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Starr spokesman acquitted of contempt for role in news story

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  1. Prior Restraint

    NMU         WASHINGTON, D.C.         Prior Restraints         Oct 10, 2000    

Starr spokesman acquitted of contempt for role in news story

  • A federal judge found that the government could not prove beyond a reasonable doubt that Charles Bakaly lied in denying that he was the “source” who told a reporter that Ken Starr had decided that a sitting president could be indicted.

Federal judge Norma Holloway Johnson acquitted Charles Bakaly, a former aide to Ken Starr, of criminal contempt on Oct. 6. The contempt charges had stemmed from allegedly false statements regarding whether Bakaly had divulged information to a New York Times reporter about Ken Starr’s potential indictment of President Clinton.

In January 1999, while Clinton’s impeachment trial was in progress, the Times ran a story claiming that Starr had decided that a sitting president could be indicted. The story cited “associates of Ken Starr” as sources.

The story noted that Starr had four options: end the investigation without an indictment; indict Clinton immediately; indict Clinton under seal; or indict Clinton once he leaves office. A source claimed that Starr believed that he had the constitutional authority to indict Clinton even though he was still in office, and some prosecutors wanted to seek an indictment when the impeachment trial ended.

The day after the story was published, Bakaly appeared on “Good Morning America” and stated that the Times articles was “not our story.”

Johnson had originally investigated the identity of the source after Clinton’s attorneys complained about the article. Clinton’s lawyers argued that it disclosed confidential grand jury information and that the timing of the article, appearing during the impeachment proceedings, was an effort by Starr to influence the Senate. Starr then asked the FBI to investigate whether anyone in his office was the source of the allegedly improper information.

In conversations with the FBI, Bakaly admitted that he spoke with Times reporter Don Van Natta and discussed the four options, but maintained that the four options were obvious to any legal analyst and that none of the information was confidential. Bakaly also admitted that he faxed Van Natta a public document discussing how prosecutors dealt with the Nixon impeachment years before. But Bakaly denied telling Van Natta that Starr had concluded he had the constitutional authority to indict Clinton while he was still in office, and that a group of Starr’s prosecutors wanted to do so once Clinton’s impeachment trial ended. Bakaly stated that Van Natta had already obtained such information from sources outside the Office of Independent Counsel and Bakaly told Van Natta that he would not discuss those details. At the behest of Starr’s lawyers, Bakaly signed an affidavit stating that he did not disclose any confidential information to the Times. The affidavit was later withdrawn by Starr’s lawyers and Starr asked Bakaly to resign.

Federal prosecutors claim that Bakaly told Van Natta everything in the story but lied about his involvement once the judge began an investigation. Van Natta has remained silent, neither confirming nor denying Bakaly’s version of the facts.

Johnson held a hearing to determine whether any of the information in the article was confidential and ruled that the article did, in fact, contain grand jury information. She therefore wanted to hold Bakaly and the Office of Independent Counsel in contempt. However, the U.S. Court of Appeals (D.C. Cir.) reversed Johnson’s ruling, finding that no grand jury information was revealed.

Despite the Court of Appeals’ ruling, Johnson asked federal prosecutors to charge Bakaly with criminal contempt because he failed to tell Johnson that he had given any information to Van Natta. Johnson also assigned the case to herself for trial without a jury.

At the trial, held in July 2000, prosecutors alleged that Bakaly lied about his role as a “source” of information. They claimed that Bakaly should have gone through the Times story, paragraph by paragraph, to identify which statements were his and which were not. Prosecutors also relied on his appearance on “Good Morning America” as evidence that he was somehow untruthful. Bakaly contends that he never denied he spoke to Van Natta; he merely stated that he never disclosed confidential grand jury information. Bakaly testified at his contempt trial that he did not leak any confidential information. He contended that his affidavit was not false, but that OIC lawyers had used oversimplified language.

On October 6, Johnson issued her opinion, finding that the government had not proved beyond a reasonable doubt that Bakaly’s statements were false. Johnson found that the affidavit was “designed to inform the court that Mr. Van Natta had told Mr. Bakaly that all of the reporter’s sources for sensitive, internal OIC information came from outside the OIC.” She also noted that “Bakaly revised the declaration to limit the sweep of his assertions to the court, thereby, making it more accurate and evincing some intent to provide a strictly truthful declaration.”

AG


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