In his much-discussed new magazine, Brill’s Content, Steven Brill confidently accuses independent counsel Kenneth Starr and his deputies not merely of being imprudent in having so many off-the-record chats with reporters–a valid criticism–but of committing federal crimes, by leaking grand-jury secrets.

This deadly serious conclusion is based on a shallow and slanted analysis of the law.

(I leave it to others, for now, to examine Brill’s account of the facts in his 24,000-word ”Pressgate” and his hotly disputed claims that Starr’s office has been the source of various leaks too eagerly lapped up by a scandal-happy press. See this issue, p. 1452.)

A good place to start is the inference of criminality Brill drew from a Jan. 25 NBC News broadcast. Tom Brokaw asked correspondent Claire Shipman about ”an unconfirmed report that, at some point, someone caught the President and Ms. Lewinsky in an intimate moment.” Shipman answered, ”Sources in Ken Starr’s office tell us that they are investigating that possibility, but that they haven’t confirmed it.”

Brill’s conclusion: ”Of course, what Shipman did confirm in that report was the commission of one certain felony…:the leak of material from Starr’s office pertaining to a grand-jury investigation.”

The ”certain felony,” Brill suggested, was a violation of Rule 6(e) of the Federal Rules of Criminal Procedure, which bars prosecutors (among others) from disclosing ”matters occurring before the grand jury.”

One objection to Brill’s analysis is that there apparently had been no grand-jury proceedings on the Monica Lewinsky matter at the time of the Jan. 25 NBC report. A second, more serious objection is that the report did not even hint at the identity of any prospective grand-jury witness, let alone disclose planned or actual testimony.

The third and most fundamental problem is that nobody in the history of the United States–as best I can determine–has ever been prosecuted for making a disclosure remotely like the one that Claire Shipman attributed to Starr’s office. And such disclosures are very commonly made by prosecutors all over the country.

Note that Shipman suggested only that some prosecutor, asked about the ”unconfirmed report,” said something self- evident like ”That would be interesting,” while adding–to avoid misunderstanding–”We can’t confirm it.” This is a felony?

Brill has waved aside criticisms like mine by triumphantly citing a largely inapposite May 5 opinion (In re Motions of Dow Jones & Co., Inc., et al.) by the U.S. Court of Appeals for the District of Columbia Circuit. Most or all of Brill’s inferences of criminality rest largely on two sentences in that opinion:

”This phrase–‘matters occurring before the grand jury’–includes not only what has occurred and what is occurring, but also what is likely to occur. Encompassed within the rule of secrecy are ‘the identities of witnesses or jurors, the substance of testimony’ as well as actual transcripts, ‘the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.’ ”

These words do have a broad ring to them, and do make it clear that Rule 6(e) applies to some events outside the grand jury. But carefully read, they offer very little support for Brill’s implication that ”what is likely to occur” in the grand jury encompasses every investigative lead that a prosecutor might ever pursue, no matter how remote from any grand-jury proceedings.

Other phrases in the May 5 opinion–such as ”strategy or direction of the investigation”–also bristle with vagueness and ambiguity. Brill’s breathtakingly broad reading would make felons not only of Starr but of virtually every U.S. Attorney in the nation; of Justice Department officials from Attorney General Janet Reno on down, who routinely discuss the strategy or direction of criminal investigations (as distinguished from the strategy or direction of grand-jury proceedings) at press conferences; and of past special prosecutors ranging from Leon Jaworksi to Lawrence Walsh, who met privately with many reporters.

Brill’s broad reading is also undercut by some language in the same May 5 opinion, such as the statement that ”widely known” information ”has lost its character as Rule 6(e) material.” And other, more specific judicial discussions of Rule 6(e)’s scope flatly contradict the Brill view.

In a 1987 opinion by then-Judge Ruth Bader Ginsburg (Senate of Puerto Rico v. U.S. Department of Justice), for example, the same D.C. Circuit held that Rule 6(e) does not cover ” ‘all matters occurring in the world that happen to be investigated by a grand jury,’ ” or ”any and all information which has reached the grand-jury chambers,” or ”information ‘coincidentally before the grand jury (the) revelation (of which) would not elucidate the inner workings of the grand jury.’ ”

The touchstone, Ginsburg held, is ”whether disclosure would ‘tend to reveal some secret aspect of the grand jury’s investigation,’ such . . . as ‘the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.’ ”

Brill is closer to the mark in disputing the view (which he says Starr expressed in their interview) that Rule 6(e) does not bar disclosures of statements witnesses make to investigators before going in front of the grand jury. (Starr adamantly denies Brill’s claim that he has leaked such witness interviews.) Some courts would probably agree with Brill on this, at least if the witness was under the compulsion of a grand-jury subpoena and the testimony was imminent.

But Brill greatly overstated his case in asserting (on June 14, on CBS’s Face the Nation) that ”every court that’s had to take a look at it has flatly contradicted, you know, the use of that kind of loophole.” One of many possible examples to the contrary is Anaya v. U.S., in 1987, in which the U.S. Court of Appeals for the 10th Circuit held that disclosing ”a memorandum of what (a grand-jury witness) told an investigator outside the grand-jury room” would not violate Rule 6(e).

The reality, according to experts in the Justice Department and elsewhere, is that Rule 6(e)’s scope is defined differently by different courts, and that while leaking grand- jury transcripts and the like is clearly illegal, there is a large gray area, ungoverned by clear rules, in which a page of history is worth a volume of logic. And my historical research so far has not turned up a single precedent in which a federal prosecutor was convicted or even tried for violating Rule 6(e) by leaking to the press. Those caught leaking have rarely been deemed culpable enough to warrant more than a reprimand or on- the-job discipline.

Brill is also off the mark in asserting that ”it is clearly a violation of both Justice Department prosecutorial guidelines and the bar’s ethical code for prosecutors to leak substantive information about investigations to the press.” Neither Justice Department guidleines nor the ethical rules say anything that categorical.

There are, of course, important limits on disclosures about criminal investigations, and prohibitions on leaking for the purpose of blackening a person’s reputation or influencing prospective jurors, which are grave abuses of power.

But the United States Attorneys’ Manual expressly authorizes prosecutors to use ”a fair degree of discretion” in releasing to the public ”information about the conduct of law enforcement officers, prosecutors and courts, consistent with the individual rights of the accused,” especially in ”matters that have already received substantial publicity.”

The District of Columbia Rules of Professional Conduct authorize prosecutors to say what’s ”necessary to inform the public of the nature and extent of the prosecutors’ action and (to) serve a legitimate law enforcement purpose,” even if it ”heighten(s) condemnation of the accused.” The D.C. Bar’s official commentary stresses that prosecutors ”should be free to respond, insofar as necessary” to accusations ”of unprofessional or unlawful conduct.”

Similarly, then-U.S. Attorney Eric H. Holder Jr. stressed in a 1995 article that ”the public has a right to be kept reasonably informed about what steps are being taken to pursue allegations of wrongdoing” –especially when ”powerful figures. . . characterize criminal investigations of their alleged illegal conduct as ‘political witchhunts.’ ” Holder was named deputy Attorney General last year by President Clinton.

Brill may be right in suggesting that prosecutors would be wise to speak only (or at least primarily) on the record. But ignoring Brill’s advice is not a crime.

Full disclosure: I worked for Brill from 1989-97, and considered him a friend. My view of him now is informed in some small part by a potshot he took at me–as ”the complete anti- Clinton partisan”–in ”Pressgate.”

As Brill knows, I voted for Clinton in 1992. As he should know, my criticisms are based on the growing mountain of evidence that this President tortures the truth. That’s not partisanship.