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Burden of Proof

Bakaly Accused of Misleading Judge About News Leaks

Aired July 13, 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, CO-HOST: At the United States District Courthouse, more fallout from the Clinton impeachment trial. This time, Charles Bakaly, former spokesman for office of independent counsel Ken Starr, goes on trial for contempt. That's today on BURDEN OF PROOF.

(BEGIN VIDEO CLIP)

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're doing.

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" headlined, "Starr is Weighing Whether to Indict Sitting President."

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

I'm outside the United States District Courthouse in downtown Washington, D.C. where Ken Starr former spokesman Charles Bakaly is on trial. The Justice Department alleges that he filed a declaration that was materially false and intended to mislead the court.

ROGER COSSACK, CO-HOST: Now, the case involves news leaks during the Monica Lewinsky investigation. And on January 31, 1999, the "New York Times" quoted unidentified associates who said Starr decided he had the authority to seek an indictment of Clinton before he left office. In a sworn statement, Bakaly said that he wasn't the source of the leak. Well, he later modified that statement when he told the FBI that he may have "inadvertently confirmed" some of the information in the "Times" story.

And joining us today in Washington, Corey McGee (ph), "Washington Post" reporter and author of "Truth at Any Cost" Susan Schmidt, and criminal defense attorney Bernard Grimm. And in the back, Kelly Frye (ph) and Andrew Jones (ph). VAN SUSTEREN: And joining me here outside the courthouse is CNN national correspondent Bob Franken.

Bob, take me back. What's the history that brought us to this trial today.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, we have to go back to the days of yesteryear; specifically, two years ago when we spent quite a bit of time -- Greta, Roger and I did -- outside this courthouse covering the Monica Lewinsky matter, and so frequently hearing from Charles Bakaly who had been brought on board by Ken Starr to try and navigate the treacherous press relations that were part of this very, very, very high-profile case, with the judge, the chief judge, Norma Holloway Johnson, who really discouraged any sort of public discussion of the grand jury investigation.

On January 31, 1999, after the case had left here and gone to Capitol Hill, it was in the Senate on trial as the determination was being made whether or not to remove President Clinton from office, a "New York Times" article appeared quoting "associates" of independent counsel Ken Starr saying that Starr had decided that a sitting president could be indicted for the crimes alleged in this investigation.

Of course, President Clinton has not been indicted. He's still under investigation, we're told. But Bakaly, in a subsequent investigation called by the judge, first, according to the allegations, swore under oath that he had not been the source of the information. Then later his story changed, according to the charges that are being leveled against him.

The prosecutors today from the Justice Department say that he's guilty of contempt of court because he tried to conceal material information. Bakaly's lawyer makes the argument that all he did is he changed his story, was to try and make sure that the absolute truth was told.

Now, underlying all of this is the question about whether the information was grand jury material. The judge, Judge Johnson ruled yes, an appeals court said no. That could enter into the case.

But Bakaly is on trial now, charged with contempt of court. He is -- could become, if he was convicted, the only person convicted thus far in the Lewinsky investigation. If he was, Greta, he could face up to six months in prison.

VAN SUSTEREN: And, Roger, let me take you inside the courtroom, what happened this morning. We had opening statements. This is a non-jury trial. It's Judge Norma Holloway Johnson who is the chief judge who's presiding. She's the one who believes she has been wronged. So she's both sort of the wronged person and she's the trier of fact.

But the opening statements began and they were, of course, like all opening statements, a rather compelling argument by the Justice Department as to guilt of criminal contempt. But then Michelle Roberts, who is one of Charles Bakaly's lawyers, got up and gave her opening statement, and suddenly it seems things have shifted. They have a very different version of what happened.

And what Michelle Roberts said is, look, the critical issue here is not whether Charles Bakaly's story may have changed or may have been rather fluid as he discussed it as he was being investigated as to possible leaks out of the office of independent counsel, but the critical issue is whether or not he lied in the declaration that was filed with the court. And what Michelle Roberts said -- I've known Michelle Roberts about 20 years; she's a tough defense lawyer -- is she made very plain to the judge that declaration was true when it was signed and it's true today.

And so they're willing to admit there was sort of fluid statements made by Charles Bakaly leading up to the declaration, but she says no criminal contempt because that declaration was true.

COSSACK: Greta, I think the hard part, I think, in trying to understand exactly what Bakaly is on trial for here is it's trying to figure out exactly what the crime is. Now, you just described that, you know, his lawyer said, look, whatever he may have said up until the declaration, the declaration was true then, the declaration is true now. Is that the issue? If she can prove -- if Michelle Roberts can prove that whatever he said in that declaration was true, do they win?

