While President Clinton took a break from his legacy-building efforts at Camp David to sign a historic trade deal with Vietnam, the former spokesman of vanquished presidential accuser Ken Starr sat as a defendant in U.S. District Court in Washington.
Charles Bakaly III, Starr's former spokesman and senior counsel to the independent counsel, faces a contempt-of-court charge for allegedly submitting a false declaration to a federal judge investigating leaks in Starr's office. If prosecutors succeed in their case against Bakaly (who once wrote to Salon to complain about investigative reporter Murray Waas' efforts to obtain sources within his office), he will become the first federal convict to emerge from the Monica Lewinsky case.
In an ironic twist, Bakaly, a longtime Republican Washington insider, faces a prosecution that is relying on tortured logic similar to that which Starr employed against Clinton: He's not on trial for allegations that he leaked information; he stands accused of lying about being the source of the leak.
"This case is about Mr. Bakaly's efforts to conceal or cover up his involvement" in a New York Times article about Starr's office, prosecutor John Griffith said Thursday morning in his opening statement to Chief U.S. District Judge Norma Holloway Johnson, who is acting as both judge and jury in the trial.
Under the headline "Starr Is Weighing Whether to Indict Sitting President," Don Van Natta Jr. reported on Jan. 31, 1999, during the height of Clinton's Senate impeachment trial, that Starr had recently concluded that he had the constitutional authority to seek a grand jury indictment of a sitting president, according to "several associates of Mr. Starr." The explosive Page 1 story noted, however, that Bakaly "declined to discuss the matter."
Van Natta's report drew an immediate call for an investigation by the president's personal lawyer, David Kendall, who accused Starr's office of having "engaged in illegal and partisan leaking" and asked Johnson to launch an inquiry.
Starr immediately distanced himself from the ill-timed article. "This office has no desire to inject itself into the constitutional process under way in the Senate," the independent counsel wrote in a statement at the time. But the leak scandal as reported on the cable networks and newspapers eclipsed the anger it wrought inside Starr's office.
The public first learned of the magnitude of the article's impact in Thursday's testimony. Starr's entire office had had a meeting on Jan. 27, just days before the article's publication, to discuss various options for indicting the president. Donald Bucklin, an attorney who worked for Starr at the time, told the court he was "outraged" by the article.
Solomon Weisenberg, then a staff attorney for the independent counsel, shared his similar reaction on the stand. "I thought we would be severely damaged by it, pummeled by it," Weisenberg said. "People would see it as a rather ham-handed effort" by Starr's office to influence the outcome of the Senate trial.
Bucklin, who had the unenviable task of responding to Judge Johnson's inquiry, said Bakaly initially told him he was not one of the "associates" named in the article. He helped Bakaly draft a declaration to the court stating that Bakaly had refused to discuss "nonpublic" matters with Van Natta.
The allegations of leaks within Starr's office had mounted to the point that Starr had no choice but to act -- inaction would have created the appearance of complicity in the leaks -- so he asked the FBI to investigate. Though much of the investigators' work remains under seal, it is known that numerous interviews with Bakaly ended with his admission that he may have "inadvertently confirmed" parts of Van Natta's story to the reporter.
When Bucklin read Bakaly's FBI statement, he concluded Bakaly had discussed nonpublic matters in the case. He withdrew Bakaly's original declaration to the court, and told Judge Johnson that Starr's office could no longer say that it had not assisted Van Natta.
Bakaly resigned soon after the alleged discrepancy was discovered.
In her probe, Judge Johnson concluded that the Times story presented material suitable for a grand jury, and she sought to prosecute both Bakaly and Starr's office on charges of criminal contempt. But a federal appeals court didn't buy it, and overturned Johnson's ruling last September, deciding that Bakaly hadn't committed a crime by confirming Van Natta's story. The rebuffed Judge Johnson then evidently changed her tune, and the Justice Department then went after the former spokesman for allegedly lying.
In her opening statement Thursday, defense attorney Michelle Roberts sought to downplay Bakaly's shifting stories and maintained that her client had done nothing more than his job. "As spokesperson for the office of independent counsel, Mr. Bakaly's job was to interface with the public in general and the media in particular," Roberts told the court.
As the court records and the first day's testimony demonstrate, Bakaly was hardly a fountain of information for Van Natta. By all accounts, the Times reporter received almost all of the juicy details from other sources.
During his time on the stand, Bucklin told the court that Bakaly had speculated about the leakers' identity. He mentioned Bruce Udolf, a former prosecutor in Starr's office, and Ronald Rotunda, a law professor at the University of Illinois who consulted for Starr -- two people who could rightly be considered "associates of Mr. Starr."
Long before America ever heard the name Monica Lewinsky, and long before Bakaly went to work for Starr, Clinton's defenders were complaining about leaks coming out of the independent counsel's office -- which seemed only to increase after the Lewinsky story broke. Indeed, the first effective response by the White House to the Lewinsky affair was the release of a letter from Clinton attorney Kendall to Starr outlining a number of early leaks in the case.
Of course, the White House emphasized those leaks because it couldn't talk about anything else at that point.
"We could not answer with the facts," then White House spinmeister Lanny Davis told Steven Brill in Brill's Pressgate story, the definitive chronicle of leaks from Starr's office, which appeared in the premiere issue of Brill's Content. (Disclosure: I was a writer at that magazine at the time and remain a contributing editor.) "So we answered with a fight about the process," Davis continued.
Indeed, the fight over Starr's investigation has outlasted the fight over the facts of the Lewinsky case.
Leaving the courthouse, Bakaly had no comment on the day's events. His trial is expected to conclude Friday.