and I think we noted that.
STARR: I totally disagree with that. That's an accusation, and it's an unfair accusation. I completely reject it. And I would say, David -- let's wait until the litigation has concluded. You are asking to -- and especially with the rules being what they are on a prima facie case, you're asking -- Let's now come to judgment after about 10 minutes of the first-half. That's not fair.
KENDALL: May I direct your attention now to the exhibit that we have displayed up there? It's 27.
STARR: This is, I'm sorry, number 27?
KENDALL: Yes. It's your press release on the first day of the Lewinsky story breaking.
It's a press release on the letterhead of the independent counsel's office. We secured it from your office through a Freedom of Information Act request. It's under your name. It says -- "Independent Counsel Kenneth W. Starr issued the following statement today from his office in Washington, D.C."
And then it says: "Because of confidentiality requirements, we are unable to comment on any aspect of our work."
Is that what you announced to the world on January the 21st?
STARR: Yes, and I must say, I think that this is inconsistent with the duty of a prosecutor to provide appropriate and lawful public information. I think it is the duty of the prosecutor to combat the dissemination of misinformation as long as the prosecutor can do that without violating his or her obligations under rule 6(e). And that's the position, David, as you know, of the Justice Department.
KENDALL: But did you issue any press release admitting that you were talking about aspects of your investigation?
STARR: I'm sorry. Could you say that again?
KENDALL: After the press release which you now said -- and I have forgotten your exact phrase -- what was it? -- that you would not have issued it now? Does it depend on what you mean by "comment"?
STARR: No, in terms of being able to provide a public information function, it depends upon how broadly one wants to read a particular document. This is not a legal document. It's a statement of policy. And ordinarily, in contrast to what most prosecutors do, we try to treat all individuals -- those, for example, charged with crime -- with complete fairness. We do not go out and hold press conferences and the like.
That is our methodology and our approach. But we follow Justice Department policy. And I frankly think that this comment is an over broad statement because it's incompatible with DOJ policy.
KENDALL: It is your comment, though, Mr. Starr. It's what you wanted the world to think you were doing in the Lewinsky investigation. Is that not a fact? It is your press release.
STARR: Well, except I think it is still -- you're -- you're talking about a press release. You're not talking about a filing in court and the like.
And what we were in fact doing, virtually contemporaneously with this, was issuing -- it may not have been contemporaneously and perhaps you'll guide me to that -- but we were being accused -- and we have heard it all day long today about the events at the Ritz-Carlton.
And I felt duty bound to provide public information that I thought was appropriate about the conditions that Ms. Lewinsky found herself in and that the -- the character assassination by her then- attorneys -- no longer -- or at least one is no longer her attorney...
HYDE: Mr. Kendall, your time is up. You may want to get into the facts. So do you need additional time?
KENDALL: I think -- I would like additional time, Chairman Hyde.
HYDE: How much -- how much time would you like?
KENDALL: I think the analysis -- I believe -- I'm sorry, what did you say?
HYDE: I was going to say is 15 minutes helpful?
KENDALL: I'd like -- that won't be enough, your honor.
HYDE: You're being coached by Ms. Waters here. Now that doesn't count. How much?
KENDALL: Your honor...
HYDE: Another 30 minutes?
KENDALL: Could I have another hour?
GROUP: Oh, no.
(UNKNOWN): Oh, wow.
HYDE: How about -- how about 30, so you can get into the facts?
KENDALL: I thank the chair for 30 minutes. I think, though, that these are the facts, Your Honor.
KENDALL: How this -- how this analysis was done -- the campaign to disseminate information against the president is very much a part of the fairness of the document which your committee is having to consider.
HYDE: Very well.
KENDALL: Is the analysis reliable? Is it fair? Does it present the facts? Have proper procedures been followed?
HYDE: I see. Well, the gentleman is recognized then for an additional 30 minutes.
KENDALL: Thank you.
HYDE: But that should wind it up. So you have 30 more minutes.
KENDALL: Mr. Starr, you were right, you did issue a press conference about Ms. Lewinsky's treatment at the Ritz-Carlton.
