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The courtroom action has ended in the unusual contempt trial of former Kenneth Starr spokesman Charles Bakaly III. But the drama is far from over. Bakaly is charged with lying to Chief U.S. District Judge Norma Holloway Johnson about whether he was a source for a detailed January 1999 New York Times article concerning deliberations in the Office of Independent Counsel (OIC) about whether President Bill Clinton could be indicted while in office. Bakaly has denied wrongdoing. While the very first prosecution witness — Donald Bucklin of Squire, Sanders & Dempsey — disclosed the names of four notable lawyers who Bakaly suggested could be the newspaper’s sources, none of the four testified at trial and all denied in interviews last week that they were the source. Bucklin represented Starr’s office in the FBI’s leak probe, which began after President Clinton’s lawyers complained to the court that grand jury material had been disclosed to the press by the OIC. On the stand, Bucklin described a conversation he had with Bakaly just as the leak investigation began. “Mr. Bakaly assured me that he was not the [Starr] ‘associate’ ” who was quoted by reporter Don Van Natta Jr., Bucklin said. The men then speculated about four other people who they thought might have been Van Natta’s source. The four were former OIC lawyer Bruce Udolf; Gibson, Dunn & Crutcher partner and Republican activist Theodore Olson; Olson’s wife, the lawyer and conservative commentator Barbara Olson; and Ronald Rotunda, a professor at the University of Illinois College of Law. Rotunda, now on a six-month leave from teaching to work at the Cato Institute in the District, was a Starr consultant when Van Natta wrote his article. Rotunda acknowledges that he spoke with the reporter on one occasion, several weeks before the story broke, and “told him some stuff that was in the public record. I couldn’t discuss who we would or wouldn’t indict.” Rotunda, who wrote in a 1997 Legal Times article that the Constitution does not bar the indictment of a sitting president, adds that he did discuss with Van Natta the alternatives that any prosecutor would face in deciding whether to recommend such an indictment. “But anyone could figure out what the alternatives were. You could do the legal research and find out. You could open the U.S. Attorneys’ Manual,” Rotunda says. Udolf, now a partner at the Fort Lauderdale, Fla., office of Pittsburgh’s Eckert Seamans Cherin & Mellott, points out that he left the OIC in April 1998, nine months before the article came out. “I didn’t know about the nature of the OIC’s deliberations until I read it in the paper,” he says. Udolf says that he knows Van Natta from when they both worked in Florida — The New York Times reporter used to work for The Miami Herald — but adds that he was not a source. Theodore Olson says that although he and his wife are close social friends of Starr’s, they have never discussed anything confidential with him. “I categorically deny that we talked to Van Natta or to any other reporter about this or any other confidential aspect of this investigation,” Olson says. “In fact, when we saw that article in the paper, I said to Barbara, ‘It really sounds as if someone in his office was talking. Why would they be doing that?’ ” Van Natta declines comment. Both sides have until Aug. 11 to file findings of fact with Johnson. After that, the judge will issue her ruling. BEYOND JAIL TIME. A possible jail sentence isn’t the only thing that Bakaly has to fear if Johnson finds him guilty and the conviction stands up on appeal. Conviction would trigger bar disciplinary investigations of Bakaly, who was counsel to Starr and is admitted in California and the District of Columbia. In fact, Bakaly, a Maryland resident who has been unemployed since he left Starr’s office in March 1999, seemed to have had this problem in mind quite early. At the close of an FBI interview on Feb. 25, 1999, he commented that he would “be disbarred and possibly prosecuted” if convicted. Experts on legal ethics point out that, in an analogy close at hand, President Clinton was found by a judge to have lied in his Paula Jones civil deposition and now faces bar discipline in Arkansas. If Bakaly is found to have misled Johnson in his formal declaration, bar officials will open an inquiry. But Stephen Gillers of the New York University School of Law believes the consequences shouldn’t be severe. “I don’t think by any means that this will lead to disbarment or even suspension,” Gillers says. “A disciplinary committee will ask a different question [than Judge Johnson will]. It will ask, ‘Does Mr. Bakaly’s conduct give us concern about his fitness to practice law? Can we trust him with clients and with courts?’ ” Scott Drexel, chief administrative officer of California’s State Bar Court, says disciplinary proceedings there are not public until a bar prosecutor brings a formal complaint after an investigation, which has not occurred in Bakaly’s case. In Washington, D.C., as well, investigations are not public until bar counsel files charges. Bakaly declines comment. He said on the stand that his “disbarred” remark grew out of frustration at his inability to convince the FBI agent that his version of events was accurate. AROUND AND ABOUT Throughout the trial, lawyers tried to tell Judge Johnson what this case was, or was not, “about.” It’s not about leaking; it’s about lying, was one refrain. In its pretrial brief, Bakaly’s defense said the case was “about the truth or falsity of three statements” in Bakaly’s declaration and about one allegedly false statement in an OIC brief. It was not, the defense said, about whether Bakaly lied to the FBI or obstructed its investigation. But it could have been. After all, Bakaly, according to the prosecutors’ evidence, changed his story several times when talking to the FBI. Lying to a federal agent is a federal crime. Although the prosecutors didn’t return calls, it appears from court papers that they declined to pursue this charge despite some prodding from Johnson. And the judge, on her own, can’t charge a defendant with lying to an FBI agent. A federal statute says, however, that a judge can file a charge of contempt that occurs “in [her] presence or so near thereto as to obstruct the administration of justice.” Legal Times intern Peter Cullen contributed to this report.

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