Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

IN RE GRAND JURY PROCEEDINGS

October 6, 2000

IN RE GRAND JURY PROCEEDINGS.


The opinion of the court was delivered by: Norma Holloway Johnson, Chief Judge.

MEMORANDUM OPINION

On July 13 through July 18, 2000, the Court, sitting without a jury, presided over the trial of criminal contempt charges lodged against Charles G. Bakaly, III. These charges stem from the filing of an allegedly false sworn declaration in connection with the February 1, 1999, motion of President William Jefferson Clinton and the White House for an order to show cause why the Office of the Independent Counsel ("OIC") should not be held in contempt for violating Federal Rule of Criminal Procedure 6(e). Based on evidence in the record, the Court finds that the following facts have been proved beyond a reasonable doubt. When the relevant law is applied to those facts, the Court concludes that the Government has not proved its charges beyond a reasonable doubt and, therefore, the Court finds that Mr. Bakaly is not guilty of criminal contempt.

I. BACKGROUND*fn1

1. On February 1, 1999, President Clinton and the White House (collectively "movants") filed a motion for an order to show cause why the OIC, or individuals therein, should not be held in contempt for violations of Rule 6(e). In their motion, movants alleged that a member or members of the OIC violated Rule 6(e) by disclosing grand jury materials which were published in a January 31, 1999, article in the New York Times, written by Don Van Natta Jr., entitled "Starr is Weighing Whether to Indict Sitting President." Movants claimed that the Times article revealed secret grand jury materials regarding "a critical aspect of the strategy of the investigation of the President, the potential timing of an indictment, and the specific allegations that are likely to be contained in an indictment." Memorandum in Support of Motion for Order to Show Cause at 3.

2. Specifically, movants cited the following excerpts from the January 31, 1999, Times article:

• "The independent counsel, Kenneth W. Starr, has concluded that he has the constitutional authority to seek a grand jury indictment of President Clinton before he leaves the White House in January 2001, several associates of Mr. Starr said this week."
• "While the President's legal team has fought in the Senate chamber for the President's political survival, Mr. Starr and his prosecutors have actively considered whether to ask a Federal grand jury here to indict Mr. Clinton before his term expires, said Mr. Starr's associates, who spoke on condition of anonymity."
• "Inside the Independent Counsel's Office, a group of prosecutors believes that not long after the Senate trial concludes, Mr. Starr should ask the grand jury of 23 men and women hearing the case against Mr. Clinton to indict him on charges of perjury and obstruction of justice, the associates said. The group wants to charge Mr. Clinton with lying under oath in his Jones deposition in January 1998 and in his grand jury testimony in August, the associates added."
• "Since early last year, the constitutional question has been exhaustively researched by two constitutional law experts who are paid consultants to Mr. Starr: Ronald D. Rotunda of the University of Illinois Law School and William Kelley of the University of Notre Dame. Both Mr. Rotunda and Mr. Kelley have concluded that the 1997 Supreme Court decision in the Paula Jones case suggests that the Constitution does not prohibit a prosecutor from seeking an indictment, trial and conviction of a sitting President, the associates said."

3. According to movants, "[t]hese are all matters that fall squarely within the protective bounds of Rule 6(e) and should have never been disclosed publicly." Id. at 3. Based on these excerpts, movants claimed that a prima facie showing of a Rule 6(e) violation had been made because the Times article "(1) disclose[d] `matters occurring before the grand jury' and (2) suggest[ed] that the sources of the information include government attorneys or their agents." Id. at 2 (citing Barry v. United States, 865 F.2d 1317, 1325 (D.C.Cir. 1989)).

4. On the same day that the motion of the President and the White House for an order to show cause was filed, Donald Bucklin, an attorney representing the OIC, sent a hand-delivered, ex parte letter to the Court. In his letter, Mr. Bucklin informed the Court of "deep concern" within the OIC regarding the Times article which "purports to report highly sensitive and confidential internal OIC information." Letter of February 1, 1999, from Donald Bucklin to the Honorable Norma Holloway Johnson at 1. While this letter did not address the Rule 6(e) allegations raised by the President and the White House, Mr. Bucklin apprised the Court that "[t]he disclosures in the article were unauthorized and a violation of OIC press policy." Id.

