Charles Bakaly III and Telling What Isn’t Secret

The New York Times

July 17, 2000

The contempt trial of Charles Bakaly III is something of a curiosity in Washington. In a town where leaks flow like a powerful torrent down every avenue, the prosecution of a spokesman based on an innocuous disclosure seems almost comically misplaced. Nevertheless, Mr. Bakaly, who was the spokesman for the independent counsel Kenneth Starr, is facing a criminal conviction for denying that he was the source for a New York Times reporter in January 1999.

For defense attorneys, the prosecution of a government lawyer would have been welcome if it were for leaking information that could not legally be made public. Government lawyers routinely leak facts from grand jury proceedings and commit other ethical violations with no response from most federal judges.

But Mr. Bakaly is not in the dock on such a charge; he is accused of criminal contempt under a rule that punishes false statements that delay or obstruct a court. The statements and the delay, however, came after a legal error of the court itself, which misinterpreted a federal law. The decision to initiate an inquiry into confidential communications raised serious concerns for lawyers who handle high-profile cases. The decision to pursue a criminal case against Mr. Bakaly only magnifies those concerns.

Mr. Bakaly’s problem began with a Times article citing unnamed “associates” in the Office of the Independent Counsel in explaining options for the investigation. The article said that the office was still considering indicting the president and that his impeachment would not affect the ultimate decision of whether to prosecute.

These options had been widely discussed by various legal commentators. And it was already well known that, as the article also said, some on Mr. Starr’s staff favored prosecution.

Unlike a typical grand jury case where a target’s identity is confidential, the independent counsel’s investigation was aimed quite publicly at the president. The preference by some lawyers in Mr. Starr’s office for prosecution is hardly surprising. The problem was not the content of the article, but its timing. It appeared at a critical stage in the impeachment of President Clinton.

For most judges, the article would have justified no more than a tongue-lashing in chambers. But in a critical error, Chief Judge Norma Holloway Johnson decided the article contained secret grand jury information — though nothing in it remotely resembled such information. She wanted a prosecution under the federal grand jury law, which could have brought a lengthy prison sentence. The Court of Appeals, however, disagreed, and found that the article did not contain any secret grand jury information.

Judge Johnson then proceeded to fashion a criminal contempt violation against Mr. Bakaly, a charge that gives her enormous discretion and allows her to sit in judgment without a jury. Mr. Bakaly was now charged with lying to the court in denying that he was a source of the information and then having his office file false papers denying that it was the origin of the information. Mr. Bakaly insists that he truthfully denied releasing “nonpublic” information and admitted he had spoken with the reporter.

More is at stake here than the future of an accused leaker with a penchant for mismatched outfits. Most judges are uncomfortable with statements in the press about pending cases and would like lawyers to keep monastic silence. Lawyers, however, need to defend their clients both in court and in public. All parties, even the government, are allowed to speak to reporters so long as their comments do not influence or prejudice a case or release information under seal.

Judge Johnson says she will convict Mr. Bakaly if the government can show that his statements “required the court to hold two in-chambers conferences with outside counsel” or imposed unnecessary work or costs — hardly grievous injuries. None of this completely exonerates Mr. Bakaly, who should have been more forthcoming at the outset of the inquiry. Moreover, the use of leaks by all sides in the Clinton crisis was itself a scandal. In a city of habitual leakers, however, the prosecution of Mr. Bakaly offers no more justice than a random execution for collective guilt.