In re Grand Jury Proceedings (117 F. Supp. 2d 6, 2000)

United States District Court for the District of Columbia 2000-10-06

Citations

Full opinion text

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, Chief Judge.

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

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, “[tjhese 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) suggested] that the sources of the information include government attorneys or their agents.” Id. at 2 (citing Barry v. United States, 866 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 Neiv 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 pri-ma facie violation of Rule 6(e) had taken place. The OIC asserted that “[i]f Mov-ants fail to establish either prong, their motion must fail.” 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 pei'jury 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 Stair 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 pefson 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 “[consistent with the position I took with Mr. Van Natta, I declined to discuss non-public matters with Ms. Abramson, and her article states: ‘Charles G. 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 Ba-kaly declaration, the OIC states that:

[recently, 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 fade 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. [Ba-kaly 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 Neto 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 prose-cutorial 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 farther 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.

24. Accompanying DOJ’s July 13, 1999, letter was an in camera submission, contained in a sealed envelope. This submission was described as a report of the Government’s criminal investigation, including a detailed description of the evidence gathered during the investigation. To date, that envelope remains sealed and its contents have not been reviewed by the Court.

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 18 U.S.C. § 401(1), which states:

STATUTORY CHARGE-18 U.S.C. § 401(1)

On or about February 9, 1999, in the District of Columbia, Bakaly did knowingly make, and cause to be made, to this Court materially false or misleading statements and representations, and did knowingly omit and conceal material facts from the Court, to wit:

12. At the time he signed the Bakaly Declaration, Bakaly knew that it would be submitted to this Court in connection with the OIC’s Opposition Brief and knew that the Declaration contained the following materially false and misleading statements and representations (underlined for the purpose of this notice):

12(a). “I next recall a conversation with Mr. Van Natta on this subject on or about January-21, 1999. This occurred just a few days after an article by Jill Abramson appeared in the Neto York Times. Ms. Abramson’s article addressed possible trials of the President and others after the conclusion of the Senate impeachment proceeding. A copy of Ms. Abramson’s article is attached hereto at Tab 2. Consistent with the position I took with Mr. Van Natta, I declined to discuss non-public matters with Ms. Abramson, and her article stated: ‘Charles G. Ba-kaly, 3d, a spokesman for the Independent Counsel’s Office, would not comment on any indictment speculation ... ’ ” (Bakaly Declaration, ¶ 6, page 2).

At the time that Mr. Bakaly made the above underlined statement and representation he knew it was false and misleading in that he did, in fact, discuss non-public matters with Mr. Van Natta, such as:

1) Confirming four options regarding the possible indictment of President Clinton;

2) That a peijury count based on the deposition given in the Jones lawsuit was a stronger case than the perjury count being tried in the Senate;

3) That Professor Rotunda is not in the office very much and that Mr. Udolf left the office in April or May, 1998, and may be biased against the OIC; and

4) That Judge Starr relies quite a bit on Professor Kelley’s advice.

12(b). “I cautioned Mr. Van Natta that he should not rely on information from outside sources purporting to know what was going on inside the OIC. I noted that people often overstate their knowledge as well as their own importance. In an effort to steer Mr. Van Natta away from an inaccurate report, I suggested that Judge Starr was himself a constitutional scholar and would not be swayed by any one person or recent event. 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.’ ” (Bakaly Declaration, ¶ 8, page 3)

At the time that Mr. Bakaly made the above underlined statement and representation he knew it was false and misleading in that he did, in fact, discuss with Mr. Van Natta what Judge Starr or the OIC was thinking or doing, such as:

1) Confirming four options regarding the possible indictment of President Clinton;

2) Discussing internal OIC matters with Mr. Van Natta in an attempt to influence Mr. Van Natta to write the article in a way which would “protect the Office”; and

3) That a perjury count based on the deposition given in the Jones lawsuit was a stronger case than the ■ perjury count being tried in the Senate.

12(c). “During a conversation with Mr. Van Natta on either January 28 or 30, 1999, it became apparent that he 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. I also .expressed concern over the timing of his article during the Senate impeachment trial- and that the OIC would once again be unfairly criticized for interfering in the Senate’s business. Mr. Van Natta said that he had not thought of that as an issue.” (Bakaly Declaration ¶ 11, pages 3-4)

At the time that Mr. Bakaly made the above underlined statement and representation he knew it was false and misleading in that he was, in fact, the source of some information attributed to an associate or associates of Judge Starr and would not have been told by Mr. Van Natta that Mr. Van Natta’s sources were outside the OIC.

