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Burden of Proof
Former Starr Spokesman to be Tried for Criminal ContemptAired July 7, 2000 - 12:30 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
GRETA VAN SUSTEREN, CNN ANCHOR: Today on BURDEN OF PROOF: the former spokesman for Ken Starr will be tried for criminal contempt. Charles Bakaly faces a trial in Washington next Thursday. And today, on our show, the attorney for former Whitewater partner Susan McDougal, Mark Geragos.
(BEGIN VIDEO CLIP, NOVEMBER 19, 1998)
KEN STARR, INDEPENDENT COUNSEL: I will simply say that the law of this circuit makes it quite easy for you to say: Look at the sourcing. I get to now put the burden on the prosecutor to come forward and show evidence that the prosecutor is not the source. And David, that's what we are doing.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP, FEBRUARY 1, 1999)
DAVID KENDALL, CLINTON ATTORNEY: The Office of Independent Counsel has, once again, engaged in illegal and partisan leaking as manifested by yesterday's page one story in the "New York Times" headline "Starr is Weighing Whether to Indict Sitting President."
(END VIDEO CLIP)
ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.
VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.
A year and a half after President Clinton was acquitted in the Senate, the investigation of the White House is once again making headlines. Next week, Charles Bakaly, the former spokesman for independent counsel Ken Starr, will be tried for criminal contempt. The court documents don't indicate specifically why Bakaly is being tried, but they do indicate his problems may arise out of statements he made during the investigation of leaks to the "New York Times." He faces a trial in Washington next Thursday before United States district court Judge Norma Holloway Johnson.
Along with Mark Geragos, joining us today are Annaliese Moyer (ph), attorney Chris Gordon, and criminal defense attorney Bernard Grimm. In our back row, Marcie Dishman (ph), Mary Holsenbeck (ph), and Rebekah McDonald (ph). And joining us in Washington also is CNN national correspondent Bob Franken.
Bob, first, bring us back to the beginning, who is Charles Bakaly? what was his role in the investigation of the president?
BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Charles Bakaly was brought on by Ken Starr in 1998 to try and improve the public relations that Starr was getting because they were dismal, and everybody believed that one of the problems that Starr had was that he did not know how to communicate effectively with the public. And Bakaly had had experienced with another independent counsel, had had experience in the Reagan administration, and was brought on to apply the techniques that he learned.
Of course, as we know, he ran afoul of the authorities after the "New York Times" article came out, which pointed out that the Starr people had decided not to try and indict President Clinton, at least while he was president.
Now, Norma Holloway Johnson, who is district judge -- the chief judge -- of the court, who many of us believe felt that the media were unnecessary evils had, in fact, strict restrictions against any communication with the media, the public, over the grand jury proceedings.
The Circuit Court of Appeals ultimately decided that the article did not use grand jury material.
Bakaly is the one, we are told, who has asked that this trial become public, that it not be sealed. He is the one, we are told by a variety of sources, who wants to prove he did nothing to violate rule 6(e), which is the grand jury rule. So that's where we are.
By the way, one bit of irony, I am standing right now at the Anderson Cottage, which was the Abraham Lincoln summer home, which was just dedicated by President Clinton, who is still on the grounds. He, of course, was the subject of this entire investigation, but right now we are talking about a prosecution with a peripheral player, Charles Bakaly.
VAN SUSTEREN: Mark Geragos, you represented a person in this investigation who is also charged with contempt, Susan McDougal. What is your reaction to Charles Bakaly now facing a contempt charge?
MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: Well, I've got a number of reactions, Greta. As you know, on one hand, Charles and Christy are good friends of mine, Christy and my wife are close. So, from a personal standpoint, I hate to see it. It reminds me, I mean, the Office of Independent Counsel, when we were down in Little Rock, had approached Susan Webber Wright to do the same procedure that they are now doing on Charles with Susan McDougal, which is called a Rule 41 contempt, which is to have the judge adjudicate the whole thing, and not let it go to a jury.