VAN SUSTEREN: Well, it's not exactly like that. What the prosecution did in the opening statements, they pulled out the declaration itself and they highlighted it for the judge on charts. And they went through a couple sections and they basically said, here are the misstatements. Here's where Charles Bakaly was giving misleading information. Of course, the defense says, no, that's not misleading, but the prosecution says it is. And one of the complaints that the prosecution has is that as a result of Charles Bakaly sort of dancing around the facts leading up to the declarations, he also caused a delay.

So they have three gripes about statements in the declaration, plus the delay, and that sort of summed up its sort of thumbing its nose at the court. That's the misleading aspect. That's where the judge thinks, or may think, that it's sort of contemptuous conduct. So you have very different versions of the facts.

And the way the prosecution intends to, or at least hopes, to prove its case beyond a reasonable doubt -- and it may not prove the case beyond a reasonable doubt -- but they have a lawyer on the witness stand this morning named Don Buckland (ph) who was hired by the Office of Independent Counsel, an outside counsel, to investigate where these leaks were coming from that were suddenly ending up in the "New York Times." And he was on the witness stand this morning saying that Charles -- said he'd met with Charles shortly after the "New York Times" article was -- appeared in the newspaper.

And as sort of an interesting aside, apparently, according to Don Buckland, who has not been cross-examined, but Charles Bakaly, who confirmed information in the "New York Times" article to the reporter, said maybe the outside source was a number of people. And sort of in an amusing way, he named Barbara Olson, who is married to Ted Olson who is a friend of Ken Starr. Now, that's turned out not to be true, but Charles Bakaly is basically giving Don Buckland, per Buckland, a little bit of the runaround in the early days of the investigation.

COSSACK: Greta, is that part of this case? I mean, if Buckland, the lawyer who is supposed to investigate it, speaks to Bakaly and Bakaly says, well, you know, it could be a number of people who have given this, is that part of what he's on trial for?

VAN SUSTEREN: No, you can't have contempt of lawyer. So it's not contempt of lawyer.

COSSACK: You should be able to have contempt of lawyer.

VAN SUSTEREN: Maybe you should be able to have contempt of lawyer, but it's not contempt of lawyer. What the problem is, Buckland went it, investigated the case to see where it was. He got, apparently, per Buckland -- and remember he hasn't been cross-examined -- but, per Buckland, he got a little bit of a runaround. And when Buckland filed a declaration, he gave -- before it was filed, he gave it to Charles Bakaly. Charles Bakaly edited it a little bit, and then he signing it under oath -- Charles Bakaly. It was submitted by Buckland as part of an opposition, as part of a motion that Buckland filed. And what the Justice says is that it was misleading the declaration. What the defense says is, no, it's not. It was true then, it's true now.

So that's really where the battle is going to be, is this declaration, not whether the lawyer got the runaround or contempt of lawyer.

COSSACK: All right.

All right, Bob, give me 15 quick seconds. Well, 15 quick seconds are one of the things that Michelle Roberts pointed out to the judge is there will be no direct evidence, which is to say there are no plans to call the reporter in the "New York Times" case, Don Vanetta (ph). They have managed to avoid that controversy. They're going to try and do it by bringing in lawyers and to build a case that way.

VAN SUSTEREN: And but the scary thing about that, of course, Roger, is that always we lawyers say there's no direct evidence. And of course one of the instructions -- there's no jury here -- is that sometimes circumstantial evidence can be as powerful as direct. But, indeed, they're not going to bring the reporter in.

COSSACK: You know that this case is all about, Greta? He made the ultimate mistake, Bakaly. He did -- he committed the crime of annoying the judge.

VAN SUSTEREN: Yes, or contempt of lawyer.

COSSACK: Yes, all right. Let's take a break. Up next, we'll go inside the Office of the Independent Counsel during the Lewinsky investigation. Was Ken Starr running a tight ship, or was it a leaking ship? Stay with us.

(BEGIN LEGAL BRIEF)

The New Hampshire House voted to impeach Chief Justice David Brock, accusing him of ethics violations. Brock's state senate trial is set to take place next week.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: you can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to 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, OCTOBER 22, 1998)

QUESTION: Did you ever leak information from the grand jury to the press?

CHARLES BAKALY, FMR. STARR SPOKESMAN: No ma'am.

QUESTION: Do you know of anyone in your office who did?

BAKALY: No, we do not leak grand jury material.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

BAKALY: We each took an oath of office to uphold the law and to do the right thing as to the best of our abilities.

(END VIDEO CLIP)

COSSACK: Washington was flooded with leaks during the Monica Lewinsky investigation. The Clinton defense team and the Office of Independent Counsel pointed fingers at each other. An investigation into leaks led to Charles Bakaly's resignation from Starr's office in March of 1999.

Now, Susan, you covered this for the "Washington Post" and eventually co-authored a book. Talk to me about the culture of leaks that was going on at that time, both in the independent counsel's office and from the White House.

