Defense: Former Starr Aide Told Truth in Leaks Case
By Bill Miller
Washington Post Staff Writer
Saturday , July 15, 2000 ; A08
Lawyers representing Kenneth W. Starr's former spokesman
yesterday asked a federal judge to acquit him of a criminal
contempt-of-court charge, saying Charles G. Bakaly III has
consistently told the truth about his dealings with a New York
Times reporter.
Bakaly never revealed any nonpublic information about
then-independent counsel Starr's office, said lawyer Michele A.
Roberts. And, she said, he was not lying or misleading the court
when he signed a declaration that denied doing anything improper.
Roberts made her pitch after the government rested its case
against Starr's former aide, who is accused of making false and
misleading statements in the declaration.
Chief U.S. District Judge Norma Holloway Johnson said she will
rule on the defense motion Monday. If the case proceeds, the
defense could call Bakaly as a witness.
Johnson is hearing the trial without a jury. Under federal law,
no jury is required because the maximum term Bakaly could face is
less than 180 days in prison.
Justice Department lawyers, prosecuting the case, maintained that
Bakaly revealed plenty of nonpublic details to New York Times
reporter Don Van Natta Jr., whose January 1999 story has been
reviewed line by line in two days of testimony. Bakaly, they
said, was among the unnamed "associates" of Starr quoted in the
story, which talked about the independent counsel's options and
thoughts about prosecuting President Clinton.
Two FBI agents testified yesterday that Bakaly later told them
that he had discussed possible options with Van Natta and had
believed the reporter would source the article in such a way that
it would appear no one from Starr's office had commented.
In fact, FBI agent Thomas Lewis said, Bakaly later acknowledged
he was one of the associates cited in the article. According to
Lewis, Bakaly had asked Van Natta not to "burn" him, and told the
agent, "I played a risky game, and I got burned by this."
Headlined "Starr Is Weighing Whether To Indict Sitting
President," the article came during the Senate's impeachment
trial of Clinton on charges stemming from the Monica S.
Lewinsky matter. Among other things, it said that Starr had
concluded he had the constitutional authority to seek an
indictment against Clinton before he left office, and that a
group of Starr's prosecutors wanted to act quickly.
The report appeared just four days after an all-day meeting in
Starr's office in which the independent counsel's staff privately
discussed four possible ways to deal with Clinton--don't indict
him, indict him now, indict him under seal or indict him once he
left office. The article quoted "associates" who described the
four scenarios.
The FBI agents testified that Bakaly told them he hoped to
deliver a message through Van Natta that Starr's work would go on
after the impeachment trial. The Justice Department presented
the testimony in hopes of showing that Bakaly was a willing
participant in the Times report, contrary to his representation
that he had not discussed internal matters.
In the wake of Van Natta's story, Starr's office began an
internal investigation to determine if anyone leaked unauthorized
information, recruiting a team of FBI agents to interview Bakaly
and others. Lawyers for the White House and Clinton asked
Johnson to find Starr's office in contempt of court for revealing
secret grand jury information.
Bakaly's declaration was submitted to Johnson as a way to
reassure her that no one in Starr's office had leaked secret
grand jury material. In it, he stated that he refused to comment
on what Starr or the office was thinking or doing.
After Bakaly was interviewed by FBI agents--five times in a
three-week period--Starr's lawyers withdrew Bakaly's declaration
and referred the matter to the Justice Department for further
investigation. Bakaly resigned under pressure in March 1999. A
federal appeals court concluded the article contained no grand
jury material, but Bakaly's statements in the declaration kept
the contempt-of-court issue alive.
Prosecutors rested their case against Bakaly without calling Van
Natta.
In arguing that the charge should be dismissed, Roberts said
Bakaly's declaration correctly conveyed that he did not reveal
anything that was not in the public domain. Then, making
reference to someone else not on the prosecution's witness list,
Roberts said, "If it's nonpublic, Ken Starr could have told us
that."
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