Susan Webber Wright, I think much to her credit, decided that she was not going to do that, told the Office of Independent Counsel, and left it up to the grand jury to do it. Here Norma Holloway Johnson has decided that she is going to hear this thing on a -- what most people would call a summary criminal contempt, which means that it is not punishable by more than six months. I think that there's a real problem here in Judge Norma Holloway Johnson even hearing this. I mean, she is the subject of, this district court judge, of an investigation right now into the way that she was assigning out cases here...
VAN SUSTEREN: Let ask a question, Mark, two questions. One is, first, is Charles is a lawyer? That is the first question. And secondly...
VAN SUSTEREN: ... OK, we got the answer to that. Secondly, is the issue -- the issue isn't whether Charles Bakaly leaked something, it is whether, when they were investigating, who might have leaked to the "New York Times," whether or not he signed a declaration that might not have been totally candid, is that the issue?
GERAGOS: That's kind of where they've placed this thing right now. He is a lawyer, by the way, he's a very able lawyer, was here in Los Angeles, was on the federal panel for a while, was also with a very topnotch law firm for a while before he went back to Washington.
The second part of your question is yes. The precise issue that they're going to decide here is whether or not the declaration that was signed, and the statements that were made after that, were in fact true. And he was basically, from what I can see here, hung out to dry by the Office of Independent Counsel.
When it became apparent that they were leaking, people like Jackie Bennett, Hickman Ewing, both -- or Hickman Ewing, who's still in the office there. The way they covered this up was to kind of excise Charles out of the picture here, hang Charles out to dry. And then after he had issued a denial of the leaks, they then said: Well, the way we're going to cover this thing up is we will now withdraw his denial and basically not stand behind what our spokesman said.
So they kind of set him up, put him out as a sacrificial lamb, if you would, on behalf of the Office of Independent Counsel. Because, quite frankly, David Kendall had put together a pretty devastating set of examples of where the Office of Independent Counsel had leaked it. It had only could have come from the prosecution, and nobody else. And they figured rather than have one of their lawyers, who was kind of in the line of fire, take the heat, they'd take their spokesperson, Charles, who is a lawyer.
VAN SUSTEREN: Let me ask Chris.
Chris, you've got sort of an unusual rule, you are a lawyer, you are a reporter, anchor, you've covered this story. Do you have the sense that Charles Bakaly is the sacrificial lamb being hung out to dry as Mark suggests?
CHRIS GORDON, ATTORNEY: Well, as a journalist and lawyer here in Washington for more than 20 years, I'm very concerned about this criminal contempt. As a reporter, I rely on sources, especially in law enforcement, especially in a prosecutor's office. I have to tell you that Charles Bakaly, and Bob Franken will back me up on this, was tight-lipped. He was almost an SOB when it came to trying to get information.
VAN SUSTEREN: He didn't return some of -- And he didn't return my calls.
GORDON: There you go. So my question is, and it follows up Mr. Geragos: If he's being indicted alone, if he all of the sudden was forthcoming to the "New York Times," was he told to leak this information? and is he being hung out as we just heard?
VAN SUSTEREN: Bernie, your reaction to it.
BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: Well, I need Chris to define the legal term SOB for me first. But, put that aside.
There's a whole separate issue. Judge Norma Holloway Johnson should not be presiding over this case. She presided over the whole grand jury proceeding. She ex parte submissions from both sides. She knows a lot more about the case than anyone. And it's her order that is being violated. And it's really a subjective determination as to whether he violated the order or not. She's in sense, a witness in this case. I really don't see how she can sit and preside fairly over this proceeding.
GERAGOS: And it's compounded, Greta, it's compounded by the fact that she herself is subject of an investigation into how she's been handling these matters. The whole thing has got an appearance of impropriety. And then you take the Office of Independent Counsel's -- the way -- the method in which they investigated Charles, which is sending two of these lawyers out to his house in the middle of the night with a couple of agents to try to interview him, so to speak; without -- and cut him off from Starr and everything else. And the whole thing is just, it's vomitous
VAN SUSTEREN: And, you know what -- and the truth is the judge who is the finder of fact, and Bob, I'll bring you in for one second, her nose is a little out joint that her orders have been potentially violated.