That was a press release. It was on the record. Everybody knew you were saying that. You were accountable. To use your phrase, you were transparent. But you also spoke frequently on background to the press. And my question to you is, you and those around you, your subordinates.
STARR: Yes. Be careful when you say the "you," because I do not speak frequently or otherwise to the press.
KENDALL: Did Professor Dash (ph) give you any advice as to what should be on background or what on the record?
STARR: We discussed with Sam a variety of issues. I would have to search my recollection with respect to any specific observations that Sam gave us with respect to this. But let me say this. If you look at -- at -- because your comments to the chairman, whom you called "your honor," and I have been attempted to do that most of the day, because you and I are both accustomed to being in courthouses -- when you look at the information that we had in our office and the FBI, as opposed to information that you had access to, it never, never entered the public domain -- for example, the dress, the DNA, the test results.
Those were never in the public domain, because you did not have a witness in your joint-defense arrangements who you could debrief and tell you because it was the distinguished judge, who is the head of the FBI, and a handful of -- no. This -- you talk about fairness. It's time for some fairness with respect to all of these charges that keep being bantered around without any kind of judicial determination that there is, in fact, wrongdoing under 6(e). There is a...
KENDALL: My question was simpler, Mr. Starr.
KENDALL: My question was, why would you speak on background? Why not be accountable? Why be transparent? I have never protested a press release, which you have issued. Have I?
STARR: No, you have not?
KENDALL: And I think there may well be times as a prosecutor when it's necessary to correct misinformation. You've sometimes done that. It's necessary to get the facts out, so that people aren't misguided. But why speak off-the-record on background? Why not be accountable?
It depends on the circumstances, and I will say this. I believe the Justice Department practice -- it certainly was with the practice when I was there -- I will hazard that it's still the practice of the Justice Department -- that these are judgment calls as to whether the prosecutor wants to make herself or himself part of the story.
A specific example -- if someone comes to us with a specific allegation of wrongdoing on the part of one of our prosecutors, and it may be a criminal defense lawyer, who has said -- The prosecutor did the following bad things. It may be utterly bogus because people do, in fact, lie about what happens to their clients, and I'm sorry to say that.
We do not want to, in any way, be part of a story as to whether -- and obviously, we can't talk about matters occurring before the grand jury -- but we can, in fact, respond to a suggestion that the FBI in some way or a prosecutor in some way conducted herself or himself improperly. But it is quite wise to say...
KENDALL: Then why not say it on the record? Why the secrecy?
STARR: Because -- and you're asking essentially press policy as opposed to constitutional issues that have brought us all here.
And if this is an oversight hearing with respect to the press policy of the independent counsel's office or if that's what the president's lawyer wants to spend his time doing, then that is your prerogative.
So let me tell you, then, what our press policy is.
KENDALL: Well, Mr. Starr, I have only got 30 minutes. I have asked you...
... I think, a simple question. But let me move on. You yourself executed an affidavit in the leaks of the investigation, did you not?
STARR: David, this matter is in litigation. And Mr. Chairman, as a matter of fairness, I have to be careful about what I say because he may tell me that it's not under -- it's just not right to be in litigation under seal before the district court and to be cross- examined by the president's attorney with respect to that matter which seems to have no germaneness whatever (OFF-MIKE).
KENDALL: Mr. Starr, I was going to ask you about an affidavit, a sworn declaration which you yourself executed which is not under seal in -- in the leaks proceeding.
But I will move on if this -- if this -- if this is not something that you want to respond to?
STARR: Well, David, I just think if you're talking about the leaks litigation, that's the point. It is in litigation.
Why don't we allow that litigation to go forward instead of individuals, members of Congress who talk about fairness, jumping to the conclusion that there's been a violation when there has been no adjudication of anything beyond the existence under the law of this circuit of a prima facie case.
That is unfair. It's unfair to my career prosecutors. It's unfair to investigators. It's wrong.
And just to finish the point, when we had highly sensitive information that Mr. Kendall did not have, the DNA on the dress that was held within our office and the FBI, there was no dissemination of that information.