13. Based on Bakaly’s knowing failure to disclose material information to Bucklin, Cohen, and OIC personnel regarding his disclosures to Van Natta, including information described in paragraphs 12(a)(1) through (4), 12(b)(1) through (3) and 12(c), as well as the materially false and misleading statements and representations underlined in paragraph 12(a), (b) and (c) above, Bakaly knowingly caused the following materially false and misleading statements and representations to appear in the Opposition Brief:

“Mr. Bakaly declined to provide Mr. Van Natta with any information about OIC intentions, noting only that several other reporters had already written on the subject or were working on similar stories.” (Opposition Brief, page 12)

“In a subsequent conversation prior to the article’s publication, Mr. Van Natta advised Mr. Bakaly that he had learned that Mr. Starr recently had been convinced that a sitting President could be indicted. Mr. Van Natta also told Mr. Bakaly that he was aware that a group of OIC prosecutors felt that the President should be indicted. Mr. Van Natta further told Mr. Bakaly that all his ■ information came from sources ‘outside’ the OIC.

Mr. Bakaly refused to confirm the information that Mr. Van Natta already possessed.” (Opposition Brief, page 13)

14. As a result of Bakaly’s false and misleading statements and representations and material omissions described in paragraphs 12(a) through (c) and 13 above, proceedings in this Court, including consideration of the February 1 Motion for Order to Show Cause, were delayed and unnecessary work and costs were incurred by the Court and the parties as further described in paragraphs 8 through 10 above.

The above-stated conduct by Charles G. Bakaly, III, constituted misbehavior in the presence of the Court or so near thereto as to obstruct the administration of justice in violation of Title 18 U.S.C. § 401(1).

Amended Rule 42(b) Notice at ¶¶ 12-14 (emphasis in original).

30. The foregoing allegations comprise the complete criminal contempt charges that Mr. Bakaly faced at trial. The Court now turns to the specific facts that were proved beyond a reasonable doubt.

II. FINDINGS OF FACT

31. Acting in his capacity as Counselor and media spokesperson for the OIC, Charles Bakaly met New York Times reporter Donald Van Natta for breakfast at the Willard Hotel on January 11, 1999. Trial Transcript (“Tr.”) at 213. At that breakfast meeting, Mr. Van Natta informed Mr. Bakaly that he was working on an article about the plans of the OIC after the conclusion of the impeachment trial in the Senate. Tr. at 213-14, 298. Specifically, Mr. Van Natta was interested in writing an article on the possibility that the OIC might indict the President and on any discussions within the OIC pertaining to indictment options. Tr. at 214.

32. At the time of Mr. Bakaly’s first meeting with Mr. Van Natta, the reporter conceded to Mr. Bakaly that he had little more than speculation similar to what had already published in the past on this topic, most recently in a January 10, 1999, Washington Post article by Marianne Lavelle, entitled “Indictments Unlimited; Why Starr Won’t Stop.” Tr. at 46 at 298. Still, Mr. Van Natta insisted to Mr. Bakaly that he intended to write an article about . topic that would go beyond what Ms. Lavelle had already written by looking inside the OIC. Tr. at 46. Coming away from this meeting with Mr. Van Nat-ta, Mr. Bakaly decided that he would “take a risk” by continuing to speak to Mr. Van Natta on these confidential and sensitive topics in the hope of guiding Mr. Van Natta to write an article that would be positive for the OIC — informing the public that the OIC would still be in operation following the impeachment trial and may seek an indictment of the President. Tr. at 267, 297-99. In Mr. Bakaly’s words, he wished to “aggressively-... ‘set the stage’ for [the OIC’s] future work including the possible criminal prosecution of the President regardless of the outcome of the Senate impeachment trial.” Government Exhibit (“Gov.Ex.”) 14 at lfinternal quotation in original); see also Tr. at 468.