Bob, you wanted to get in.
FRANKEN: Well, we all found out her nose had a tendency to get way of joint quite often. It should be remembered, too, that the Circuit Court of Appeals sort of slapped her on the wrist, saying that her strict rules, in fact, were too strict, that the prosecutor has not only a right, but a responsibility to keep the public informed as much as possible as long as they don't violate rule 6(e); which puts a spin to it.
VAN SUSTEREN: Bob, except that, Bob, Bob, the rub apparently, in this investigation is whether or not there was something, not the leaks, but the underlying declaration. But we need to take a break. Up next: Defendant Charles Bakaly wants this trial open to the public. Stay with us.
(BEGIN LEGAL BRIEF)
The parents of JonBenet Ramsey are selling their Atlanta home to pay legal fees, according to their attorney.
John and Patsy Ramsey bought the home for $700,000 in 1997. They are reportedly renting an apartment in the same area.
(END LEGAL BRIEF)
VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto cnn.com/burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.
(BEGIN VIDEO CLIP)
KENDALL: Mr. Starr, in fact, there has been no case remotely similar to this in terms of the massive leaking from the prosecutor's office. And I think we...
STARR: I totally disagree with that. That's an accusation and it's an unfair accusation. I completely reject it and I would say, David, let's wait until the litigation has concluded.
(END VIDEO CLIP)
VAN SUSTEREN: Months before the "New York Times" article relating to the case against Charles Bakaly, the Clinton defense team was battling with the independent counsel over news leaks. Bakaly, the former spokesman for Ken Starr, will be tried next week for criminal contempt. Bakaly, who resigned during the investigation into leaks from Ken Starr's office, denies he was the source of the leaks.
Bob, this has been kept sort of under wraps. Now it's out in the public domain. Why has it been kept secret this long?
FRANKEN: Well, because there was a feeling that this very easily could delve into the 6-E area, which is to say into the confidential testimony before the grand jury, although one wonders why, with all the disclosures of the testimony during impeachment process, that anybody worried about that.
Bakaly has successfully argued -- and this is at Bakaly's initiative -- he wants this out in the public. He wants to make a public case that he did nothing wrong. Many people believe -- and Mark Geragos knows them; you might want to talk about this, Mark -- he probably believes, according to many people, that what he wants to do is to restore his reputation. It has been very difficult for him in these ensuing -- in the months that have passed, and one of the things might be that he wants people to believe that he did nothing wrong.
VAN SUSTEREN: Mark, step out of the role as the lawyer. Have you had conversations as a friend with Charles about this? And, you know, what's it been like for him?
GERAGOS: I have. And I've talked with him, I've talked with his family and it's been very difficult for him. It's been very difficult for Christy (ph). She's a rock for him. And the problem is -- and I think Bob's hit it exactly -- when you've got something like this hanging over your head, it's very difficult, as somebody who has made all of his career great choices as a lawyer and as a spokesman, to now have to face, to be on the receiving end. And until he gets this out in the open and he's able to clear his name -- and I think he clearly will. I don't think that there's any doubt that once the facts are revealed in this case and it comes out that he was nothing but a sacrificial lamb, I think that he'll be able to come out of this and get back on his feet. And I have all the confidence in the world in him that he'll be able to do that.
VAN SUSTEREN: Bernie, when...
GERAGOS: It's been personally very upsetting.
VAN SUSTEREN: Bernie, when Mark talks about "sacrificial lamb," the first thing I think as a defense attorney is that there may be naming names, that there may be others. As a defense lawyer, do you attempt to find out if maybe your client might know who might have been making improper leaks?
GRIMM: That's certainly part of your defense, but I think you can only get mileage out of that if you get a jury in this case and you can engender the jury to think that you were held out to dry.
VAN SUSTEREN: How about getting even, though? I mean, if you feel like you've been a sacrificial lamb, you may not win with the jury or the facts, or whatever, but what about just plain...?