But what happens is Mr. Kendall and others interview witnesses and any criminal defense lawyer, and if you see fit to inquire into the joint defense arrangement in existence here, I would be grateful.
Amd I know you want to move forward with these proceedings, but the joint defense arrangement that has been in effect in this operation is a very significant aspect of the very issues that Mr. Kendall is now raising before this committee. Because one of the issues is the key...
KENDALL: Mr. Starr, excuse me. Could I direct your attention to tab 15? I think you have answered the question. And I would like to move on. I am running against the clock.
STARR: I'm sorry, Mr. Kendall. I have been here since 10, so forgive me.
KENDALL: I know it, and I will move on. Carol Bruce (ph), Miss Carol Bruce (ph) was appointed independent counsel to investigate the Indian gambling casino matter, was she not?
STARR: Yes. The Secretary Babbitt matter, yes.
KENDALL: Are you aware of her press policy?
STARR: No, I am not.
KENDALL: It's -- it's indicated there at tab 15 that she held a press conference when she was appointed and then said she did not anticipate making any further public comments until the investigation is completed.
You mentioned the experience of Miss Lewinsky at the Ritz-Carlton on Friday, January the 16th, 1998.
One of the reasons your agents held Ms. Lewinsky was that they...
STARR: That is -- I -- I have to interrupt. That is -- the -- that premise is false.
KENDALL: I was not meaning to be offensive.
STARR: That is false and you know it to be false.
KENDALL: I'll rephrase the question.
STARR: She was not held.
KENDALL: She -- her own psychological state will speak for itself as to how she felt. It's in the record in her testimony.
STARR: You said she was held. You didn't say how she felt.
You said she was held. And I think that's unfair to our investigators. And this issue has been litigated, David, as you well know, with respect to the constitutional rights of the individual involved.
KENDALL: During her sojourn with your agents.
STARR: Well, the Ritz-Carlton is a very pleasant place to have a sojourn.
KENDALL: One of the purposes was to get Ms. Lewinsky to wear a recording device and surreptitiously record Mr. Jordan or the president. Was it not?
STARR: It was not. And I know that there is testimony and that this was referred to, but let me explain.
She was asked and given the opportunity, which she turned down, to be a cooperating witness. And we explained to her -- we did not invent this. This is all traditional prosecutorial activity and techniques. And we said one of the things that a cooperating witness can do is to assist us in consensual monitoring.
We described that at a high level of generality is my understanding. And I believe my prosecutors, in fact, conducted themselves consistently with what I have just told you.
KENDALL: Could you turn to tab seven and could we have...
STARR: I'm sorry, tab seven?
KENDALL: Yes, tab 7 of the binder. You may have read the Time magazine essay -- excuse me -- I'm sorry, by Messrs. Ginsburg (ph) and Spates (ph) in which they state the following. "The government didn't just want our client to tell her story.
They wanted her wired. They wanted her to record telephone calls with the president of the United States, Vernon Jordan and others at their will.
You're familiar with Mr. Ginsburg's charge?
STARR: Mr. Ginsburg is wrong. And he must know that he is wrong. He was wrong then, and it is a calumny to repeat that now.
Mr. Ginsburg was not known for his consistency of articulating positions.
Nor was -- nor was he known for his consistency in dealing with facts. I would say that he was rather fast and loose with the facts. And if you are going to rely in this proceeding on a Time magazine essay by Bill Ginsburg, then I think the standards are not quite as lofty as I thought they would be this evening.
KENDALL: Mr. Starr, with what is an FBI 302 form?
STARR: An FBI 302 form is a report of interview by FBI agents with a witness.
KENDALL: Now, you categorically denied wanting to have Ms. Lewinsky wear a wire or secretly tape record the president or Mr. Jordan when the charge was made in the Time article, did you not?
You categorically denied that.
STARR: Are you saying at the time of this Time article?
KENDALL: At the time of that Time article, you denied Mr. Ginsburg charge, did you not?
STARR: I believe that we did, but I am just not recalling specifically...
KENDALL: You certainly denied it...
STARR: You have read a number of charges so you'll have to remind me of where my...