33. Mr. Bakaly next met with Mr. Van Natta for another breakfast meeting at the Willard Hotel on January 21, 1999. Tr. at 214. At this meeting, Mr. Van Natta told Mr. Bakaly that he had three new pieces of information: 1) that Independent Counsel Starr had recently reached the conclusion that the President could be indicted while still in office; 2) that certain members of the OIC were arguing that the President should be indicted after the impeachment trial concluded; and 3) that attorneys from the OIC had been at the National Archives researching the deliberations of the Special Prosecutors during the Watergate investigation of President Richard Nixon. Tr. at 214-15. Mr. Van Natta told Mr. Bakaly that this information came from sources outside of the OIC. Tr. at 47, 214, 385. Mr. Van Natta further informed Mr. Bakaly that he could likely guess the sources of this information. Tr. at 40, 216, 301. Mr. Bakaly speculated that Mr. Van Natta was alluding to Ronald Rotunda, a consultant to the OIC, or Bruce Udolf, a former member of the OIC, because Mr. Bakaly believed that Mr. Van Natta was talking to Mr. Rotunda and Mr. Udolf. Tr. at 217, 220, 301. Mr. Bakaly cautioned Mr. Van Natta that these sources are removed from the OIC itself and, therefore, the reporter should first present any information that he had to Mr. Bakaly in order to ensure its accuracy. Tr. at 105, 301.

34.During the course of several subsequent interviews with the FBI, Mr. Bakaly discussed the January 21, 1999, meeting with Mr. Van Natta. Mr. Bakaly admitted to the FBI agents that he told Mr. Van Natta that these three pieces of information could have only come from sources within the OIC. Tr. at 215, 224-25, 246, 269-70, 284, 299. However, the testimony of the FBI agents at trial regarding the meaning of Mr. Bakaly’s statement was somewhat ambiguous. It is unclear whether Mr. Bakaly’s statement that this was “pretty good information” that only could have come from within the OIC pertained to all three pieces of information or solely to the least sensitive and the least confidential piece of information — that OIC attorneys were undertaking historical research at the National Archives. Tr. at 269-70 (testimony of Agent Lewis limiting Mr. Bakaly’s confirming comments to OIC research being conducted at the National Archives); see also Tr. at 284 (Agent Lewis testified during cross-examination that “Mr. Bakaly told me that in telling Mr. Van Natta that the third [piece of information], that research was being conducted at the National Archives, had to have come from someone inside the Office of Independent Counsel, he was inadvertently confirming what Mr. Van Natta had told him.”); but see Tr. at 215, 224-25, 246, 299 (testimony of Agents Erbach and Robinson suggesting that Mr. Bakaly’s confirming statement pertained to all three pieces of information). In light of this ambiguity, the Court cannot find beyond a reasonable doubt that Mr. Bakaly specifically confirmed two far more sensitive pieces of information — that the Independent Counsel has concluded that he has the authority to indict the President and that a group of prosecutors are urging an indictment — by directly stating that this information was “good” and only could have come from within the OIC.

35. Mr. Bakaly has acknowledged that his ongoing discussions with Mr. Van Nat-ta on the non-public and sensitive topics of Independent Counsel Starr’s opinion regarding the potential indictability of a sitting President and the fact that a group of OIC prosecutors were pushing for an indictment shortly after the Senate impeachment trial may have “inadvertently confirmed” to the reporter that his information regarding the OIC’s internal deliberations was accurate. Tr. at 300. Specifically, in his sworn statement to the FBI, Mr. Bakaly acknowledged that:

During conversations I had with Mr. Van Natta between January 11 and January 30, 1999, we discussed the option of Mr. Starr seeking an indictment of Mr. Clinton. During the conversations I had with Mr. Van Natta on January 21,1999, and January 28, he indicated to me that he had information from outside the Office of Independent Counsel that there was a group of lawyers in the Independent Counsel’s office who thought the President should be indicted after the conclusion of the Senate impeachment trial. I tried to talk him away from this issue and may have inadvertently confirmed these facts by not explicitly denying them. I felt it was inappropriate for me to confirm, deny, or comment on that information. I repeated my concerns about how this information I knew he would report was going to be sourced.

