WASHINGTON -- Lifting one threat of criminal charges against independent counsel Kenneth W. Starr but leaving others dangling, a federal appeals court has blocked a contempt case against Starr and his staff over alleged leaks of grand jury secrets during their investigation of President Clinton.
The court revealed yesterday for the first time that a federal judge in July had ordered the prosecution of Starr's office for disclosing to the media internal discussions about possible criminal charges against Clinton. That order was nullified by the U.S. Circuit Court of Appeals for Washington, D.C., in the opinion made public yesterday.
Starr has filed no criminal charges against Clinton, but that prospect has not been ruled out. The newly released court ruling said nothing about the fate of any such charges.
In its ruling, the appeals court significantly narrowed the definition of an illegal leak. It concluded that prosecutors' internal deliberations about potential indictments are not grand jury secrets. All that grand jury secrecy rules protect from disclosure, the court said, is information currently before the grand jury or about to be given to grand jurors.
David E. Kendall, who heads the team of the president's personal defense lawyers, said he will ask the full 11-member Court of Appeals to review the three-judge panel's decision. The panel ruling, he said, was "inconsistent with the precedents" of the D.C. court on grand jury leaks.
The White House had no immediate comment.
Starr said in a statement that he was gratified by the ruling because it provided "necessary guidance" on leaks.
He added that the decision "rejects defense tactics of seeking to distract an investigation through accusations of illegal leaks." Starr said his office has obeyed the rules against leaks and would continue to do so.
U.S. District Judge Norma Holloway Johnson, who has been overseeing Starr's investigation of Clinton, had adopted a broad view of leaks, saying prosecutors' internal strategy discussions about their investigation were protected secrets.
The appeals court rejected that view. "Bare statements" by some of Starr's assistants that they wished to have Clinton indicted for lying and obstruction of justice "do not implicate the grand jury," the court said.
Unless prosecutors tell the media that they have actually asked a grand jury to indict, or specifically intend to ask for that, "ordinarily they will not reveal anything definite enough to come within" grand jury secrecy rules, the court added.
The court's opinion simultaneously brought out in the open some of the facts about a 19-month fight between Starr and the president's legal team about grand jury leaks.
Besides disclosing that Starr's office had faced a criminal charge, the court revealed that Starr's former spokesman, Charles G. Bakaly Jr., also faced a similar charge. In addition, it disclosed that a Justice Department investigation had led the judge to go forward with a contempt case.
At one point, Bakaly insisted he had not leaked anything. But Starr's office later withdrew that defense and argued instead that what he had done was not an illegal leak.
References to charges against Bakaly were among the parts of the court opinion that were blotted out before the document was released -- apparently to maintain some level of secrecy about the leaks probe.
Bakaly, who lost his job over the leaks issue, was not directly involved in yesterday's ruling, but apparently he, too, could benefit from it. Neither Bakaly nor his attorney, Howard Shapiro, could be reached for comment last night.
Still, the new decision dealt with only one leak to the media, and left unclear what has happened to Johnson's separate ruling that Starr or his staff may have illegally leaked 24 other secrets about their Clinton probe. Johnson handed that inquiry over to an outside investigator, a former local judge, but no word has emerged on the result.
What was evident, barring a higher court's decision to overturn yesterday's ruling, was that Starr's office could not be prosecuted for an alleged leak early this year to the New York Times. That, the court concluded, was not illegal.
At the end of January, when the Senate impeachment trial of Clinton was still going, the Times reported that a group of Starr's prosecutors believed that, soon after the Senate trial, Clinton should be charged with perjury and obstruction of justice for lying in the Paula Jones sexual misconduct lawsuit and before Starr's grand jury.
Clinton was acquitted of impeachment charges similar to those Starr's staff was proposing, but that acquittal apparently would not bar later criminal charges.
Pub Date: 9/14/99