By Bill Miller
The ruling was a setback for a consortium of a dozen news organizations, including The Washington Post, that hoped to gain broader and quicker access to the host of closed hearings and sealed court decisions and legal pleadings concerning the investigation into whether President Clinton had a sexual relationship with Lewinsky and lied about it under oath or urged others to do so.
"The press is not entitled, by the Constitution or by rule, to information about matters occurring before the grand jury," Judge A. Raymond Randolph wrote in the opinion for the D.C. Circuit Court of Appeals.
The decision upheld a recent series of orders by Chief U.S. District Judge Norma Holloway Johnson that barred reporters from hearings on issues such as executive privilege and attorney-client privilege.
In its unanimous, 19-page ruling, the three-judge appellate panel cited federal rules protecting the secrecy of grand jury proceedings. News organizations are not entitled to open hearings when there is a risk of revealing details about grand jury work, the panel stated.
But the decision could result in some information that is currently secret being made public. The judges instructed Johnson to maintain a public docket of matters stemming from the grand jury investigation that would note when proceedings take place but not reveal what is being discussed.
The judges -- who included Clinton appointees Judith W. Rogers and David S. Tatel, in addition to Randolph -- said court rules give Johnson wide discretion to determine if any hearings can be conducted openly and permit her to release edited transcripts of proceedings and court documents when she deems it appropriate.
The news organizations went to the appellate court in hopes of gaining access to arguments and decisions about claims of executive privilege by White House aides Bruce R. Lindsey and Sidney Blumenthal, Clinton's complaints about alleged leaks by independent counsel Kenneth W. Starr's office and attorney Francis D. Carter's attempt to decline to answer questions concerning his former client Lewinsky.
In a rare open session April 8 stemming from the Lewinsky matter, lawyers for Clinton, the White House and Lewinsky urged the judges to continue to bar the news media from the sealed hearings.
Johnson has agreed to release edited materials concerning the executive privilege claims but has yet to do so. She has released nothing publicly on the other matters. Regarding Carter, the appellate judges ordered Johnson to consider making some documents and transcripts public in light of the fact that Carter's own attorney revealed he had raised the privilege issue.
Attorney Theodore J. Boutrous Jr., who represented the media organizations, said he had not decided whether to appeal the ruling. "We are pleased that the court has sent some issues back to Chief Judge Johnson . . . but are disappointed that the court failed to recognize the public's important First Amendment rights to witness these historic proceedings," Boutrous said.
"The appellate judges found there is some balancing that has to go on here," said Washington lawyer Bruce W. Sanford, who specializes in media issues. "The opinion recognizes the First Amendment value in the public receiving as much information as is consistent with the grand jury's need for secrecy."
The media consortium comprised The Post, Dow Jones & Co., the Los Angeles Times, ABC Inc., the Associated Press, Cable News Network Inc., CBS Broadcasting Inc., Fox News Network, the National Broadcasting Co.; the New York Times Co., Time Inc. and USA Today.
© Copyright 1998 The Washington Post Company