Gov. Ex. 14 at 5. Despite his sworn statement regarding inadvertent confirmation, Mr. Bakaly continues to claim that he never confirmed or commented to Mr. Van Natta on what Independent Counsel Starr or the OIC were thinking or doing. Tr. at 384-85, 387-88. Rather, Mr. Bakaly claimed that his “inadvertent” confirmation comment was merely speculation as to how Mr. Van Natta may have interpreted his comments. Tr. at 247. While the Court finds that Mr. Bakaly did not expressly confirm this sensitive, non-public information, the Court must conclude that Mr. Bakaly’s ongoing discussions with Mr. Van Natta did lead the reporter to believe that his infoi-mation was accurate and was consistent with internal OIC sources.

36. Beyond this “inadvertent” confirmation, Mr. Bakaly made an effort to assist Mr. Van Natta with his article and to steer him toward the historical debate regarding the indictment of a sitting President. Tr. at 219, 388. Toward this end, Mr. Bakaly had his secretary fax a redacted internal OIC memorandum to the reporter. Tr. at 213, 389. This memorandum was authored by OIC attorney Stephen Bates and detailed statements made by the Watergate special prosecutors concerning their authority to indict a sitting President. The redacted copy of the so-called “Bates Memorandum” that Mr. Bakaly sent to Mr. Van Natta did not contain any marks that would identify this document as an internal OIC memorandum. See Gov. Ex. 7 (redacted Bates Memorandum). Rather, the redacted document clearly identified and cited historical arguments and quotations from the Watergate era. In its redacted form, the document is accurately identified in the Bakaly declaration as “a compilation and summary of excerpts from the Watergate Special Prosecution Force Report and from books written by Leon Jaworski (The Right and the Power) and James Doyle (Not Above the Law).” Gov. Ex. at ¶ 9; see also Gov. Ex. 7.

37. On January 27, 1999, the OIC held an “all-attorneys” meeting in order to discuss options relating to the possible indictment of the President and what actions the OIC should take regarding potential indictment following the impeachment trial. Tr. at 169, 211. All OIC attorneys were urged to attend this meeting and most of them did. Tr. at 194-96, 211. Mr. Bakaly attended part of the meeting, but left before its conclusion. Tr. at 211. The meeting began with an especially strong admonition that its substance was to remain strictly confidential. Tr. at 170-01, 463. The OIC attorneys then discussed the sensitive matters of the options and timing of any indictment of the President, what charges would be the strongest based on the evidence, and any other issues that OIC attorneys raised relating to the indictment of the President. Tr. at 169, 171, 212.

38. On January 28, 1999, Mr. Bakaly again met with Mi*. Van Natta at the Willard Hotel and, at this meeting, he became convinced that Mr. Van Natta’s article would be published shortly. Tr. at 216, 313. In addition to the three pieces of information that Mr. Van Natta had mentioned in their earlier meeting, the reporter now stated that he knew that the OIC was considering four options with regard to the indictment of the President: 1) indict the President and wait to try him until he leaves office; 2) indict the President under seal and seek to postpone trial until he leaves office; 3) indict the President after he leaves office; or 4) not indict the President. Tr. at 217-18. Mr. Bakaly was very troubled that Mr. Van Natta was discussing these four options at this January 28th meeting because the exact same options had just been discussed the day before at the OIC’s all-attorney meeting regarding the possible indictment of the President. Tr. at 171, 308, 393, 462. In fact, these four options had been outlined on a “flip chart” at the January 27 all-attorneys meeting and a “straw vote” on these options had been taken. Tr. at 172, 242-44, 463.

39. Mr. Bakaly confirmed to Mr. Van Natta that “these were the prosecutive options available to the independent counsel” and discussed these options with Mr. Van Natta. Gov. Ex. 14 at 4; see also Tr. at 282-83, 394, 462. By acknowledging these four options to the reporter at this sensitive juncture, the Court finds that Mr. Bakaly did confirm for him that these were the indictment options that the OIC was considering. Nonetheless, the Court finds no evidence in the record from which to conclude that Mr. Bakaly disclosed to Mr. Van Natta any details of internal OIC discussions of these options or indicated which option the OIC favored. Tr. at 256-57, 394. Moreover, Mr. Van Natta did not specifically tell Mr. Bakaly that he was aware of the all-attorneys meeting and Mr. Bakaly did not mention the meeting to Mr. Van Natta. Tr. at 394, 463.

