- The Washington Times - Monday, July 24, 2000

It is not every day that a conservative commentator criticizes a liberal commentator for defending a conservative spokesmen.
Recently, in this newspaper, Tony Blankley took me to task for questioning the basis for the prosecution of Charles Bakaly, the former spokesman of former Independent Counsel Ken Starr ("Shrinking Standards," July 19, 2000). Mr. Blankley suggested that, just as I argued for the impeachment of President Clinton for lying, I should be supportive of the trial of Mr. Bakaly for allegedly lying to a federal court during the investigation of Mr. Clinton. The comparison of Mr. Blankley and others to the case of Mr. Clinton is breathtakingly misplaced. It is not enough to say that both men are accused of lying, therefore, both charges equally merit prosecution. The case against the president for both lying under oath and obstruction was overwhelming, as determined by a federal court. The evidence presented against Mr. Bakaly is laughable in comparison. Moreover, every year, highly credible allegations of grand jury leaks and illegal conduct are made against federal lawyers without any response from the courts or the Justice Department. Yet, in a case with no direct evidence of a false statement to the court, the court has vigorously pursued this one case on circumstantial and speculative grounds.
It was for that reason that I stated that "in a city of habitual leakers … the prosecution of Mr. Bakaly offers no more justice than a random execution for collective guilt." While Mr. Blankley objected to this statement as a mere rationalization, he misconstrues the point. Mr. Bakaly is a random target because there is no objective evidence of a crime. Claiming that a trial of Mr. Bakaly supports "the rule of law" sacrifices the content of the law for the mere appearance of consistency. The question is what law is applied and whether it is applied faithfully. At issue is the meaning and proper use of the sanction of criminal contempt. The criminal contempt charge against Mr. Bakaly is based on a dangerously broad interpretation of criminal contempt that would expand the power of the court far beyond its proper limits.
Mr. Bakaly's problems began as part of a misguided inquiry into the disclosure of information under seal during the grand jury proceedings. Chief Judge Norma Holloway Johnson launched the inquiry after an article appeared in the New York Times. Citing unnamed "associates" in the Office of the Independent Counsel (OIC), the article simply explained that there were a number of basic options for the independent counsel in proceeding with his investigation and not that some prosecutors favored prosecution. It is purely conjecture whether Mr. Bakaly released sealed information in this interview because the article itself does not contain such information.
Nevertheless, Judge Johnson mistakenly ruled that the article did contain sealed information and laid the foundation for a prosecution under the grand jury law. The Court of Appeals, however, reversed Judge Johnson and found that the article was devoid of grand jury information.
After her reversal, Judge Johnson simply referred a different charge, criminal contempt, against Mr. Bakaly. Mr. Bakaly was accused of lying to the court in his denials that he was a source for any "nonpublic information" in the article. There is little evidence to contradict Mr. Bakaly on this point. Mr. Bakaly never denied being a source in the story to the court. To the contrary, he admitted that he had spoken with the reporter but denied that he was the source for any nonpublic information. The distinction is important.
Judge Johnson's legitimate concerns in any inquiry should have been confined to nonpublic information. The court does not have the right to prevent attorneys from speaking with the media unless the attorneys disclose information under seal or make comments that prejudice a pending case. There was no sealed information in the article, and Mr. Bakaly is not charged with such a violation. Moreover, there was no chance of prejudice from such comments for a grand jury nor was such prejudice alleged. Rather, the primary concern at the time was how the article would affect the impeachment process.
It is not Judge Johnson's job, however, to protect the impeachment process from such articles or disclosures. Criminal contempt is an offense against the court, but the standard and evidence in the Bakaly trial seem dangerously removed from the definition of the crime. Judge Johnson has stated that she will find Mr. Bakaly guilty if the government can show that Mr. Bakaly "required the court to hold two in-chambers conferences with outside counsel for the Office of Independent Counsel and imposed unnecessary work and costs on the O.I.C."
The problem with the court's approach is multifold. First, the delay caused to the court was due more to the court's initial legal error in concluding that nonpublic, grand jury information was included in the article. Second, the "work and costs [of] the O.I.C." are not relevant to a charge of criminal contempt, which involves injuries to the court. Likewise, the use by the government of a videotaped interview with Mr. Bakaly on ABC's "Good Morning America" denying that the OIC was the source of the article is completely immaterial to the criminal contempt charge, which deals with his statements to the court. Even if Mr. Bakaly misled the OIC or the public, neither act would be criminal contempt. The court's suggestion that a criminal contempt violation could be based on injuries to such third parties would defeat any meaningful limits on the court's powers or its abuses.
This does not mean that Mr. Bakaly should not be held accountable for any failure to disclose information to the OIC. Rather, it means that he is not accountable to the court for such conduct. The OIC could and did release Mr. Bakaly from his position, reportedly due to his failure to be forthright in the OIC's internal inquiry. However, if Mr. Bakaly is to stand accused of a crime, there should first be evidence that he committed the offense. Otherwise, the rule of law is reduced to a mere contrivance.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

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