SUSAN SCHMIDT, CO-AUTHOR, "TRUTH AT ANY COST": Well, what people may not realize is that everybody that appeared before that grand jury, every witness, had a lawyer, and all those lawyers were free to talk about what went on before the grand jury, all those witnesses were free to talk about it, and they did. And lawyers talked to each other, and so there was a tremendous swirl of information that reporters had access to. In addition, Starr did want his office to convey to the press certain information. For example, why did he still have jurisdiction to investigate the president after the Jones case got thrown out? He wanted his office to convey that. What was the grounds for fighting the president on Secret Service privilege? sort of the legal basis for what he was doing.

COSSACK: But were those leaks or were those press releases?

SCHMIDT: Neither, that was sort of informing the press. They weren't leaks, and they weren't press releases. It was sort of what the press does, it interviews people, it gets information, it frames stories, that's what the media does.

COSSACK: Greta, go ahead.

VAN SUSTEREN: Bernie, you know, the problem I have with what Susan and Bob and their trade is journalism, gaining information, that's their job. But I have got to tell you there is something that bothers me a little bit about prosecutors who are attempting to manipulate or leak or educate or whatever they are doing, doing it anonymously, what about that.

FRANKEN: Well, first of all, you are assuming that it was the prosecutors who were doing the leaking.

VAN SUSTEREN: Well, Charles Bakaly, I mean, you know, Charles Bakaly has admitted, according to his lawyers today, Bob, that he did provide information anonymously, not by name.

FRANKEN: But the information, according to the appeals court, was information that could quite possibly have been appropriate to put out there.

VAN SUSTEREN: So why don't you just put your name on it. Bernie, what about the fact that prosecutors will tell information, it may be proper, it may not be 6(e), which would be improper, but then, they don't say: This is from me.

BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: There is nothing wrong with that. In fact, I think it is actually done a lot more than we actually know it to be, but the problem is is when leaks occur, it pollutes the whole truth-finding process, it pollutes the whole public perception of what is actually going on because the defendant doesn't get to put his leaks out there.

VAN SUSTEREN: Susan, educate me for a second, the reporter for the "New York Times" will not be testifying. He don't have to, does he, in the District of Columbia?

SCHMIDT: No, he doesn't, and I'm sure the prosecution wouldn't even attempt to bring him on. That would be -- they would lose and it would be damaging to their case.

VAN SUSTEREN: Bob, what protection... COSSACK: Susan, I want to ask you this: Was there a competing culture, if you will, of leaks that went on between the White House and the independent counsel during your covering of this for the newspaper? And gosh knows, I'm not asking you to name names or anything like that, but as a reporter who covered this, it's...

SCHMIDT: I think leaks, the word "leaks" is something of a misnomer. Every side in this story tried the get their point of view across. And so, when somebody from Starr's office explains their rational for pursuing Larry Coceal (ph) and trying to get him before the grand jury, is that a leak? or is that an explanation?

When the White House -- people from the White House were talking anonymously too. When they explained why they were so vehemently against that, is that a leak? I don't think it is.

I think part of the reason people didn't want to be named in all of this was a tremendous fear of Judge Johnson. She took a draconian point of view about sealing everything, putting everything behind close doors, and she viewed virtually everything as a leak of grand jury information. She was rebuked very strongly twice now by the court of appeals. The first time the court of appeals mandamused her, which almost never happens.

FRANKEN: Well, let's not forget also that this is not only just a legal battle. In fact, it was even more intense as a public relations battle, and the president's lawyers had the advantage because they were not constrained by prohibitions against revealing grand jury secrecy.

The independent counsel had a much tougher fight. The president had the advantage. And, as a result, ultimately he prevailed, he was not removed from office in that very public fight in the Congress.

VAN SUSTEREN: Speaking of removal, we are going to take a break. And should Judge Norma Holloway Johnson have removed herself from this case because she's the wrong party and she is also the trier of fact? Stay with us.

(BEGIN Q&A)

Q: Why has a Florida youth baseball coach been charged with aggravated battery?

A: Police say Orlando Lago punched an umpire during an argument over a call.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

Judge Norma Holloway Johnson is the aggrieved party in this contempt trial and she's also the one who will decide whether or not Charles Bakaly is guilty beyond a reasonable doubt. Bernie, let me give you one of my favorite journalists' phrase which is, sources say, a motion to disqualify the trial court judge was filed but it apparently was withdrawn.

Why do you think defense lawyers would withdraw a disqualification motion, and should this judge sit on this case?

GRIMM: Judges are judges because they are believed to be neutral, fair, they will call hard cases right down the middle.

VAN SUSTEREN: Now the truth, Bernie.

GRIMM: Pardon me.

VAN SUSTEREN: Now the truth.