40. At this point, Mr. Bakaly knew that Mr. Van Natta did indeed have sensitive information and he suspected that the reporter had raised these options as a direct result of the OIC’s confidential meeting discussing such matters the day before. Tr. at 400-01. As a result, Mr. Bakaly was very concerned about how the article would be sourced. Tr. at 49-50, 268, 313, 400-01-, 409-10. Mr. Bakaly believed that Mr. Van Natta’s potential article, if not sourced to shield the involvement of Mr. Bakaly or other members of the OIC, would be his “worst nightmare.” Tr. at 225. Accordingly, during a number of telephone conversations, he urged Mr. Van Natta that sensitive information in the article be attributed to sources outside the OIC and he told Mr. Van Natta that “I don’t want to get burnt,” meaning that he did not want to be recognizable as a source of information in the article. Gov. Ex. 14 at 4; Tr. at 268-69, 313. Mr. Van Natta responded that' he was still working on sourcing the article. Tr. at 50, 269. At Mr. Bakaly’s urging, Mr. Van Natta included in his article the statement that “Charles G. Bakaly, 3d, the spokesman for Mr. Starr, said, ‘We will not discuss the plans of this office or the plans of the grand jury in any way, shape or form.’ ” Gov. Ex. 1 at 1; see also Tr. at 272, 307-OS. Mr. Bakaly felt that this disclaimer was necessary to deflect anticipated suspicion that he was a source for the article. Tr. at 272, 307-08.

41. On January 30, 1999, Mr. Van Nat-ta had a final version of the article faxed to Mr. Bakaly’s home. Tr. at 227-28, 271. Upon reviewing the article, Mr. Bakaly realized that he was recognizable as the source for portions of the article. Tr. at 271, 314. In a colorful admission made to the FBI, Mr. Bakaly stated that his immediate reaction was “ ‘[o]h, sh-! I’m the associate of Ken Starr [referenced in the article].’ ” Tr. at 314. “ T played a risky game and I got burnt at this. And I feel bad, because when I look at this article, every time I see the term “associate,” ... I believe that he is referring to me.’ ” Tr. at 271 (Agent Lewis quoting Mr. Bakaly). Mr. Bakaly had contemplated resigning over the article at that point, but later reconsidered. Tr. at 315.

42. When Mr. Bakaly returned to the office on Monday, February 1, 1999, the day after the article was published on the front page of the Times, many members of the OIC were very concerned about confidential disclosures contained in the article. Tr. at 173-74, 315, 473-74. Two OIC attorneys circulated a memorandum stating their outrage because it appeared as though Mr. Van Natta had been privy to their discussions at their all-attorneys meeting on January 27th, despite strident admonitions that the meeting was to remain strictly confidential. Tr. at 315. As Mr. Bakaly stated at trial, “the problem that the Office had, and understandably that my colleagues had, [was] that they felt that Van Natta, somehow the reporter had been inside the conference room [during that January 27th all-attorneys meeting where the four options regarding the indictment of the President were discussed.]” Tr. at 473.

43. On February 1, 1999, Mr. Bakaly had the first of a series of meetings and telephone conversations with Donald Buck-lin and Andrew Cohen, the outside attorneys who represent the OIC in connection with charges of violating grand jury secrecy. Tr. at 31, 392. Mr. Bakaly told Mr. Bucklin that, during the course of several conversations with Mr. Van Natta prior to the publication of the article, Mr. Bakaly had learned that Mr. Van Natta had much of the confidential and sensitive information that appeared in the article. Tr. at 392. Specifically, Mr. Bakaly told Mr. Bucklin that the reporter was aware that certain members of the OIC favored indicting the President and that the OIC was considering four options regarding indictment. Tr. at 38, 98-100, 392-93. Mr. Bakaly assured Mr. Bucklin that Mr. Van Natta had told Mr. Bakaly that all of the sources for this sensitive information came from outside the OIC. Tr. at 38, 100. Moreover, Mr. Bakaly expressly vowed to Mr. Bucklin that he was not “an associate of Ken Starr” as that term was used in the article. Tr. at 39, 66,124,129-30.

