Federal judge blasted Her Way co-author Van Natta for "fraudulent attribution" in 1999 Times article

››› ››› RAPHAEL SCHWEBER-KOREN

In Her Way, Jeff Gerth and Don Van Natta Jr. repeatedly cite former officials in the Office of Independent Counsel (OIC) to rehash allegations against Sen. Hillary Rodham Clinton. This recalls Gerth's and Van Natta's controversial reporting on the OIC at The New York Times. In fact, a federal judge criticized Van Natta for "journalistic sleight of hand" and "fraudulent attribution" of key information in a 1999 article. In that article, Van Natta also allowed an OIC spokesman to falsely deny that he had been a source on internal OIC discussions.

As Media Matters for America noted, in the book Her Way: The Hopes and Ambitions of Hillary Rodham Clinton, co-authors Jeff Gerth and Don Van Natta Jr. repeatedly cite former officials in the Office of Independent Counsel (OIC), including former independent counsel Kenneth Starr himself, to rehash allegations against Sen. Clinton that those officials had long ago determined they were unable to prove in court. Gerth and Van Natta's often uncritical repetition of these allegations recalls their controversial reporting at The New York Times on matters investigated by the OIC and their reporting on the office itself. Indeed, Van Natta allegedly misrepresented his sources in a 1999 Times article about Starr's office considering whether it could -- and should -- impeach President Clinton while he was in office, leading a federal judge to sharply criticize Van Natta for "journalistic sleight of hand" and "fraudulent attribution" of key information. Gerth and Van Natta do not mention the rebuke by the judge, Norma Holloway Johnson, anywhere in the book.

In the January 31, 1999, Times article, Van Natta also separately allowed OIC spokesman Charles Bakaly III to falsely deny that he had been a source on internal OIC discussions. In an October 5, 2000, opinion, Johnson found that Bakaly had confirmed Van Natta's reporting on those discussions -- so Van Natta had to know that Bakaly's denial was false.

Johnson issued her rebuke of Van Natta in an opinion accompanying her decision on a contempt proceeding against Bakaly, which arose from charges that he had violated the Federal Rules of Criminal Procedure by providing grand jury information to Van Natta. As part of the OIC's defense against the charges, the office claimed that it was not the source of the information in Van Natta's article, based on Bakaly's sworn statement. But during an internal OIC investigation, Bakaly admitted that he had given Van Natta information for the article. As a result of Bakaly's admission, Johnson initiated contempt proceedings against the OIC and Bakaly over the leak. The U.S. Court of Appeals for the District of Columbia later ruled that the leak itself had not violated grand jury secrecy rules. Bakaly, however, was prosecuted for criminal contempt over the allegation that he made specific false statements in a sworn affidavit that described his role in the Van Natta article as limited. After a trial, Johnson found Bakaly not guilty because the government did not prove that they were false beyond a reasonable doubt, even though Bakaly's sworn statements were "misleading."

Johnson criticized Van Natta for his reporting on the contents of the internal OIC discussions, writing that he "falsely described as present day debates within the OIC" several "historical debates and quotes" from Watergate prosecutors about whether a sitting president could be indicted. The "debates and quotes," were, in fact, part of a compilation in an internal OIC memo. Bakaly gave a redacted version of the memo to Van Natta that contained only historical statements. Johnson found that "statements from the redacted [internal OIC memo] appeared, word for word, in the Times article":

In their talks, the lawyers in Mr. Starr's office have cited the arguments made in the Watergate era in their deliberations about whether to proceed with such drastic action, associates of Mr. Starr said.

Those in favor have cited a view held by some prosecutors in Mr. [Watergate special prosecutor Leon] Jaworski's office that "a failure to indict the incumbent President, in the face of evidence of his criminal activity, would seriously impair the integrity of the criminal process," an associate of Mr. Starr said.

Another argument in favor is that "prosecutors should pay no heed to considerations of national interest," an associate of Mr. Starr said. As a prosecutor in Mr. Jaworski's office said in 1974: "We have a duty to act without regard for external factors. It is not for us to weigh the political effects."

But several of Mr. Starr's prosecutors have also said that the Nixon-era prosecutors considered both the risk that the Supreme Court would ultimately strike down an indictment and the impact on the nation.

Johnson concluded: "Any fair reading of the [above passages in the] Times article suggests that Mr. Van Natta is quoting unnamed 'associates of Mr. Starr' in at least three of the[m]. Yet a comparison with the redacted [internal OIC memo] convincingly demonstrates that these precise quotes actually come verbatim from historical materials and, in the [internal OIC memo], these statements are cited to Watergate era sources." In a footnote, Johnson sharply criticized Van Natta for this "fraudulent attribution":

This aspect of the evidence presented at trial is deeply disturbing. As the foregoing comparison demonstrates, Mr. Bakaly has made a persuasive showing that historical debates and quotes were lifted verbatim out of the [internal OIC memo] and falsely described as present day debates within the OIC. The misimpression that this journalistic sleight of hand produced is quite troubling for what it shows about the reliability of anonymously attributed information. More important for the purpose of the present inquiry, the fraudulent attribution of historical information to present day members of the OIC could have had an impact on the Court's determination of the second prong of the Barry test, i.e., whether the OIC should be held to answer, under the penalty of contempt of court, for possibly leaking information that may include matters occurring before the grand jury. At the prima facie stage of inquiry, the Court often has no evidence that goes beyond the attribution on the face of the article. The use of the redacted [internal OIC memo] in the Times article demonstrates how easily the parties and a court can be led astray by an inaccurate and misleading attribution.

In addition, Van Natta's article quoted Bakaly as saying, "We will not discuss the plans of this office or the plans of the grand jury in any way, shape or form." However, Johnson noted in her opinion that Bakaly had "acknowledged that his ongoing discussions with Mr. Van Natta 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."

Regardless of whether Bakaly knowingly confirmed internal OIC deliberations and discussions, Johnson concluded that Van Natta had viewed Bakaly as a confirming source: "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 information was accurate and was consistent with internal OIC sources."

According to Johnson's opinion, Bakaly asked Van Natta to insert the denial to protect himself from suspicion that he might be one of the article's sources. From Johnson's opinion:

40. At this point, Mr. Bakaly knew that Mr. Van Natta did indeed have sensitive information and he suspected that the reporter had raised [**38] 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, [*20] 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, 307-08. 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 Natta 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 "'oh, sh--! I'm the associate of Ken Starr [referenced in the article].'" Tr. at 314. "'I 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 ([FBI] Agent Lewis quoting Mr. Bakaly). Mr. Bakaly had contemplated resigning over the article at that point, but later reconsidered. Tr. at 315 [emphasis added].

In other words, Van Natta simply reported without contradiction Bakaly's statement that the OIC would "not discuss the plans of this office or the plans of the grand jury in any way, shape or form," despite Van Natta's having spoken to Bakaly and despite Bakaly's having provided confirmation for Van Natta's story, according to Johnson's findings.

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