5. This letter further informed the Court that a thorough internal investigation was being undertaken in order "to determine whether anyone in the OIC was in any way the source of the New York Times article." Id. Toward that end, the assistance of the Federal Bureau of Investigation ("FBI") was being solicited. Id. Mr. Bucklin further stated that while the author of the Times article had advised the OIC that "his attribution to Independent Counsel Starr's `associates' referred to individuals outside the OIC," the OIC was nonetheless determined to conduct a thorough internal investigation and had already directed any member of the OIC "with information on the article's source to bring it to Independent Counsel Starr's attention immediately." Id. at 1-2 (emphasis in original).

6. On February 9, 1999, the OIC filed its opposition to the motion for an order to show cause in which it made two separate arguments: (1) that the Times article did not disclose `matters occurring before the grand jury' and (2) even if it did, the article does not attribute its disclosures to the OIC. Opposition to the Motion for Order to Show Cause at 2-3 (citing Barry v. United States, 865 F.2d 1317, 1321 (D.C.Cir. 1989)). By rebutting each prong of the Barry test, the OIC's arguments were intended to demonstrate that no prima facie violation of Rule 6(e) had taken place. The OIC asserted that "[i]f Movants fail to establish either prong, their motion must fall." Opposition at 3.

7. As its primary argument, the OIC asserted that the first prong of the Barry test was not met. The OIC claimed that the confidential and sensitive disclosures made in the article did not contain grand jury material because "the article does not disclose any action taken or contemplated by the grand jury. . . . Rather, the article merely discusses options available to the OIC and the purported views of a nebulous group of OIC prosecutors." Id. at 2 (emphasis in original). Mr. Bakaly's allegedly false statements did not relate to this first prong of the Barry test.

8. In addressing the second prong of the Barry test, the OIC argued that "because the article does not attribute its disclosure to the OIC, Movants cannot establish a prima facie case." Id. In support of its second argument, the OIC told the Court that "the term `associates' [of Independent Counsel Starr] does not necessarily suggest that the sources [of the Times article] were within the OIC. That attribution, as well as the nature of the information disclosed, must be read in connection with the author's representation to OIC spokesman Charles G. Bakaly, III, that his sources were in fact outside the OIC." Id. (citing Declaration of Charles G. Bakaly, III, attached to the OIC's Opposition at Tab A) (emphasis in original). The OIC's argument on the second prong of the Barry test and the sworn declaration of Mr. Bakaly in support of that argument are central to these contempt proceedings.

9. Mr. Bakaly submitted a sworn declaration to support the OIC's response to the motion to show cause. In order to prepare the declaration for submission to the Court, Mr. Bakaly spoke with Donald Bucklin or his associate, Andrew Cohen, on several occasions between February 3 and February 9, 1999. During that period, Mr. Bakaly reviewed and made changes to at least three drafts of the declaration. On February 9, 1999, the Bakaly declaration was signed, sworn under the penalty of perjury pursuant to the provisions of 28 U.S.C. § 1746, and filed with the Court in support of the OIC's opposition to the motion for an order to show cause.

10. In this declaration, Mr. Bakaly tells the Court that he has served as Counselor to Independent Counsel Starr since April 13, 1998, and his responsibilities in that capacity include "addressing strategic and public policy issues, and communication of the work of the Office of the Independent Counsel ("OIC") to the general public." Bakaly Declaration at ¶ 1. He states that he also served as "the OIC's spokesman and contact person with the news media." Id.

11. The declaration of Mr. Bakaly then informs the Court that "[d]uring the past several weeks, I have had at least four conversations with Don Van Natta Jr. of the New York Times concerning an article he was preparing on various issues that would remain after the conclusion of the Senate impeachment trial." Id. at ¶ 3. Mr. Bakaly states that he first spoke with Mr. Van Natta as early as January 11, 1999, at which time:

Mr. Van Natta explained that he wanted to . . . report on various alternatives available to the OIC and to attempt to juxtapose the ongoing Senate proceedings with the OIC's work. I did not provide Mr. Van Natta with any information about OIC intentions, but noted only that several other reporters had already written on the subject or were working on similar stories.