44. At the time of Mr. Bakaly’s first meeting with OIC’s outside counsel, mov-ants had not yet filed their motion for an order to show cause. Tr. at 93. Thus, Mr. Bakaly’s discussion with Mr. Bucklin on February 1, 1999, was more in the nature of a preliminary and internal investigation. Tr. at 93. The motion for an order to show cause was filed later that day. Shortly thereafter, the OIC launched a more formal internal investigation of the leaks that led to Mr. Van Natta’s article. Tr. at 177. This investigation was conducted by the FBI. Tr. at 35, 177. Solomon Wisenberg, an OIC attorney, acted as the office liaison to the FBI for the purpose of this internal leaks investigation. Tr. at 35,177.

45. On either February 2 or 3, 1999, Mr. Wisenberg spoke to Mr. Bakaly to determine the extent of his contacts with Mr. Van Natta prior to the publication of the article. Tr. at 179. At that point, Mr. Wisenberg had been informed that Mr. Bakaly had provided the reporter with a redacted version of the Bates Memorandum and Independent Counsel Starr’s testimony before the House Judiciary Committee regarding the potential indictability of a sitting President. Tr. at 175. Mr. Wisenberg asked Mr. Bakaly if he had provided Mr. Van Natta with any other information contained in the article and Mr. Bakaly stated that he had not. Tr. at 179-80. The Court finds that this statement did not accurately reflect the amount and sort of information that Mr. Bakaly had actually provided to Mr. Van Natta. Furthermore, Mr. Bakaly told Mr. Wisen-berg that he had spoken to Mr. Van Natta after the article had been published and the reporter had told Mr. Bakaly that the term “associate” in the article did not refer to anyone inside the OIC, even though he was aware that he in fact was an “associate” cited in the article. Tr. at 190-91.

46. On February 3, 1999, Independent Counsel Starr called Mr. Bucklin and informed him that Mr. Bakaly had come forward and acknowledged that he had sent a redacted internal OIC memorandum, the Bates Memorandum, to Mr. Van Natta. Tr. at 42-43. In light of this new revelation and for the purpose of crafting the OIC’s response to the motion for an order to show cause, Mr. Bucklin interviewed Mr. Bakaly again. Tr. at 43, 52. At that point, Mr. Bakaly informed Mr. Bucklin that certain quotes from the Bates Memorandum had found their way into the Times article. Tr. at 113-14, 122. After reviewing the redacted Bates Memorandum, Mr. Bucklin was relieved to discover that the memorandum did not concern any actions that might be taken by the OIC- — it was purely historical. Tr. at 44. Because Mr. Bucklin determined that the redacted Bates Memorandum did not concern any action being contemplated or taken by the OIC, he did not see a need to examine Mr. Bakaly’s suggestion that portions of the Bates Memorandum are quoted in Mr. Van Natta’s article. Tr. at 123,128.

47. Mr. Bucklin proceeded to interview Mr. Bakaly again with a view toward drafting the declaration that Mr. Bakaly ultimately signed and filed with the Court in support of the OIC’s opposition to the motion to show cause. Tr. at 52. Again, Mr. Bakaly affirmed that Mr. Van Natta had sources outside the OIC that told him that the OIC was considering the indictment of the President and that Mr. Bakaly had not confirmed that information. Tr. at 46-47, 100. Mr. Bakaly also told Mr. Bucklin that Mr. Van Natta had promised to make it clear in the article that his sources for this confidential information had come from outside the OIC. Tr. at 50.

48. Following this meeting, OIC outside counsel began the process of drafting a declaration to submit with the OIC’s opposition to the motion to show cause. Tr. at 52. The information in the declaration was based on Mr. Bakaly’s interviews with OIC outside counsel. Tr. at 52. According to Mr. Bucklin, “[t]he purpose of Mr. Bakaly’s declaration ... was to advise the Court that the author of the article represented to us that his sources were outside of the Office of Independent Counsel, notwithstanding the use of the term ‘associates’ and notwithstanding the [confidential nature] of the information itself.” Tr. at 53.

49. Once Mr. Bucklin and Mr. Cohen completed an initial draft of the declaration, they forwarded it to Mr. Bakaly for his edits and revisions. Tr. at 53, 261-62. At trial, Mr. Bakaly argued that his edits to the declaration demonstrate that he was attempting to limit its broad scope, thereby shedding some light on whether he had the requisite intent to deceive or mislead the Court with the final version of his declaration. Tr. at 262. The Court will now proceed to make findings regarding certain revisions to the declaration that were suggested by Mr. Bakaly.

