Appeals Court Blocks Prosecution of Starr’s Staff for Grand Jury Leaks

WASHINGTON — A federal appeals court Monday blocked an effort by a chief U.S. district judge to prosecute independent counsel Kenneth W. Starr’s staff for a highly controversial leak about the Monica S. Lewinsky case.

The three-judge panel ruled that neither Starr’s staff nor one top official, Charles G. Bakaly III, can be prosecuted for allegedly leaking a story to the New York Times in January. The story said Starr had concluded he could seek an indictment against President Clinton before he leaves the White House.

Although the ruling represented a limited victory for Starr, it left undisturbed an ongoing investigation by an officer appointed by Chief U.S. District Judge Norma Holloway Johnson to determine the source of 24 earlier leaks to newspapers and broadcast organizations.

The court said Johnson, in a secret ruling two months ago, had sought prosecution for a leak of confidential grand jury information.

The appellate judges, however, held there was no evidence that the New York Times account was based on grand jury material. Rather, the panel said, it seemed to represent speculation by “some attorneys” in Starr’s office, or a rehash of old legal theories, that Starr had the authority to indict the president if he escaped impeachment and conviction by Congress.

The Jan. 31 story, appearing on the eve of Clinton’s Senate trial, drew an angry retort from the White House that Starr was trying to influence the upcoming proceedings as “the 101st senator.”

As to Johnson’s previously ordered investigation into 24 other leaks, a special master still is seeking to determine their source. That investigation was prompted last year by David E. Kendall, the Clintons’ private attorney, who brought the judge what she subsequently determined was “prima facie” evidence of two dozen leaks.

The judge ruled there were “serious and repetitive” violations of grand jury secrecy restrictions, but so far there appears to be no threat of prosecution of any individuals for the news reports cited by Kendall.

Kendall said he will appeal Monday’s ruling to the entire court of appeals because “we believe that the decision of the panel is inconsistent with the precedents” established by the full court.

The panel’s unanimous decision was issued by Judges Lawrence Silberman and Karen Henderson, both Republican appointees, and Patricia Wald, a Democrat.

Starr said he was gratified by the decision.

“The court of appeals rejected the allegations of the White House and President Clinton’s lawyers that this office illegally leaked grand jury information,” Starr said.

He added that the decision “rejects defense tactics of seeking to distract an investigation through accusations of illegal leaks. This office has abided, and will continue to abide, by the rules regarding grand jury secrecy.”

The appellate ruling disclosed that Johnson, who supervises grand jury investigations, was so exercised about the “Clinton indictment” story that on July 14 she secretly appointed the Justice Department to prosecute contempt charges against Bakaly and Starr’s office.

According to the appellate judges, Johnson wrote that “these matters are best resolved through a single contempt proceeding involving both Mr. Bakaly and the OIC [Office of Independent Counsel].”

The appeals court said, however, that both Starr and the Justice Department replied in sealed briefs that Johnson should withdraw her referral of Starr’s office for prosecution.

“DOJ [Justice] explained that based on its investigation, there was no factual basis for proceeding with a criminal contempt prosecution against the OIC,” the appellate ruling said.

“In addition, DOJ stated its view that the district court lacked authority to proceed against OIC for criminal contempt because Rule 6-E [grand jury secrecy] only applies to individuals. OIC cannot be held vicariously liable for acts of its staff. . . . “

Bakaly, a former Los Angeles lawyer, denied at the time that he was the source of the New York Times article. Starr, after initially denying that anyone in his office was involved, withdrew that denial and forced Bakaly’s resignation earlier this year. Starr, however, has insisted his office never has leaked secret grand jury material.

Bakaly could not be reached for comment Monday, and his Washington attorney, Howard M. Shapiro, did not respond to telephone messages.

Speculation about an indictment of Clinton has centered on charges of perjury and obstruction of justice in the Lewinsky investigation and in connection with his sworn deposition in the Paula Corbin Jones sexual harassment lawsuit, for which a federal judge in Arkansas has found him in contempt of court.

But whether a president can be indicted while he is in office has been a subject of intense debate among constitutional scholars because the Constitution appears to provide impeachment as the sanctioned course for dealing with presidential misdeeds.