GRIMM: Now the truth, OK. In this case, and in any case, when you file a motion to recuse a judge or ask a judge to get off the case because they have a personal bias one way or another, those motions are routinely denied. So how would you like to be Bakaly, your lawyer files a motion and tells Judge Johnson: We think you're unfair, get off the case, and she says: No, your motion's denied, now I'm fair.

VAN SUSTEREN: But they've already filed it, so at least she knows what their thoughts were. They may have withdrawn the motion but that certainly is a message that the defense lawyers had some question about her.

GRIMM: My sources tell me that the motion was filed by Bakaly's prior lawyers, not Michelle Roberts or Gary Coleman, who filed the motion to withdraw the motion to recuse.

VAN SUSTEREN: And my source here, Bob Franken, may confirm this.

FRANKEN: Might I point out that as these attorneys quote sources, you're relying on leaks, by the way, the ones that you usually have such a hard time with. We should also point out that there seems to be an effort on the part of Charles Bakaly to try and make a public case. He was the one who asked for this case to be public and he's trying to whip up public sentiment. Everybody would claim that the federal judges are above that, that they operate in their ivory tower. But experience shows that oftentimes they're quite swayed by what the public feels about something.

COSSACK: Susan, again, you followed this case, Judge Johnson actually, as you pointed out earlier, had a rather tyrannical, if you will, attitude toward the press, and toward leaks in this case. I mean, didn't she -- hasn't she shown herself throughout this case to be almost obsessed with the idea of leaking.

SCHMIDT: Yes, you know, Starr's office was prohibited from even releasing her orders during the case. She would make a finding and she would say that's under seal, you can't tell the press about it. And so this was, it was very unusual.

One of her most unusual acts was to tell David Kendall, the president's lawyer, that he could interrogate and grill Starr and his prosecutors, in the middle of the Lewinsky investigation, about what they told reporters. She was so angry at Steven Brill's article in his new magazine about press leaks that she was going to let the target of the investigation grill the investigator. The court of appeals stepped in at the eleventh hour, just hours before those interrogations were to take place and blocked her. And she, you know, she had to have been very angry about that. She was, in essence, humiliated by Starr's maneuver to the court of appeals.

And then once again, last September, when the court of appeals just knocked her down and said she was wrong about her interpretation of grand jury secrecy laws.

COSSACK: Greta, it seems to me that Judge Johnson is almost obsessed with these kinds of things and it would lead me back to what we just talked about, the notion of her still being on this case. I understand...

VAN SUSTEREN: Roger, let me imitate Bernie Grimm. I have only so many months left on my contract, I may be practicing with Bernie Grimm again in this United States District Court, so I will duck that question. You're asking me Judge Norma Holloway Johnson.

FRANKEN: But allow me.

VAN SUSTEREN: But let me toss one out to Bernie. Bernie, are you intrigued by the fact that the president of the United States, when he testified on January 17, on the Paula Jones case, was not charged with perjury, but was charged with misleading the court, he was then facing Judge Susan Webber Wright who found him in contempt. And now he has got a bar proceeding. We have almost a mirror image here. Charles Bakaly accused of misleading some investigators, he's got a contempt trial before a judge, and he could face bar issues.

GRIMM: They're actually identical because -- the analog is appropriate because if Bakaly gets convicted he is also going to lose his bar license as well.

COSSACK: Greta, I can't let you off the hook this easily. I have to come back to you, in terms of withdrawing that motion, it just seems to me that, while I agree that most of the time you never win that motion to get the judge off the case, isn't it giving up a huge appellate issue on -- by her previous actions, by not filing this motion.

VAN SUSTEREN: You know, I don't understand why she didn't herself, remove herself from the case. You know, Roger, as though, if I were going to sue you for something, you show up in court, and not only am I suing you, but suddenly I'm the one deciding who gets to win.

COSSACK: Right.

VAN SUSTEREN: I mean, this happens routinely in contempt cases, and when it's contempt of court. But this is an unusual case, and there are dozens of federal judges in this courthouse behind me. And it probably would have been a lot easier and cleaner to avoid having BURDEN OF PROOF have this big long discussion about whether a judge can be fair or not.

It seems to me what the wiser thing would have been is to send it down the hall to another judge, have another judge examine it.

COSSACK: Well, that's all the time we have today. Thanks to our viewers and thanks for joining us. Today on CNN's "TALKBACK LIVE," the Philadelphia chase that was caught on tape: was it proper police procedure or was it police brutality? that's at 3:00 p.m. Eastern time.

VAN SUSTEREN: And join me tonight on "NEWSSTAND" at 10:00 p.m. Eastern, I'll be taking e-mails and calls about this controversial arrest in Philadelphia. And we'll see you tomorrow on BURDEN OF PROOF.

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