50. The Court finds that the only relevant revisions are contained in the draft of the declaration identified as “DRAFT 02/08/99 1:47 PM.” Gov. Ex. 3c. Paragraph 5 of this draft relates to the January 11, 1999, conversation between Mr. Bakaly and Mr'. Van Natta and states “I refused to provide Mr. Van Natta with any information other than to note the fact that several other reporters had already written on the subject [of various alternatives available to the OIC regarding the potential indictment of the President] or were working on similar stories.” Id. Mr. Bakaly suggested that this sentence be revised to read “I did not provide Mr. Van Natta with any information about [OIC] intentions other than to note ...” Id. (revisions in bold). Mr. Bakaly’s revisions were adopted in the final version of the declaration. Id.

51. Paragraph 6 of this draft pertains to the January 21, 1999, conversation between Mr. Bakaly and Mr. Van Natta regarding Mr. Bakaly’s involvement in a recent article by Jill Abramson, one of Mr. Van Natta’s colleagues at the New York Times. In its original form, the relevant sentence stated, “[c]onsistent with the position I took with Mr. Van Natta, I had refused to provide any information for Ms. Abramson.” Gov. Ex. 3c at ¶ 6. Mr. Bakaly rewrote the sentence to read, “[cjonsis-tent with the position I took with Mr. Van Natta, I declined to discuss non-public matters with Ms. Abramson.” Id. (revisions in bold). This revision was also included in the final version of the declaration. Id.

52. Finally, paragraph 9 of this draft relates to the documents that Mr. Bakaly acknowledged providing to Mr. Van Natta, namely, the redacted Bates Memorandum and the Independent Counsel’s testimony before the House Judiciary Committee. The draft originally stated that “[t]his was the only information that I provided to Mr. Van Natta, none of which in any way related to grand jury matters.” Gov. Ex. 3c at ¶ 9. Mr. Bakaly suggested that this sentence be shortened to state only that “[n]one of this information in any way related to grand jury matters.” Id. Again, his revision of this sentence was included in the final version of the declaration. Id.

53. In addition to drafting the Bakaly declaration, OIC outside counsel also prepared a brief in opposition to the motion for an order to show cause. Tr. at 69. The OIC opposition brief was filed with the Court along with the Bakaly declaration on February 9, 1999. Tr. at 71. One of the counts of criminal contempt lodged against Mr. Bakaly states that his failure to disclose material information to OIC outside counsel and his use of false or misleading statements in his declaration caused false or misleading representations to be made to the Court in the OIC’s opposition brief. See Amended Rule 42(b) Notice at ¶ 13. Specifically, the relevant statements in the opposition brief represented that: 1) Mr. Bakaly had declined to provide Mr. Van Natta with any information regarding the OIC’s intentions; 2) Mr. Van Natta had told Mr. Bakaly that certain sensitive information came from sources “outside” the OIC; and 3) Mr. Bakaly had refused to confirm information that Mr. Van Natta already possessed. Id.

54. While Mr. Bakaly did not review the OIC opposition brief prior to filing, he had been informed by Mr. Bucklin of the arguments that would be made in the brief based on his declaration. Tr. at 69-71. Mr. Bucklin testified that he made it clear to Mr. Bakaly that the OIC was “going to rely on Mr. Bakaly’s affidavit for the argument that [the OIC was] not the source of the information in the Van Natta article that was alleged to have been 6(e).” Tr. at 71. In fact, the OIC’s argument that it was not the source of the sensitive disclosures that movants complained about in their motion to show cause was based almost exclusively on information provided by Mr. Bakaly in his interviews with OIC outside counsel and contained in his declaration. Tr. at 72. As Mr. Bucklin noted, “the only thing we discuss [in the opposition briefs second argument] is Mr. Bakaly and Mr. Van Natta’s conversations.” Tr. at 72.

55. Following the filing of the OIC’s opposition brief and the Bakaly declaration with the Court, the OIC continued conducting its internal investigation of the source of the Times article. During the course of several interviews with FBI agents, Mr. Bakaly acknowledged that he was indeed the source, or a source, for much of the information found in the article. Accordingly, the Court must compare the article with evidence in the record in order to reach findings of fact regarding the overall role that Mr. Bakaly played as a source for Mr. Van Natta’s article.

