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
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
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
Id. at ¶¶ 4-5.