KENDALL: Let me direct you to tab 12 in the volume. And this is the later -- your later editor -- your later letter to Steve Brill. We're displaying the page there. And it's -- it's page seven. You don't have to read your entire letter.
KENDALL: Page 7.
KENDALL: Do you see where it's indented six? It's Tab 12, page 7 of the exhibit, your own letter. You say, this is false, this office never asked Ms. Lewinsky to agree to wire herself for a conversation with Mr. Jordan or the president. You cite no source at all, nor could you, as we had no such plans. Have I read correctly your letter?
STARR: Yes, you have.
KENDALL: All right now. When you wrote the letter, did you review. You were not present at the Ritz Carlton were you?
STARR: No, I was not.
KENDALL: Did you review with Mr. Emmick, for example, what had happened there?
STARR: Yes, I have reviewed with a number of -- well, in terms of this particular letter. But if you're asking did I review the events of the Ritz Carlton in connection with this as opposed to what we had already done in terms of the allegations being made at or around the time, I do have very vivid recollections of discussions with respect to the circumstances of the Ritz Carlton.
KENDALL: Do you remember if you reviewed -- I'm sorry.
STARR: I'm just not, you're asking me in connection with this letter, did I have a conversation with one of my colleagues. And I would have to review notes and so forth.
KENDALL: I apologize for my speed, but I don't have much time. I don't usually talk this fast, Mr. Starr. Would you look at Tab 13. Now Tab 13 is the FBI 302 form describing, and that's not Mr. Ginsburg or Mr. Speights is it? That's one of your own agents. We don't know who, because the name is blacked out. But if you look at page 5, of that exhibit, it says at 11:22 p.m., it says AIC Emmick talked to Bernard Lewinsky, that is Ms. Lewinsky's father, cooperation and interview, telephone calls, body wires and testimony were mentioned. You see that?
STARR: Yes I do.
KENDALL: And then do you see down below, below the 11:37 entry, Ms. Lewis has arrived on the scene, Ms. Lewinsky's mother. And she expresses, Ms. Lewinsky has expressed concern about what's being requested of her. She says according to the FBI 302, what if I partially cooperate? That's as recorded by the FBI agent. Marsha Lewis asked, what would happen if Monica Lewinsky gave everything, but did not take anything? Do you see that?
STARR: Yes I do.
KENDALL: It was in the grand jury that the events of Friday, January the 16th, were presented through the testimony of Ms. Lewinsky, was it not? Was that her second appearance?
STARR: Yes, I believe that's right.
KENDALL: And do you remember, and this is if, do you have the appendices to your ...?
STARR: I can get them.
KENDALL: I don't think we'll need to because this a famous passage. The grand jurors -- you're prosecutors had no more questions, and the grand jurors themselves began to inquire about the events that day. One of them said at page 1143, "We want to know about that day, we really want to know about that day."
And this illicited then, from Ms. Lewinsky, who was under oath, a tearful description of what had happened to her. She asked Mr. Emmick to leave the room, did she not?
STARR: That's my recollection of the transcript, yes.
KENDALL: And, in fact, she said that she was told on Friday, January the 16th by your agents that she'd have to place calls or wear a wire to see -- to call Betty, and Mr. Jordan, and possibly the president. "Question: And did you tell them you didn't want to do that? Yes."
Was that Ms. Lewinsky's testimony?
STARR: Yes, that is her testimony.
KENDALL: I think the point was made earlier, but the affidavit that Ms. Lewinsky filed had not been mailed by her attorney on -- until the end of the day Friday, January the 16th, had it?
STARR: I believe that's right in terms of the timing, that -- but I would have to reconstruct that in terms of the actual timing of the mailing. I'm sorry, I would have to double-check that.
KENDALL: Mr. Starr, you've repeatedly said that the attorney general asked you to take on this matter -- the Lewinsky...
STARR: Well, that's your characterization. I have said that we collaborated with the Justice Department, and the attorney general came to her decision. We brought it to her attention. We did say that we thought that the steps we'd taken had been within our jurisdiction, but we were concerned about whether any additional step could be taken properly within our jurisdiction, and that's how the discussions began.
