Whatever he now feels about his former role as spokesman for the Office of Independent Counsel, Charles Bakaly III surely has fresh appreciation of what it means to undertake a “thankless task.” Having entered the O.I.C.’s service in 1998 to improve the dismal image of Kenneth W. Starr and his prosecutors, poor Mr. Bakaly now faces the business end of a federal indictment for lying about leaking.
Worse yet, Mr. Bakaly was referred to the Justice Department for prosecution by Mr. Starr himself, almost as if sacrificing his flack would absolve the prosecutor and his other deputies of doing a lot of leaking themselves. But if Mr. Bakaly is forced to testify on his own behalf when his public trial takes place this week in Washington, he may yet reveal who really leaked and lied.
That is an extremely touchy topic not only for the O.I.C., but also for the national media that so hungrily sought and eagerly repeated leaked material, much of it false or dubious, from Mr. Starr and his operatives.
Although the O.I.C. has been plausibly accused of numerous inappropriate and perhaps illegal leaks before, during and after the Monica Lewinsky investigation, the occasion for Mr. Bakaly’s problem was a single article in The New York Times by Don Van Natta Jr., which appeared on Jan. 31, 1999.
The front-page story revealed that Mr. Starr was considering the constitutional question of whether to seek a grand jury indictment of the President, in addition to the impeachment referral that had accompanied the Starr Report to Congress several months earlier. Coming in the midst of the Senate’s impeachment proceedings, the leak to The Times was yet another example of the politicized conduct that had ultimately forced the resignation of Mr. Starr’s ethics counselor, Sam Dash.
Responding to an outraged complaint from Clinton attorney David Kendall, Mr. Starr accused the White House of seeking to “distract” his investigation with false accusations of leaking-but he also ordered an internal probe of how Mr. Van Natta got his story. Several weeks later, Mr. Bakaly was forced to resign and the O.I.C. referred the matter for possible further action by the Justice Department.
Eventually, the U.S. District Court of Appeals in Washington ruled that this leak didn’t violate grand jury secrecy rules. But nevertheless, based on information from Mr. Bakaly’s former colleagues, the Justice Department determined that he had lied about the incident in a sworn declaration. So rather ironically, the former Starr spokesman is accused of a “coverup,” despite a judicial finding that there was no underlying crime.
According to Mr. Bakaly, the guilt lies with attorneys for the O.I.C. In pretrial briefs submitted the other day, he alleged that O.I.C. lawyers had altered his sworn statements and omitted relevant information because they didn’t want to provide ammunition to Mr. Kendall, who had already instigated a wide-ranging investigation by the court of leaks concerning the Lewinsky case.
What Mr. Bakaly reportedly also acknowledged, however, is that he did divulge information, including internal documents, to Mr. Van Natta. That admission raises vexing issues for the newspaper of record, as Michael Kinsley pointed out in Slate , because The Times appears to have knowingly published a blatant falsehood. After alluding to sources in the O.I.C., Mr. Van Natta wrote that “Charles G. Bakaly 3d, the spokesman for Mr. Starr, declined to discuss the matter. ‘We will not discuss the plans of this office or the plans of the grand jury in any way, shape or form,’ he said.”
The Times continued this charade in an indignant July 8 editorial that denounced the Bakaly prosecution as an “after-the-fact witch hunt.” Rather weirdly, that editorial also mentions that “Mr. Bakaly … said at the time and has since maintained that he was not a source of the [Jan. 31, 1999] article.” But now we all know that is untrue-unless, perhaps, it depends on what the meaning of “source” is.
As The Times points out, anti-leaking investigations are usually intended to conceal important information from the public. The paper did nothing wrong by publishing the facts in Mr. Van Natta’s story. Full culpability for a politically timed and unethical disclosure lies with the O.I.C.-and, according to The Times ‘ own account, not with poor Charlie Bakaly alone.
But there are broader issues here for journalists as well as prosecutors. Should a newspaper publish grand jury leaks, knowing that the prosecutor who divulged them has committed a crime and violated the rights of the defendant? And does the obligation to protect an official source include the publication of statements that reporters and editors may know to be false?
Important facts about the conduct of the O.I.C. have long been concealed from the public, and the press-for both good reasons and bad-has been part of that coverup.