- The Washington Times - Wednesday, July 12, 2000

If, as the Justice Department charges in its oddball contempt-of-court case against Charles G. Bakaly III, the former spokesman for Independent Counsel Kenneth W. Starr did confirm to a New York Times reporter that President Clinton might face indictment by the independent counsel, it's hard to summon the requisite outrage to clamor for putting the man behind bars. After all, any independent counsel worth his independence might indict a target of his investigation. No one needs Deep Throat to figure that out.

Nonetheless, when the article first appeared in January, 1999, during Mr. Clinton's impeachment trial in the Senate, the White House feigned the appearance of being shocked, shocked, prompting U.S. District Judge Norma Holloway Johnson to initiate an investigation into whether Mr. Starr or his staff had violated grand jury secrecy rules.

This was not the first time Judge Johnson, who oversees the grand jury, had opened a leaks inquiry. Nor was it the first time the judge would be overruled on the matter.

Recall that beginning in February 1998, David Kendall, Mr. Clinton's personal lawyer, opened a daring new front in the public relations war by charging that the Office of Independent Counsel (OIC) was leaking confidential grand jury information. An appeals court ultimately judged the charges groundless, but they certainly impressed U.S. District Judge Norma Holloway Johnson, who has consistently ruled against the OIC on Mr. Kendall's leak charges. Her rulings have not exactly stood the test of time. At last count, Judge Johnson had been reined in on three separate occasions by a federal appeals court for her rather extravagant, even Kendallian readings of grand jury secrecy rules which, if allowed to stand, would outlaw most lawyer-reporter exchanges outside lunch orders.

The New York Times article is a case in point. Having determined that the article contained no grand jury secrets, an appeals court panel unanimously overruled Judge Johnson in September 1999, thus preventing her from initiating contempt proceedings against Mr. Starr and the OIC staff. (Even the Justice Department, appointed by Judge Johnson as prosecutor against the OIC, agreed there had been no violation of grand jury secrecy rules.) So how is it that Mr. Bakaly now stands trial for charges stemming from the same article?

The answer verges on the Kakfaesque. Mr. Bakaly stands accused, not of leaking grand jury secrets, but rather of falsely denying that he gave what the Justice Department calls "nonpublic information" to a reporter presumably concerning the possible indictment of Mr. Clinton. His lawyers contend that he was simply confirming "a truism." In their pretrial brief, they also argue that the three sworn statements in question were edited and amended against Mr. Bakaly's wishes by OIC prosecutors to reveal as little as possible to Mr. Clinton's lawyers, even to the point of suggesting that Mr. Bakaly had provided no information whatsoever to the reporter not even a truism. Does the phrase "frivolous case" begin to form in the cranial cavity? As even Julian Epstein, the Democratic counsel on the House Judiciary Committee and one of Mr. Starr's harshest critics, put it, this is a "terrible" case, a "semantical game of gotcha. There is no real underlying offense here," Mr. Epstein said this week.

It certainly makes you wonder especially considering that if Judge Johnson wants to slap contempt citations on offenders against her court, she's overlooking the most deserving candidate of all: Bill Clinton.

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