GRIMM: Absolutely. Vengeance plays a big role in trials, unfortunately. The problem is, his juror is going to be Judge Johnson, who I think probably already has made a decision as to which way she is going to flow on this one.
VAN SUSTEREN: Which, of course, would be terrible. She's supposed to decide this case, hear evidence, she's not supposed to make a decision first.
GRIMM: Right, right, and I don't think she's going to come down the middle on this one. I'm not faulting her, in case I have to appear in front of her tomorrow, but that's what's going to happen.
VAN SUSTEREN: Chris, why not Judge Johnson transfer it to another judge? I mean, why should she be deciding...
GORDON: It should be because she has made a decision that there were up to two dozen leaks from the independent counsel's office. That was reversed on appeal. They found that there was no restriction on grand jury secrecy regarding this material. Now it comes back to Judge Johnson. If she finds Bakaly guilty, she could be reversed on appeal.
VAN SUSTEREN: And when you talk about leaks, you're not talking about just giving information anonymously, you're talking about giving grand jury information that's improper, is that right?
GORDON: But the appellate court found that it was not 6-E protected material that was the basis of the "New York Times" story.
VAN SUSTEREN: But that would be the only thing that would be improper about it, right?
GORDON: That would be the only thing improper about the leak unless you then lied about it. Charles Bakaly went on national TV, he said, the office is not the source of the leak, I'm not the source of the leak. Nothing wrong with that. But if you lie under oath after that, that could be the basis of a contempt, as we saw when President Clinton was found guilty of civil contempt for lying in the Paula Jones deposition.
VAN SUSTEREN: Bob, who is prosecuting this case? Is it Justice or is it the replacement for Ken Starr?
FRANKEN: Well, actually, that's a very interesting question. The answer is Justice Department. And, of course, what you have here are questions that can be raised about whether the Justice Department should get involved in something like this when the independent counsel was appointed to begin with to avoid the appearance of conflict of interest that would occur during the Justice Department. This really gets tangled, and I think we have a case of that now.
Now, one of the things that I understand is going to happen, if I can elaborate for just a second, is that there will be input that is sought from the new independent counsel, Bob Ray, who replaced Ken Starr, who is Bakaly's boss.
VAN SUSTEREN: All right, we're going to take a break. Up next, what can we expect to happen next Thursday at the United States District Court here in Washington? And if convicted, what type of sentence could Bakaly be facing? Stay with us.
Q: A St. Louis jury awarded former pro hockey player Tony Twist $24 million in a lawsuit against comic book creator Todd McFarlane. What is the name of the "Spawn" character at the center of the case?
A: "Antonio Twistelli," also known as "Twist."
VAN SUSTEREN: Next Thursday, former Starr spokesman Charles Bakaly will be tried for criminal contempt. The charges stem from answers he gave investigators during a probe of leaks from the Office of the Independent Counsel.
In trying the put this together, this case, Chris, together, the prosecutors, they make -- contemplate -- I mean they would love to, I assume, to get reporters on the stand, but reporters don't have to talk, do they, in the District of Columbia?
GORDON: For decades, reporters have relied on a shield protection, but it isn't absolute, and news organizations today are actually warning reporters: Don't guarantee to your sources absolute protection of their identity. I personally would face contempt and go to jail if I was asked to reveal a source. Now the question is, what has the "New York Times" done with regard to Charles Bakaly?
VAN SUSTEREN: Well, when you say it is not absolute, where is the line drawn?
GORDON: Well, the line is drawn as to the court's need for the information, and if it is a compelling need that overcomes your right to protect your source, you could be ordered, and reporters have been ordered, jailed. So that's the line where shield law doesn't protect you.
VAN SUSTEREN: Bernie, you know, it seems that trying cases has changed a lot, especially high-profile, you have the battle of the leaks. How does leaking hurt, I mean, when a prosecution teams leaks information, or a defense team leaks information, how does that hurt?