Id. at ¶¶ 4-5.

12. Mr. Bakaly states in his declaration that he next recalls speaking with Mr. Van Natta on or about January 21, 1999. During this conversation, Mr. Bakaly tells the Court that he and Mr. Van Natta discussed a recent New York Times article written by Mr. Van Natta's colleague, Jill Abramson. Id. at ¶ 6. Ms. Abramson's article concerned a possible trial of the President and others following the Senate impeachment proceeding. Id. With regard to Ms. Abramson's article, Mr. Bakaly declares that "[c]onsistent with the position I took with Mr. Van Natta, I declined to discuss non-public matters with Ms. Abramson, and her article states: `Charles C. Bakaly 3d, a spokesman for the Independent Counsel's Office, would not comment on any indictment speculation . . . .'" Id.

13. Mr. Bakaly continues by stating:

[Mr. Van Natta] told me that he had learned that Judge Starr had recently been convinced that he could indict the President while in office, and that a group within the OIC believed the President should be indicted. Mr. Van Natta told me that he had learned this information from sources outside the OIC. . . . I refused to confirm or comment on what Judge Starr or the OIC was thinking or doing. I agreed to provide an on-the-record quote, which appeared in Mr. Van Natta's article: "We will not discuss the plans of this office or the plans of the grand jury in any way, shape or form."

Id. at ¶¶ 7-8 (emphasis in original).

14. Finally, Mr. Bakaly refers to one further conversation with Mr. Van Natta, on either January 28 or January 30, 1999. During the course of this conversation, Mr. Bakaly states that:

it became apparent that [Mr. Van Natta] was going to proceed with the article. I expressed my concerns over how he intended to source the information that he described to me as coming from outside the OIC. I feared that information about the purported views of Judge Starr and some group within the OIC would be perceived as originating from within in [sic] the Office. Mr. Van Natta again assured me that his sources were outside the OIC, that he was "working on his sourcing," and that he intended to make it clear in his article that his sources were not within the OIC.

Id. at ¶ 11 (emphasis in original).

15. Throughout the month of February 1999, the OIC's internal investigation of the source of the Times article proceeded with the assistance of the FBI. Between February 1 and February 26, 1999, Mr. Bakaly met with various OIC attorneys, outside counsel for the OIC, and FBI agents on several occasions to discuss his conversations with Mr. Van Natta. On February 26, 1999, Mr. Bucklin was informed by FBI officials that Mr. Bakaly had made certain statements and admissions that appeared inconsistent with the Bakaly declaration and oral statements previously made to Mr. Bucklin.

16. Informed of the FBI's concern that certain statements in the Bakaly declaration may be false, Mr. Bucklin and OIC attorney Jackie Bennett met with the Court in chambers and stated that certain arguments in the OIC's opposition brief and statements in the Bakaly declaration would possibly need to be withdrawn. "Mr. Bucklin therefore asked the Court not to rule on [the pending Motion for an Order to Show Cause filed by President Clinton and the White House] until hearing further from the OIC." Stipulation at 1 (Government Ex. 19). On March 1, 1999, Mr. Bucklin and Mr. Bennett informed the Court that the investigation to determine whether certain statements in the Bakaly declaration were false was proceeding. Mr. Bucklin told the Court that another submission from the OIC would be forthcoming, however, some additional time was still needed. Id.

17. On March 8, 1999, the OIC filed a pleading captioned "Amendment to the Opposition of the OIC to the Motion for Order to Show Cause and Withdrawal of Argument and Supporting Declaration." In its amendment, the OIC notes that it had presented two arguments in its opposition: 1) that the New York Times article did not disclose matters occurring before the grand jury in violation of Rule 6(e)(2) and 2) that the OIC was not the source of the disclosures complained of by movants. Amendment to the Opposition of the OIC at 1. The OIC previously relied upon the Bakaly declaration and representations purportedly made to Mr. Bakaly by Mr. Van Natta to support its second argument. Id. In withdrawing its reliance on the Bakaly declaration, the OIC states that:

[r]ecently, the FBI informed undersigned counsel that Mr. Bakaly had acknowledged to its investigators that he provided Mr. Van Natta some of the information reported in the New York Times article or confirmed the accuracy of information that Mr. Van Natta already possessed and attributed to sources outside the OIC. The investigation is continuing and the OIC has referred the matter to the Department of Justice. . . . Accordingly, the OIC withdraws and abandons that portion of its opposition that argues it is not the source of the disclosures in the New York Times article, along with the supporting declaration.

