J'DISCLOSE
Tell, David
J'disclose! by David Tell STEVEN BRILL IS A STICKLER FOR ETIQUETTE, and he doesn't mind telling you so. Here's a story he told last week on Meet the Press. On June 11, he gave the Office of...
...In "Pressgate," Brill dismisses the view of Rule 6(e) he attributes to Starr as "absurd...
...And then there is the Second Corollary to the Rule of Brill: Brill must be afforded the chance to pre-spin other journalists who plan to scrutinize his writing, and that spin must be reported in any resulting, published critique...
...It is the Rule of Brill: If you're about to charge, in a much-hyped, 24,000-word, nationally distributed broadside, that some well-known person is guilty of a "felony," you really must give the accused a split second's advance warning...
...Specifically, did we reveal that his magazine, Brill's Content, was at work on a piece "concerning outside speaking fees for people like you [Barnes...
...Brill additionally disclosed, by way of explanation, that no such contributions had been made since he began "writing about politics...
...I have a reputation for being good at reading the law and at doing that kind of legal research," he has lately bragged...
...A writer's words are supposed to speak for themselves, on the page, not on the phone...
...Never mind...
...Thus, Kenneth Starr is a crook...
...Here's a Tenth Circuit ruling: "Revelation of information that has not been submitted to the grand jury does not vitiate [Rule 6(e)] protections for the simple reason that the information was not part of what transpired in the grand jury room...
...Also to a few hundred thousand other people across the continent...
...I am happy to clarify the record now...
...The question remains: Is it illegal...
...Here's one from the Fifth Circuit: "Disclosure of information obtained from a source independent of the grand jury proceeding, such as a prior government investigation, does not violate Rule 6(e...
...Pressgate" contains only one, abstract quote from Starr about the law governing the confidentiality of grand-jury material and deliberations, Federal Rule of Criminal Procedure 6(e...
...As are, no doubt, all the other reporters and editors who now claim Brill has mangled their words...
...Assume, just for the sake of argument, that Brill is right about all this...
...No, it's not good law," he responded...
...One, Steven Brill remains a self-important, reckless, and unreliable man...
...I disclose that I would have written my brief against Brill even if Fred Barnes had never given a speech in his entire life...
...Which disclosure was false, given that one of the contributions at issue was logged in March of this year (Brill has acknowledged starting work on "Pressgate" in February...
...Actually, Tim Russert, host of Meet the Press, doesn't think Brill quoted him properly at all...
...Yeah, well, guess what...
...Otherwise, apparently, the critique is illegitimate...
...And why had no one from the Standard ever called Brill for comment about himself...
...Is it true, in short, that "every court that's ever had to take a look" has unambiguously agreed with Steven Brill...
...Anything less would be ungentlemanly...
...He is a big one for disclosure...
...Four days after "Pressgate" was released (producing a weekend of unmitigated PR hell for the independent counsel), Starr issued a meticulous, 19-page response to Brill...
...We are going to fax you something" tomorrow morning, he notified Starr's office by telephone...
...He has, for that matter, only ever cited a single opinion of that single court: In re: Motions of Dow Jones & Company, Inc...
...Hell, "there really isn't any other lawyer on the planet who interprets the law the way he does...
...Did we admit our, you know, motivation for that exercise in debunkery...
...As it happens, the D.C...
...It turns out there are precedents in at least half the nation's other appellate jurisdictions that fully put the lie to Brill's vaunted powers of legal research...
...Rule 6(e), Dow Jones says in a brief aside, keeps secret not just matters actually under consideration by a grand jury, but also matters "likely to occur" there in the future...
...Blalock, Jr...
...Assume that Starr genuinely believes what Brill has him saying about Rule 6(e), which Starr also denies...
...Assume that, in every instance Brill recounts, Starr really has leaked the dirt on Clinton and Lewinsky—something it is absolutely wrong to assume, but assume it anyway...
...I had to get [Starr's] letter from CNN," Brill complained on that night's Larry King Live, "even though it was addressed to me...
...Then there is the First Corollary to the Rule of Brill: This courtesy must be reciprocated...
...And here is the Eleventh Circuit: The 1988 case C.W...
...David Tell is opinion editor of THE WEEKLY STANDARD...
...As the author of The Weekly Standard's "Pressgate" analysis, I here have a few of my own disclosures to make...
...But these are technicalities...
...Only the Supreme Court can do that...
...Brill didn't miss a beat...
...But those leaks "not explicitly linked" to ongoing grand-jury proceedings, the appellate panel decided, did not establish a prima facie case of illegal disclosure...
...Brill would never be guilty of such appalling lapses, he suggested...
...From these two Starr-provided clue-scraps—and from an amazingly tendentious rereading of the Lewinsky press coverage in January and February—Steven Brill infers that every damaging Bill-and-Monica tidbit now in public circulation was hatched from the Office of Independent Counsel...
...Circuit precedent most clearly relevant to the Lewinsky controversy—for the uncanny similarity of the anonymous sources involved—is Barry v. United States, a 1989 appeal brought by D.C...
...I hope you think I quoted you accurately, Tim...
...The man is a felon and a boor...
...Two final disclosures, then...
...Brill was just blowing smoke...
...That rule, Brill reports Starr told him, does not apply to "what witnesses tell FBI agents or us before they testify before the grand jury...