56. On February 25, 1999, Mr. Bakaly was interviewed by FBI Agent Thomas Lewis and Mr. Bakaly acknowledged that he was the source for two particular quotes in the Times article. Tr. at 272. The first quote, attributed to “Mr. Starr’s associates,” states “that neither the outcome of the Senate trial nor the public’s wishes expressed in opinion polls would affect [Independent Counsel Starr’s] decision. ‘Prosecutors do not take polls to decide what to do,’ another associate of Mr. Starr said. ‘Ken has proven he is immune to polls.’ ” Gov. Ex. 10 at 1 (copy of Times article containing handwritten check marks of Agent Lewis, identifying statements that Mr. Bakaly admitted providing to Mr. Van Natta); Tr. at 274. Mr. Bakaly told Agent Lewis that those quotes came from him and that he felt betrayed by Mr. Van Natta’s sourcing of these quotes because knowledgeable people reading the article would know that these statements came from him. Tr. at 274. As Mr. Bakaly told Agent Lewis, “this is a dead giveaway” that he is the associate of Mr. Starr cited in this paragraph. Id. In his sworn statement given to the FBI on February 26, 1999, Mr. Bakaly again admits that these statements are “a direct quote made by me during one of the conversations I had with Mr. Van Natta.” Gov. Ex. 14 at 4.

57. The second quote found in the Times article that Mr. Bakaly took responsibility for in his February 25 interview with Agent Lewis is expressly attributed to him. This paragraph states that:

At a November breakfast meeting with reporters here, Mr. Bakaly, the Independent Counsel’s spokesman, said that Mr. Starr had not ruled out the option of seeking an indictment of Mr. Clinton after his term ended, but Mr. Bakaly quickly added: “I don’t want to send any signals here. There’s no statute of limitations problem. We have developed a criminal case.”

Gov. Ex. 10 at 2; Tr. at 273. Again, Mr. Bakaly expressed his displeasure with this quote and its sourcing because he felt that the proximity of the quote to other sensitive information sourced to associates of Mr. Starr made it appear that the latter information also came from him. Tr. at 273. Mr. Bakaly reaffirmed, in his sworn statement, that he did in fact make the quoted remarks to a group of reporters at a breakfast meeting in November 1998 at the Willard Hotel. Gov. Ex. 14 at 5.

58. Later that same day, February 25, 1999, Mr. Bakaly had a second interview with FBI agents, this time with Agents Russell Robinson and Michael Erbach. Tr. at 295-96. In this interview, Agents Robinson and Erbach again reviewed the Times article with Mr. Bakaly. Tr. at 301-02. Mr. Bakaly now acknowledged his responsibility for additional statements that were cited to associates of Mr. Starr. Tr. at 303. Mr. Bakaly admitted that he was a source for the paragraph which stated that “[bjefore taking [the] unprecedented action [of indicting a sitting President], Mr. Starr would be guided by a number of factors, including the impact that an indictment of the President would have on the nation and the Government, said the associates and others with whom Mr. Starr has discussed the matter.” Gov. Ex. 13 at 1 (copy of the Times article containing handwritten, numbered paragraphs that Agents Robinson and Erbach used when they interviewed Mr. Bakaly). Mr. Bakaly told the FBI agents that he provided Mr. Van Natta with the information found in that paragraph. Tr. at 304. Mr. Bakaly reaffirmed that he was a source for this information in his sworn statement by acknowledging that “[dluring our multiple conversations, I discussed with Mr. Van Natta the fact that Mr. Starr would take into account the impact that such an indictment would have on the government process.” Gov. Ex. 14 at 2.

59.Mr. Bakaly further conceded that he was a source for the next paragraph of the Times article stating that “[t]he associates [of Mr. Starr] say that Mr. Starr agrees with the conclusion of his office’s two constitutional law scholars, who say that the Constitution and legal precedent provide a prosecutor with the authority to seek the indictment, trial and conviction of a sitting President.” Gov. Ex. 13 at 1. With regard to this paragraph, Mr. Bakaly told the FBI agents that he had discussed with the reporter the fact that “the OIC utilized two constitutional law scholars, being Mr. Rotunda and Mr. Wil