Id. at 1-2. Nonetheless, the OIC continued to maintain that the Times article did not disclose any matters occurring before the grand jury and, therefore, no prima facie violation of Rule 6(e) should be found. Id. at 2.

18. On March 25, 1999, the Court entered an Order to Show Cause, finding that one passage of the Times article disclosed matters occurring before the grand jury in violation of Rule 6(e). Specifically, the Court held that the following paragraph contained grand jury material:

"Inside the Independent Counsel's Office, a group of prosecutors believes that not long after the Senate trial concludes, Mr. Starr should ask the grand jury of 23 men and women hearing the case against Mr. Clinton to indict him on charges of perjury and obstruction of justice, the associates said. The group wants to charge Mr. Clinton with lying under oath in his Jones deposition in January 1998 and in his grand jury testimony in August, the associates added."

Order to Show Cause at 5-6 (quoting the Times article). It was the Court's belief that this passage could be considered a disclosure "`discussing the scope, focus and direction of the grand jury investigation.'" Id. at 6 (quoting Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir. 1981)). Therefore, because the OIC had now abandoned its argument that it was not the source of the disclosure, the Court found that, under the Barry test, an order to show cause must issue to the OIC and Mr. Bakaly directing them to demonstrate that they had not violated Rule 6(e).

19. In addition to the prima facie violation of Rule 6(e), the Court also ordered Mr. Bakaly to show cause why he should not be held in contempt for filing a false or materially misleading affidavit with the Court. Id. at 3. In directing Mr. Bakaly to address this allegation, the Court noted that:

Mr. Bakaly swore to this Court, under penalty of perjury, that he did not provide Mr. Van Natta with any information regarding the OIC's confidential deliberations or the OIC's intentions with respect to indicting the President. [Bakaly Declaration] at ¶¶ 5-6, 8 & 9. Furthermore, Mr. Bakaly stated that Mr. Van Natta had told him that all the information for the story regarding the indictment of the President came from sources outside the OIC. Id. at ¶¶ 7 & 11.

Order to Show Cause at 2.

20. The Court found that it was presented with formal allegations from the FBI that Mr. Bakaly had provided Mr. Van Natta "`some of the information reported in the New York Times article or confirmed the accuracy of information that Mr. Van Natta already possessed and attributed to sources outside the OIC.'" Id. at 3 (quoting the Amendment to the Opposition of the OIC at 1-2). In expressing its grave concern over the allegation that Mr. Bakaly had filed a false declaration, the Court stated that:

[a]s an attorney and an officer of the Court, Mr. Bakaly has a duty of candor which requires that he not make false representations to the Court. He also bears an obligation of fairness to opposing parties and counsel that includes a duty not to falsify testimony in an effort to mislead or obstruct justice. Furthermore, as a federal prosecutor, he bears an even greater obligation to see that justice is done.

Id.

21. The Court charged "Mr. Bakaly to appear at a hearing to address the serious allegation that he filed a materially false declaration intended to mislead this Court and to show cause why he should not be held in contempt for his conduct." Id. The hearing was set for April 28, 1999, and the OIC and the FBI were ordered to produce all relevant investigative reports in camera. The Court stated that the contempt proceeding against Mr. Bakaly would be civil in nature, but reserved "the right to refer this matter to the appropriate prosecutorial authorities if a criminal contempt proceeding is warranted." Id. at 3 n. 2.