...Brill was raising a point of propriety, integrity, disclosure...
...Except that Dow Jones, decided May 5 of this year, is not a ruling about 6(e) per se and does not pretend to do anything more than briefly summarize the D.C...
...And those decisions are hardly the unmistakable rebuke to Starr that Brill imagines...
...In this tiny acorn, Mr...
...Like, for example, you can ask Tim...
...Justice Brill perceives a mighty oak: Even remotely potential grandjury information acquired during FBI field interviews, he wants us to understand, may never be the subject of conversation between prosecutors and reporters...
...To Russert, Brill disclosed that "Pressgate" had not disclosed what it should have disclosed: Brill and his wife Cynthia's recent, modest financial contributions to Bill Clinton's Democratic party and several individual Democratic candidates...
...So I was unable, the first time around, fully to disclose just how shabby is the theoretical—as opposed to evidentiary—basis on which Steven Brill contends that Ken Starr has committed a crime...
...The following year, a federal trial court summarily rejected Barry's complaints against the prosecutors...
...v. U.S...
...I disclose, first, that I didn't originally mention that Brill's Content was working on an article about Fred Barnes's speaking fees—because I wasn't aware of it...
...mayor Marion Barry...
...Where were Starr's manners...
...Tim knows that I've called him for comment before I quoted him...
...On June 11, he gave the Office of Independent Counsel a heads-up about "Pressgate," Brill's novella-length article identifying Kenneth starr as the source of illegal leaks from the Monica Lewinsky grand jury to Newsweek, the Washington Post, ABC News, and the rest of the universe...
...Your subject may not publicly defend himself against such a frontal attack on his reputation—by pointing out, for example, that you don't know what you're talking about— until he has contacted you privately first...
...The independent counsel, Brill insists, is "the only lawyer I've ever talked to" who has such a "narrow, narrow, narrow" take on 6(e)'s requirements...
...Circuit's Dow Jones ruling nowhere mentions the Blalock case...
...I disclose that if I had been aware of it, I still wouldn't have mentioned it—because Fred Barnes's speech-circuit activities, which he has never made a secret, were irrelevant to the subject of my piece: the extraordinary collection of historical fictions, key omissions, disputed quotations, and unwarranted inferences contained in Brill's 29-page essay...
...The basic case, SEC v. Dresser Industries, from 1980, bluntly rejects the notion that a "veil of secrecy" must be drawn "over all matters occurring in the world that happen to be investigated by a grand jury...
...On Fox News Sunday on June 14, Brit Hume read Steven Brill those words from Blalock and asked him whether that case was "not good law...
...Here's one from the Third Circuit: Information "developed by the FBI, although perhaps developed with an eye toward ultimate use in a grand jury proceeding, exists apart from and was developed independently of grand jury processes" and is therefore not protected by Rule 6(e...
...And one federal appellate court cannot "overrule" another federal appellate court, in any event...
...Steven Brill could not be more insistent on this point...
...Here's a tax case from the Ninth Circuit: "Taxpayers argue that all material 'amassed for presentment to a grand jury' is 'protected by the secrecy provisions of Rule 6(e).' Taxpayers' statement of law is incorrect...
...Assume that Brill has reported Starr's words in faithful context, which Starr denies...
...And there is more than just the D.C...
...No, it is not...
...On Meet the Press, Brill angrily questioned panelist and Weekly Standard executive editor Fred Barnes about the ethics of this writer's article last week on "Pressgate" ("Bill Clinton's Lap Dog," June 29...
...Circuit's past 6(e) decisions...
...Imagine that...
...I disclose, next, that I did not call Steven Brill while I was cataloguing his mountain of errors— because nothing he might have said could change the fact of those errors...
...held that Rule 6(e) "does not protect from disclosure information obtained from a source other than the grand jury, even if the same information is later presented to the grand jury...
...And only a single, three-word phrase of that single court's single opinion seems to offer Brill any possible help at all...
...And two, I didn't call him this time, either...
...The following day, "once we got it confirmed that Judge Starr had the article"—^but not a moment before, mind you—"we then sent it to the press...
...And he's correct about that...
...When they speak dishonestly, and create a national spectacle in the process, other writers are entitled— even obliged—to point it out...
...In television interviews since "Pressgate" was published, Brill has gone even further...
...It takes a lot of time, but this is a perfectly checkable assertion...
...And "every court that's had to take a look at it has flatly contradicted" that interpretation...
...I disclose, further, that I have only this past week completed a thorough review of the federal case law on violations of grand-jury secrecy...
...Brill has only ever cited a single federal court in support of his argument, the Circuit Court of Appeals for the District of Columbia...
...Bobbing in the ocean of text that is "Pressgate" are just a handful of quotes from Brill's hour-and-a-half-long, mid-April interview with Starr...
...Steven Brill hasn't done any serious "legal research" whatsoever...
...It was specifically overruled in a case in the court of appeals in Washington on May 5 [Dow Jones...
...Brill gets Starr to "admit"—Brill's loaded word—that he and one of his deputies "have talked with reporters on background on some occasions...
...Circuit to go on...
...The D.C...
...There had been news reports about Barry's cocaine use sourced to "law enforcement officials...
...That case is very specifically not good law...
Vol. 3 • July 1998 • No. 42
