Policy made plain.
Nov. 27 1998 3:30 AM



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"So," we e-mailed Steven Brill, "did they ask your question?" In Slate last week, the founder and editor in chief of Brill's Content proposed a killer question for the House Judiciary Committee to ask Kenneth Starr. The question, which actually was a long series of questions, boiled down to: "Will you waive any privileges you have so we can get to the bottom of whether your office has been illegally leaking to reporters?" Brill replied that several Democrats had asked the question, but Starr had refused to answer on the grounds that a federal judge had ordered the investigation of these leaks to be kept confidential. Brill noted that this order for confidentiality had been requested by Starr himself.

Brill's question could have been a lot simpler. It could have been something like: "Have you or anyone in your office leaked information from grand jury testimony to the press--before or after the testimony was given?" As any newspaper reader knows, the correct answer to this question is obviously yes. But Starr couldn't say yes because he's said variations on no for months and would be conceding a public lie. Is this beginning to sound familiar?

Brill didn't do it the easy way for two good reasons. First, he is admirably opposed to perjury traps, and therefore he didn't want to be seen as proposing a tooth for a tooth. And in fact he did not propose one: His question involved stripping away Starr's protections against the truth, not forcing him to repeat the lie under solemn oath. Second, Brill, as a media philosopher, is understandably queasy about using the law to "out" journalists' confidential sources. He has an explanation of why it's OK in this case, but his queasiness moderates his delight at putting the screws on Starr the way Starr put them on Clinton.

But let us rise above high-mindedness for a moment. The symmetry between Starr's case against Clinton and the case against Starr himself is so striking that it would seem heavy-handed in the plot of an opera. The general arc of self-destruction is the same: Like Clinton, Starr did something wrong but not fatally wrong. Then he issued a mixture of lies and weasels about it, making it virtually impossible for him to give an honest answer if asked a straightforward question. That gave his enemies a way to trap him into an undeniably serious crime: perjury under oath in an investigation of alleged high crimes by the president of the United States. In both cases, the investigation itself would produce the crime.

Many details are also eerily similar:

Starr's leaks pretty clearly violated the federal rules of criminal procedure, just as Clinton's lies in the Paula Jones deposition pretty clearly violated the perjury laws. But neither the rules nor the laws are usually enforced in circumstances like these. Prosecutors leak all the time.

As Brill points out in the December issue of his magazine, Starr's weasels laughably echo Clinton's. Clinton has said oral sex doesn't count. Starr has said that leaking grand jury testimony before it's actually delivered doesn't count.