22. On April 26, 1999, upon application of the Department of Justice ("DOJ"), the Court stayed the civil contempt proceeding against Mr. Bakaly and the OIC for sixty days pending the resolution of DOJ's parallel criminal investigation into the same or closely related conduct. The Court made clear that the stay would be only of short duration and, in order to monitor the stay, the Court required that DOJ file in camera status reports informing the Court of the progress of its criminal investigation. Upon further application of DOJ, the Court extended its stay to July 15, 1999, and required DOJ to file an additional status report.

23. By letter dated July 13, 1999, DOJ informed the Court that it would not seek an extension of the stay of contempt proceeding in this matter. DOJ further informed the Court of its view that "after reviewing evidence gathered in the course of its criminal investigation, that the alleged misconduct committed by Mr. Bakaly can best be addressed and remedied through the contempt proceedings already initiated by the Court and, upon conclusion of that action, by referral to the District of Columbia Bar." Letter of July 13, 1999, from Michael Horowitz, Deputy Assistant Attorney General, to the Honorable Norma Holloway Johnson at 1. DOJ further suggested that "in light of the nature of the allegations against Mr. Bakaly and the sanctions that would likely be imposed upon him if he were found guilty by the Court, that Mr. Bakaly should be provided with the procedural protections of the criminal law . . . and the contempt proceedings therefore should be considered criminal rather than civil in nature." Id. In addition, DOJ advised the Court that a jury trial was not required because, should Mr. Bakaly be found guilty, DOJ would not recommend a term of imprisonment in excess of six months. Id. (citing Cheff v. Schnackenberg, 384 U.S. 373, 378, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966)). Finally, DOJ stated its willingness to accept an appointment to prosecute criminal contempt charges against Mr. Bakaly, if the Court chose to pursue that course of action. Id. at 2.

25. The Court adopted DOJ's recommendations for proceeding with criminal contempt charges against Mr. Bakaly in an Order entered on July 14, 1999, and appointed DOJ to prosecute the charges. While DOJ's recommendation only pertained to the charges against Mr. Bakaly for allegedly filing a false declaration, the Court noted that it still needed to resolve its findings of a prima facie violation of Rule 6(e) by Mr. Bakaly and/or other members of the OIC. Order of July 14, 1999, at 2 n. 2. In order to resolve these related matters through a single contempt proceeding, the Court directed DOJ to proceed with criminal contempt charges against both Mr. Bakaly and the OIC and lifted its stay of the matter. Id. at 2.

26. The OIC appealed and sought summary reversal of the Court's order subjecting it to criminal contempt charges for violating Rule 6(e).

27. On September 7, 1999, the Court of Appeals reversed this Court's finding of a prima facie violation of Rule 6(e). See In re Sealed Case, 192 F.3d 995 (D.C.Cir. 1999). Specifically, the Court of Appeals held that the disclosures regarding the scope, focus, and direction of the grand jury investigation did not constitute matters occurring before the grand jury. Id. at 1001. In addressing this Court's finding of a prima facie violation, the Court of Appeals noted that:

[i]t may be thought that when such [internal deliberations of prosecutors] include a discussion of whether an indictment should be sought, or whether a particular individual is potentially criminally liable, the deliberations have crossed into the realm of Rule 6(e) material. This ignores, however, the requirement that the matter occur before the grand jury. When reported deliberations do not reveal that an indictment has been sought or will be sought, ordinarily they will not reveal anything definite enough to come within the scope of Rule 6(e). . . . The general uncertainty as to whether an indictment would be sought (according to the article, only some prosecutors in OIC thought one should be) leads us to conclude that this portion of the article did not reveal anything that was "occurring before the grand jury."

Id. at 1003-04. Thus, because the Court of Appeals found that the passage in question only revealed the internal deliberations of the OIC and not any information that actually had been put before the grand jury, the disclosure did not violate Rule 6(e) and the contempt proceeding against the OIC was dismissed.

28. On November 29, 1999, DOJ filed its Notice of Essential Facts Constituting Criminal Contempt or Rule 42(b) Notice. The DOJ filed an Amended Rule 42(b) Notice on June 23, 2000.

29. The Amended Rule 42(b) Notice contains introductory allegations setting forth the background of this proceeding and a statutory charge, pursuant to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.