Starr Emerges as Key Lawyer for N.Y. Times

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The New York Sun

As the New York Times gears up for what it argues is a First Amendment fight to stop federal prosecutors from learning the identities of two reporters’ confidential sources, the paper is enlisting a surprising ally.


The Times, which is suing Attorney General Ashcroft in federal court in Manhattan, has retained Kenneth Starr, the former special prosecutor who, in years past, was a darling of the right and felt the sting of the paper’s editorials.


Mr. Starr is teamed up with the New York lawyer Floyd Abrams, a veteran First Amendment lawyer, to block a federal prosecutor at Chicago from obtaining phone records of reporters Philip Shenon and Judith Miller. The two reporters covered national-security issues following the September 11 terrorist attacks.


Prosecutors want the records for an investigation into alleged leaks – leaks that, they said, compromised investigations into financing of terrorism.


Unlike other recent cases in which prosecutors have subpoenaed reporters directly, this time they are planning to demand the records soon from the Times’s phone company. In criminal investigations, phone companies typically grant law enforcement’s requests for records without a fight, lawyers said.


The lawsuit has become a closely watched contest with potentially far-reaching impact on news organizations.


It also, in the case of Mr. Starr, marks a highly public union of strange bedfellows. In the past, Times editorial writers have taken barbed shots at the paper’s current defender.


In 1999, as Mr. Starr prepared a final report on the Whitewater investigation, an editorial urged him to “partly repair his reputation for bad judgment by getting this report right.”


An editorial later that year said Mr. Starr “was skittering away from that obligation” by leaving office without finishing the report. The writer opined that Mr. Starr had come to his post as a “former federal jurist with a reputation for sound judgment” but in leaving early he had “diminished a reputation damaged for the most part by his own legal and public-relations decisions.”


Mr. Starr, an experienced litigator now working in Washington for Kirkland and Ellis LLP, was recently installed as the dean of Pepperdine University Law School. He is a former U.S. solicitor general and a former federal appellate judge.


Mr. Starr makes an “interesting” but natural choice for the case, said Tom Goldstein, a lawyer in Washington who specializes in litigating before the Supreme Court. He called Mr. Starr “a deep think kind of guy” who could supply legal firepower if the Times lawsuit leads to appeals and even a U.S. Supreme Court hearing.


“Everyone, including Ken Starr, wants to be involved in the biggest cases, and, irony or not, this case has the ability to be of towering importance,” Mr. Goldstein said. “When a good fight comes along, you want an important paying client. It quickly becomes a forgive-and-forget situation.”


Mr. Abrams said yesterday that he wasn’t sure but thought Mr. Starr may have represented the Times before in an appeals case.


Mr. Starr did not return a call seeking comment yesterday. A spokesman for The Times spoke briefly about the lawsuit but did not respond to further inquiry.


In an August letter to United States Attorney Patrick Fitzgerald of Chicago, Mr. Starr and Mr. Abrams strongly urged the government not to seek the telephone records, in the interest of preserving “a vigorous, aggressive and independent press.”


The government’s request for the phone records “is deeply troubling,” they wrote, and “wholly inconsistent with constitutional principles.”


Their adversary, Mr. Fitzpatrick, has gained attention lately as the special prosecutor overseeing the probe of who leaked the name of a CIA undercover agent, Valerie Plame, to a columnist, Robert Novak.


The case involving the terrorist funds is separate. It began when Mr. Fitzgerald wrote to the paper asking for assistance in an FBI investigation into the source of an alleged leak in December 2001 of an impending search involving an Islamic charity in Illinois. The search was part of a continuing and, the Times said, well-known investigation of the charity.


The prosecutor said that on Dec. 13, Mr. Shenon gave a “tip” to the charity Global Relief Foundation about the planned raid. Mr. Shenon’s actions, the prosecutor said, “seriously compromised the integrity of the investigation and potentially endangered the safety of federal law enforcement personnel.”


Mr. Fitzgerald requested an interview with Mr. Shenon and copies of his phone records for two weeks in September and December of that year.


The Times rejected the request. The issue appears to have remained dormant until this August, when Mr. Fitzgerald wrote again. That request added phone records from Ms. Miller involving a similar situation with an Islamic organization in Texas.


Mr. Fitzgerald warned that because of the seriousness of the leaks, he would seek the records from the newspaper’s phone company if the Times refused to comply.


Mr. Abrams said yesterday that Mr. Shenon had called the charity for comment and did not tip it off about anything. He said that any suggestion that the raid was a surprise “is without foundation” and that Mr. Shenon did not endanger investigators, as the government insists he did.


Two months before the raid, Mr. Abrams said, the paper had reported on a federal investigation into the foundation and its alleged ties to terrorists, including Osama bin Laden. According to a spokeswoman for the paper, at the time the charity was suing the Times for defamation over its coverage.


Mr. Abrams said the phone records for the two reporters also reveal conversations with numerous other confidential sources for crucial stories about how the government was responding to terrorist threats. If the government wins, Mr. Abrams said, “sources won’t trust journalists, and therefore the public won’t receive news.”


Mr. Abrams and Mr. Starr are arguing that reporters are protected from revealing identities of confidential sources under the Constitution as well as under the Justice Department’s own internal guidelines. Mr. Abrams also acknowledged, however, that the “case law is less than fully clear in the area.”


“This does come up occasionally,” he said of the issues raised in the Times case, “but as far as we know it’s unusual for the government to seek to gather information about journalists’ sources by subpoenaing telephone companies.”


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