Washington Plays The 'Leak' Game

Paula Jones case shows how leaks have run wild, and imperiled legal cases.

Three days.

That's how long key parts of President Clinton's secret deposition in the Paula Jones sexual-harassment case remained under wraps.

Seventy-two hours.

A little over 4,000 minutes.

In a way, it was a remarkable accomplishment by Washington standards, a city where "sensitive" information is as much a commodity as pork bellies in Chicago or T-bills on Wall Street.

And now after two weeks of wondering whether Mr. Clinton may have lied or urged others to lie, after two weeks of contemplating (prematurely) the possibility of resignation or impeachment, one more question lingers, with all those others, still unanswered: Is anyone going to get in trouble for spilling the presidential beans?

Not likely, say legal and media analysts familiar with the dynamics of the phenomenon known across Washington as leaking.

"When somebody can lay the source of the leak on one side or the other, you will have serious sanctions. But the ability to prove that will be as difficult as proving exactly what went on between the president and the intern. Actually, it will probably be more difficult," says Abbe Lowell, a prominent defense lawyer here.

Clinton isn't the first president to be stung by damaging leaks. Every president has had similar trouble. Richard Nixon was so concerned about the outward gurgle of information that he set up a squad of "plumbers" to plug the leaks, illegally if necessary.

In the Paula Jones case, Clinton's plumber was supposed to be the legal process itself and was based on the authority of a federal judge.

Everyone present at Clinton's Jan. 17 deposition was well aware of the ground rules surrounding the top-secret interrogation. By order of US District Judge Susan Webber Wright, under no circumstances were even the slightest details of the president's responses to be relayed to the media.

But within days, reporters everywhere were disclosing what were purported to be crucial aspects of Clinton's sworn answers.

From a journalistic perspective, such news reports are dangerous because a leak may not be accurate and likely reflects the undisclosed bias of the leaker. From a legal perspective, such a flood of leaks in the face of a protective order by a federal judge suggests a lack of respect for the law and the legal process.

As a federal judge, Ms. Wright has the authority to punish a leaker with a fine, jail time, or an unfavorable ruling to the leaker's side of the case.

This week, Clinton's lawyer, Robert Bennett, urged the judge to hold the Paula Jones legal team responsible for the recent leaks. He is asking the judge to punish Ms. Jones and her lawyers by granting his request that the investigation phase of the lawsuit be cut short by two months so that the trial can begin as early as March instead of late May.

Legal experts say the judge is unlikely to punish anyone unless she is able to uncover credible information about who is leaking. Such information rarely emerges.

Hopeless battle

But if there is almost no chance of stopping leaks, why did Judge Wright issue a blanket protective order, in effect directing that the transcript of the Clinton deposition be treated as if it contained nuclear secrets or even the formula for Coca-Cola?

"Everyone recognizes that [broad gag orders] are not tremendously effective," says C. Thomas Dienes, a law professor at George Washington University and co-author of the book "Newsgathering and the Law," which discusses leaking. "What [a gag order] really does is try to hold the publicity down. It limits it somewhat. It doesn't make it quite as blatant."

In the Paula Jones case, it worked for a few days. But when news about the Lewinsky tapes broke, the situation quickly degenerated into O.J. on the Potomac. The speed and scale of leaking shocked even veteran observers.

"In a town where most stories are driven by leaks, this is the closest thing to a sieve that I have seen in a long time," says Paul McMasters, First Amendment ombudsman at the Freedom Forum.

Becoming a farce?

"This is reaching the point of a farce in terms of having this order in place and yet all this leaking is going on," says Jane Kirtley of the Reporters Committee for Freedom of the Press. "I really don't see how anyone's interest is served in the long run based on all this innuendo."

Ms. Kirtley and other legal experts question the necessity for the gag order. Clinton's lawyers wanted the order to protect their client from embarrassing details that might come out in the pretrial phase of the Jones case. In retrospect it was a reasonable concern.

The problem, some legal experts say, is that courts shouldn't worry about whether parties in lawsuits are embarrassed by credible evidence emerging in a suit. They shouldn't privatize the courts by excluding public oversight. Nor should judges grant special favors to a defendant, they say, even if he is one of the world's most powerful leaders.