GRIMM: Well, it leaks information because if you are gaining momentum in the midst of your case, or right before your case starts where you get a lot of ink, and then they leak information that says, for example, that the government has two star witnesses that catch your defendant with the smoking gun standing over the body, the next day you know the jury has read it when you start jury selection. So you already started the case with one foot in the grave. It's really unfair.
VAN SUSTEREN: Mark, you had the Susan McDougal case down in Arkansas, same office, Office of Independent Counsel, did the leaks that came out of that office, I'm talking about both -- any of them potentially illegal 6(e), and those that are lawful, not violation of 6(e) -- did that affect your preparation for Susan McDougal or throughout the trial?
GERAGOS: Not really. I mean, my experience with the Office of the Independent Counsel is they were really the gang that couldn't shoot straight. So, I was -- They always did wonderful written work, but once you got them into a courtroom, I always was aghast at how incompetent they were. So I thought the more they leaked, it would just raise expectations, and they could never meet the expectations. So I never really worried about their leaking, and they were so bad at it that it was very easy to kind of pin the tail on the donkey at the same time.
VAN SUSTEREN: Bob, what is the expectation of how long this trial will last? FRANKEN: Well, it looks like it is going to be fairly quick. I mean, it is pretty -- very short set of facts, and the judge is going to rule. It could happen fairly quickly. There aren't too many people who she could call.
Now, getting back to whether reporters will be called, in fairness it must be pointed out, that although she could have called reporters during her various investigations in the grand jury leaks, she never did.
VAN SUSTEREN: Well, yes, of course, she never did, but let me go back to Mark on this. Mark, I mean, the prosecution has got to prove a case. I mean, they are the ones presenting it, and it seems like they are not going to be able to get the reporters, but they probably would love to get the reporters on the stand to be able to dig deeper into this.
GERAGOS: It is an interesting twist because most courts, when they say that there is tension between the reporter and the source, and it is usually the defendant who wants to reveal the source, where a court will say, yes, that trumps the reporter's privilege. So you might have a little twist here, where Charles actually may want to call one of the reporters and say: Who was your source on this story? And that may be one of the few times where the reporter's shield is going to not withstand or not stand up for them.
FRANKEN: And I have always felt that one of the reasons not to call a reporter is because there is nobody who whines more than a reporter does about that.
GERAGOS: Boy, you are not kidding, Bob.
VAN SUSTEREN: And I point out that I'm not a report, Bob...
FRANKEN: But I am.
VAN SUSTEREN: ... I'm a lawyer, so you are the whiner.
But Bernie, defense strategy, what would you do?
GRIMM: First off, I would file a motion for bill of particular. The charges against this man are so amorphous and unclear and obscure, he has no ability, his lawyers are not on notice of exactly what he leaked, when he leaked, who he leaked it to, in connection with Judge Johnson's specific order not to leak. So I would file a motion for bill of particulars.
The next thing I would do would be to just simply to attack the government's case, and see how they are going to able to prove that he violated this order.
His next strategy might be start to give up people.
VAN SUSTEREN: Bernie, you know what, what about a motion to the judge to disqualify herself. If her nose is out of joint, she has made it known what she's thinks about this from the very beginning, this isn't a jury, she's making the decision, shouldn't that be what you should think about.
GRIMM: I should say, first, I'm the only one on this show so far that said her nose is not out of joint because I am court every day.
VAN SUSTEREN: In front of her.
GRIMM: Yes, her nose appears straight to me, her decision seems to be out of joint. The first motion is a motion to recuse. But, in our business, we say: If you strike the king, you have to kill the king. And if you file a motion to recuse and she denies it...
VAN SUSTEREN: Then you are really cooked.
GRIMM: Then you might be in a jail cell next to your client.
VAN SUSTEREN: All right, well, that's all the time we have for today. Thanks to our guests, and thank you for watching.
Today on CNN's "TALKBACK LIVE": Harry Potter-mania ushers in a new British invasion. But some people want to ban the popular children's novels from the bookshelf. Today at 3:00 p.m. Eastern.
And join Roger and me on Monday for another edition of BURDEN OF PROOF. We'll see you then.
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