KENDALL: In fact, you requested that the matter be referred to you, did you not?
STARR: At some point during the discussion, we -- in our own deliberations, we came to the view that we felt that, because of the involvement -- and I'll be very specific here -- of Vernon Jordan, that this was related to our existing jurisdiction. The attorney general disagreed with that. But that was our view.
Here was Linda Tripp, who was a witness in the Travel Office matter, and the Vincent Foster documents matter, and the Vincent Foster death matter, and she had come to us with information. And so we felt very comfortable -- and she said, "I'm being asked to commit crimes. I'm being asked to commit perjury." We felt comfortable that we were within our jurisdiction at that juncture, but we did feel there was a jurisdictional issue from that point forward which we worked on collaboratively with the Justice Department.
But we did, in fact, send a letter indicating that we felt that this was related to our jurisdiction, but I hasten to note that the attorney general disagreed with that and said, "No, it's not related to your existing jurisdiction, but we think your office should investigate it. We can't because the president is implicated."
KENDALL: In her transmission to the special division, the attorney general stated, "Independent counsel Starr has requested that this matter be referred to him." Is that not the case?
STARR: Well, you'll have to refer me. Where...
KENDALL: I'm sorry, I don't have that in your binder.
STARR: OK. Yes, well...
KENDALL: I will represent to you that is a sentence in her...
STARR: I am certainly going to accede to your representation. And it certainly is true, as I just indicated, that we did, in fact, send a written submission indicating that we felt that this was related to our jurisdiction. The attorney general felt we should have jurisdiction, but disagreed that under the statute it should be an expansion of our existing jurisdiction.
KENDALL: Mr. Starr, when did you first learn -- you yourself -- that there might be an audiotape with a conversation involving the president and a young woman?
STARR: The young woman -- Monica?
KENDALL: A young woman.
STARR: I'm sorry?
KENDALL: A young woman.
STARR: Oh, I think we've had questions about that, and I have been asked that, and I'm searching my recollection, but let me say this: if you're talking about Monica Lewinsky -- and I don't know that you are; you didn't use her name -- but the first I knew, to the best of my knowledge and recollection, of Monica Lewinsky was in January of 1998.
Now I had questions, and they seem to me to suggest that there is some information with respect to, information that may have come to me in November of 1997, with respect to tapes. And it was all very vague and shrouded in mystery. And I said, I will be happy to respond if I get some additional information.
With respect to Monica Lewinsky, which I assume is what we're here to talk about, I did not know anything about Monica Lewinsky to the best of my recollection. I don't think I ever had occasion to meet her otherwise hear about her until January of 1998.
KENDALL: Were you aware of how Ms. Tripp came to communicate with your office in January of 1998?
STARR: I was told, I'll be very specific, and I can be very brief. I was at an American Bar Association Journal board of editors meeting when the initial contact was made with one of the associate independent counsels. I do not believe in that -- and that was on January 8th, and I do not believe in that contact -- Linda Tripp's name was mentioned. That information was brought back to Washington. The information was conveyed to a deputy independent counsel who said, information comes in the front door. And I'm not sure at that time that we knew who this person was.
We were then called on January 12th by Linda Tripp, that was a telephone call, and I was made aware of the telephone call promptly thereafter. And that's when it was brought to my attention that there was information that we would proceed to act on.
KENDALL: Were you aware that your partner, Richard Porter had played a role in steering Ms. Tripp to your office?
STARR: I know Richard. I am not aware of what his role was. I have sense read about what his role was. But I did not in any way have any involvement whatsoever, or participation in any way with whatever he did. And I've not conducted an investigation. There may be facts of which I am unaware that I should be aware in terms of before I formulated a complete response.
KENDALL: Could you turn to Tab 2, Mr. Starr. It's a provision of the Independent Counsel statute. It's 28 USC 594(j). Do you see that?
STARR: Yes, I do.
