Former Starr aide told of straw indictment vote, agent testifies

WASHINGTON - Lawyers in the independent counsel's office took a straw vote during President Clinton's impeachment trial on whether the president should be indicted, an FBI official testified Friday in the contempt trial of a former aide to Kenneth Starr.

Agent Michael Erbach, in the trial of former Starr press spokesman Charles Bakaly III, said that Bakaly told him he learned of the vote from another Starr deputy, Jackie Bennett. Erbach did not say whether he knew results of the vote.

Erbach was a government witness, but confirmed in cross-examination that Bakaly volunteered what he knew about the source of news leaks to The New York Times. Bakaly is charged with misleading a federal judge when he denied in court papers he was a source of the leaks, for a story that said Starr concluded a sitting president could be indicted.

On Thursday, two former independent counsel's attorneys testified that Bakaly at first denied he was one of the anonymous Starr ''associates'' quoted in the article but later changed his story and admitted a role.

Erbach said the straw vote was among the information that Bakaly volunteered in an effort to help the FBI find the sources of the leaks. The Times story of Jan. 31, 1999 had said that Starr's lawyers met to discuss the options on indicting Clinton only a few days earlier.

''He told me Mr. Bennett advised him a straw vote had been taken,'' at that meeting, the agent said.

Erbach answered ''yes'' when asked by defense lawyer Gary Kohlman whether Bakaly believed his statements to the court were true - even though Bakaly informed the agent he may have inadvertently confirmed key portions of the article.

On Thursday's opening day of the trial, two former aides to Kenneth Starr testified that Bakaly misled U.S. District Judge Norma Holloway Johnson when he initially denied any role in leaks to the Times.

However, Bakaly's lawyers got one of the lawyers to admit that some information provided by the former spokesman was left out of a key court submission that led to the criminal charges. Agent Erbach, who was assigned to a team investigating the leaks, testified Bakaly told him much of the information.

Johnson is hearing the case without a jury. If convicted of contempt, Bakaly could receive up to six months in prison.

Former Starr deputy Solomon Wisenberg testified Thursday he became concerned to learn that Bakaly had admitted to the FBI that he was a source for some of the information in a January 1999 New York Times story. Written during Clinton's trial in the Senate, the article said Starr concluded he had constitutional authority to indict a sitting president.

Just weeks before his FBI interview, Bakaly had submitted a sworn statement to Johnson denying he had confirmed any information to the reporter who wrote the story or was one of the unnamed Starr ''associates'' quoted in the article.

''My problem was Bakaly admitting he was one of the Starr 'associates' referred to in the Times article,'' Wisenberg testified, calling the story a ''ham-handed attempt to influence impeachment.''

Wisenberg, testifying against his former aide, said Bakaly's account to the FBI was ''inconsistent with what he told me. He denied he told me he wasn't an 'associate.'''

The defense elicited a key concession from one of the Starr lawyers who helped prepare Bakaly's sworn statement.

Donald Bucklin said he didn't include all the information Bakaly had provided to him in the original court statement, because he didn't want it to fall into the hands of Clinton lawyer David Kendall.

At the time, Kendall was pursuing allegations of illegal grand jury leaks against Starr's office. ''I couldn't show that to David Kendall,'' Bucklin said.

Bucklin said he omitted Bakaly's material initially because the leak investigation was at a preliminary stage. More comprehensive statements denying leaks were submitted later but only to the judge, Bucklin said.

But Bucklin also testified that Bakaly changed his story over time. The spokesman originally ''assured me that he was not'' the source for any information in a New York Times article during the Senate trial, Bucklin said.

Prosecutors contend Bakaly was responsible for Starr's office submitting court papers, prepared by Bucklin, denying it was a source for the Jan. 21, 1999 article.

Bucklin said the independent counsel's original denial was ''put together almost exclusively'' from Bakaly's information. He later was forced to ''withdraw the entire argument that the OIC (Office of independent counsel) was not the source.''

The ''new information'' about Bakaly's role came not only from the spokesman's later admissions, Bucklin said, but from FBI investigators and from Wisenberg

Bakaly is not accused of leaking any improper information that was covered by grand jury secrecy rules, simply accused of misleading the court about his role.