Trial Reveals Starr Staff’s Straw Poll on Clinton

Internal deliberations on whether President Clinton should be indicted became so serious last year that prosecutors on the staff of former Whitewater independent counsel Kenneth W. Starr took “a straw vote” on the issue, according to federal court testimony Friday.

The disclosure came during the contempt-of-court trial of Charles G. Bakaly III, Starr’s former counselor and chief spokesman, who is charged with lying to a federal judge in connection with an investigation of a leak to the press.

FBI agent Mike Erbach, who looked into Bakaly’s role in a controversial newspaper story about the chance of a presidential indictment, said Bakaly told him that the informal poll among Starr’s lawyers was taken by Jackie Bennett, Starr’s hard-driving top deputy.

Erbach did not reveal if he knew the results of the poll, a matter not relevant to Bakaly’s trial. Starr did not seek such an indictment before he left office in October and turned the investigation over to Robert W. Ray.

Ray has said that the question of indicting Clinton after he leaves office is still under advisement.

Erbach, who questioned Bakaly about his court affidavit, in which he denied playing any role in a New York Times story on Jan. 31, 1999, said that Bakaly expressed some concerns about the document, which the Justice Department has charged is a “false and misleading statement.”

“Mr. Bakaly said he didn’t think the declaration was everything he could possibly have said about the matter,” Erbach testified. Bakaly’s lawyers have called the document truthful even though Bakaly later supplied so many details to the FBI about how he had helped the reporter that Starr demanded his resignation.

If convicted by Chief U.S. District Judge Norma Holloway Johnson in the nonjury trial, Bakaly, 44, a former Los Angeles attorney, could receive as much as six months in prison and possible disbarment.

When Bakaly was first questioned on Feb. 1, 1999, by an attorney working for Starr, the key issue was whether he had disclosed secret grand jury material. Bakaly has denied that accusation, and the Justice Department has not contradicted him. Bakaly also said he had played no role in the story, which reported that Starr had concluded he had the authority to indict Clinton. But he later acknowledged that he met with the reporter on three occasions and had two dozen phone conversations with him, Tom Lewis, another FBI agent, testified Friday.

Bakaly’s lawyers have claimed that he sought only to correct inaccuracies in information that the reporter, Don Van Natta Jr., said he had obtained from people outside Starr’s office.

“There is no evidence that the matters discussed were nonpublic,” Michele Roberts, a member of Bakaly’s legal team, told Judge Johnson. “There is no evidence that Mr. Bakaly commented on what Mr. Starr was thinking.”

A third FBI agent, Russell Robinson, who interviewed Bakaly, quoted him as saying that his only purpose in helping Van Natta was “to convey the message that the office [of independent counsel] would be proceeding with its own criminal investigation even after the Senate trial was over.”

Clinton was cleared by the Senate of perjury and obstruction of justice, the two charges that officials have said Starr and his prosecutors were considering bringing against the president.

While the FBI agents testified that Bakaly never admitted he had been untruthful, Robinson said Bakaly acknowledged that his court affidavit “was not a total account of what had occurred” between him and Van Natta.

The trial, which began Thursday, is expected to conclude Monday or Tuesday.