KENDALL: In that, you've made the point that you kept your law practice as you were legally entitled to do. You made, I think over a million dollars each year, for the last four from that law practice, again as you were legally entitled to do. But in exchange for allowing private counsel to serve part timers independent counsel, the Ethics in Government Act enforced a very strict conflict of interest rule, did it not? And that's...
STARR: Yes, it's very specific. Yes.
KENDALL: And that says that any independent counsel cannot have any person associated with a firm, not just a partner, represent in any matter, any person involved in any investigation or prosecution under this chapter. Is that correct?
STARR: I believe that's right, I would have to re-read it, but I'm going to simply accept your representation. But I think that is correct.
KENDALL: Can I call your attention to Exhibit 4, which is another 302 interview form and that's for Ms. Lucianne Goldberg. To Tab 4.
STARR: Yes, I do have it.
KENDALL: At page 1232 of the exhibit, do you see that one of your agents describing why Linda Tripp is nervous and where...
STARR: I'm sorry, I have not read this 302...
KENDALL: Well, it's 1232.
STARR: Yes, I'm there, but what paragraph.
KENDALL: All right, it's the paragraph that begins in the meantime because Tripp.
STARR: It's not on my page 1232.
KENDALL: I beg your pardon, it's 1231.
STARR: OK, I'm sorry.
KENDALL: All right. "Goldberg called around to friends she has, including one in Chicago who works at the same firm Ken Starr does. This person recommended Goldberg to call Jackie Bennett at the OIC. Goldberg advised that the OIC knew who this person is, and that this person is very nervous at this time."
Did you ever have any reports from any source that some person at your law firm had expressed nervousness about this contact with Linda Tripp?
STARR: You're talking about at any time?
KENDALL: Any time.
STARR: Well, you've just brought this to my attention. But I am -- I do not -- no, I don't have a recollection of something being brought -- you're talking to my attention? No.
KENDALL: Did you cause any check to be made at any time, before you sought jurisdiction in the Lewinsky matter, as to whether any person in your law firm had any kind of an association with the Paula Jones' case?
STARR: No, I did not. But I must say that what you pointed me to in the statute was representation, and I've read the 302 quickly for the first time. I've not had occasion to read this 302. And the 302 does not talk about representation; it talks about calling a friend.
KENDALL: It's possible, is it not, Mr. Starr, for the provision of legal advice of some kind to involve a representation, at least for conflict of interest purposes, even if there is no written retainer, there's no formal hiring of a person?
STARR: Well, I think -- I'm not sure I would readily agree with that, and let me just say this: conflict of interest analysis is -- as you well know, because you're a partner in a very prestigious law firm -- is very technical, and very complicated, and very careful evaluation has to be made. And that's why, I'm sure at your firm as we do at our firm -- the firm from which I'm on leave of absence -- we have a partner who is dedicated to the issue -- to the analysis of these very issues.
So these are things that you assess all the facts -- what is a conflict? As you know, the issue of conflict is one that is, at times, a very -- very much a judgment call, that reasonable persons have to have an enormous amount of information in order to come to that judgment.
KENDALL: Mr. Starr, could I direct your attention to exhibit Tab 14, please. Do you have that exhibit?
STARR: Yes I do.
KENDALL: That is a "Washington Post" article from June of 1997 indicating that your investigators are now probing rumors about the president. Is it not?
STARR: It is an article about that subject, yes.
KENDALL: And indicating that state troopers, two were named and quoted, Ronnie Anderson (ph) and Roger Perry, are being interviewed about rumors of affairs that the president had while he was governor of Arkansas. Is that correct?
STARR: That's what the story is about.
KENDALL: Your ...
STARR: But whether the story reflects the facts is obviously a different matter.
KENDALL: Did you cause any investigation to be done as to whether in fact, your investigators were asking witnesses about a list of 12 to 15 women by name, including Paula Corbin Jones?
STARR: When this, and we were in Little Rock at the time, namely all of the attorneys were in Little Rock as we were assessing a very important issue. And when we were in the midst of our discussions, we were receiving urgent inquiries from "The Washington Post" asking about interviews. And your quite right in pointing out that this was, a "Washington Post" piece from June of 1997. They were talking about interviews that had been conducted in February, so it was old news. And we did then inquire, in light of this, we did make inquiries internally of the FBI because these are professional agents, and we said, what kinds of questions are being asked? What is the purpose? And the purpose of the investigation was, as we were moving forward in the Little Rock phase of our investigation, we wanted to make sure, as investigators should do and as prosecutors should do, that we had reached out an interviewed anyone who might have relevant information. And that's what we were doing. We were in fact, talking...
KENDALL: And the relevance of this -- did you go to the attorney general and seek an expansion of your jurisdiction to accompany this particular investigation?
STARR: I guess I wasn't clear. This was the Whitewater phase of our investigation that is referenced here in the press. We're talking about Little Rock, we're not talking about activity in Washington. And we were in fact interviewing as good prosecutors, good investigators do, individuals who would have information that may be relevant to our inquiry about the president's involvement in Whitewater, in Madison Guaranty Savings and Loan and the like. And specifically, a loan from Madison Guaranty that we had information on, in which we were not able to secure as much information as we would like given the records of the bank, and given Susan McDougal's lack of cooperation.
STARR: As you well know, Susan McDougal was not cooperating with the investigation, and indeed as we know, you spent time with Susan Mcdougall during the course of the trial representing the president's interest to communicate with her as you're entitled to do. We're also entitled, just as you're entitled to reach out to your fellow criminal defense lawyers, we're entitled to reach out to witnesses who may have relevant information.
KENDALL: Did you use private investigators to do this investigation into the 12 to 15 women?
STARR: I beg your pardon, private investigators?
KENDALL: Yes, your GAO report over last three times...
STARR: Oh, I'm sorry.
KENDALL: ... has a line item of approximately, it varies, but it's about half a million dollars for among other things, private investigators.
STARR: No, we have never hired Terry Lenzner, David.
KENDALL: What is that private investigative expense?
STARR: But what we do, do is we do hire retired FBI agents. And those are, you know, I'll have to look at the, you're talking about an audit report. And if you want to guide me to the audit report, that's fine. But I will say...
HYDE: The chair's got to intervene, the hour is over quite in a little bit. Mr. Lowell and Mr. Kendall have had two hours. Mr. Schippers has been waiting since 10:00 and is getting testy, which is his natural state.
But, Mr. Kendall, you will have an opportunity, further opportunity to present and address the committee at length in extent though, as you lawyers say, and offer whatever evidence exculpatory or otherwise you want.
You will have a full opportunity before we go to any markup, if we go to a markup. So, really, it's a long day. One must have some compassion for Mr. Starr and...
STARR: Thank you, Mr. Chairman.
KENDALL: Mr. Chairman, I thank you, but I would simply request Mr. Starr testified for 2 and a quarter hours. I am simply trying to get my fair crack at him. I would like to go into omissions from the referral and other areas...
(UNKNOWN MEMBER): Mr. Chairman?
KENDALL: It's been a long day. I would come back tomorrow if that were appropriate.
HYDE: I don't think many of us want to come back tomorrow. So -- But, you will have an opportunity to address the committee fully and produce whatever you want by way of evidence, witnesses, exculpatory material.
We will not foreclose you, but the night is waning, and we would like to get to Mr. Schippers. So with your kind indulgence and I see you are putting your glasses away, which is a healthy sign.
KENDALL: Thank you, Mr. Chairman.
Thursday, November 19, 1998
Starr says Clinton 'chose deception'
White House lashes out at Starr's testimony
Quick takes from the Impeachment hearing
McDougal jury recesses until Friday morning
Utah congressman's erratic behavior troubles staff members, GOP
As Congress focuses on Lewinsky, GOP governors focus on schools
Bono's widow says prescription drugs contributed to his death
Hearing brings those seeking history, drama and famous people
Officials back rotating regional primaries for president
For now, Clinton won't recommend a Social Security solution
David Schippers' questioning of Ken Starr
David Kendall's questioning of Ken Starr
Judiciary Committee impeachment hearing 23 pages
Chairman Hyde's opening statement
Rep. Conyers' opening statement