By Bill Miller and Susan Schmidt
In a rare open court session on motions arising from the grand jury investigation of the Lewinsky matter, a consortium of a dozen news organizations, including The Washington Post, asked a three-judge panel to overturn a series of orders by Chief U.S. District Judge Norma Holloway Johnson. Johnson has refused media requests to cover most hearings before her on privilege claims, as well as denying public access to decisions she has issued and legal arguments filed with her.
Among the matters Johnson has considered in closed hearings are Clinton's reported invocation of executive privilege to shield White House aides Bruce R. Lindsey and Sidney Blumenthal from certain questions, alleged leaks by independent counsel Kenneth W. Starr's office, and attorney Francis D. Carter's attempt to decline to answer questions involving his former client Lewinsky.
Attorney Theodore J. Boutrous Jr., representing the media, argued that Johnson should not close hearings and court filings related to a significant constitutional matter such as executive privilege. "In Watergate all of the executive privilege issues were argued in open court," Boutrous said, contending that some of the recent hearings could be viewed as "historic events" and that at least a portion of them should be open.
While the three-judge panel did not rule, comments from two of the judges indicated they believe Johnson has wide discretion in deciding how open the proceedings should be. Lawyers for Starr did not file briefs supporting either side, but Starr's prosecutors raised no objections to letting reporters attend the hearings on executive privilege when they occurred. Boutrous said that showed the matters were not sensitive.
Starr's office said in a statement yesterday that his investigation "is moving very quickly but it continues to be impeded by a variety of privilege invocations" -- echoing comments Starr himself made to reporters last week in which he complained that the White House has sought to delay his investigation by invoking executive privilege.
Starr's statement also said that his office has made "no decision on the issuance, timing or contents" of any report to the House of Representatives concerning what the independent counsel statute describes as "substantial and credible information . . . that may constitute grounds for an impeachment."
The Washington Post reported yesterday that sizable portions of such a report on the Lewinsky matter have already been drafted by Starr's staff and that the lawyers are trying to complete the report by the end of May.
Starr also denied assertions by White House officials that his office has been working in concert with Republicans in a partisan plot to topple the president. "We have had no contact with the House of Representatives about this matter," said the statement.
White House spokesman Jim Kennedy defended the president's efforts to protect some internal communications. "We are pleased to hear that after spending four years and some $40 million, the independent counsel is now moving expeditiously. But it is odd for a prosecutor who has sought among other things to obtain private conversations between Vincent Foster and his attorney -- an extraordinarily intrusive move that the Supreme Court has deemed worthy of review -- to chastise those who seek to protect historic principles of confidentiality."
Not all of the proceedings on executive privilege will remain secret. Judge Johnson has already agreed to release an edited version of transcripts covering two hearings last month on the question of executive privilege. She has not yet done so because she is awaiting proposed versions from the White House as well as Starr's office. However, Johnson has refused to release edited transcripts of hearings concerning the news leaks and Carter..
W. Neil Eggleston, a private attorney for the White House in the executive privilege dispute, said the White House is not opposed to the prompt release of edited versions of transcripts and pleadings on the issue of executive privilege.
But he said he agreed with Johnson that it would be impossible to open the hearings themselves because attorneys are citing sensitive facts about the grand jury investigation during their arguments on the legal issues. His views were echoed by David E. Kendall, Clinton's personal attorney.
But Boutrous told the appeals court that the media have a First Amendment right to report upon the positions taken by the various parties.
"The blanket secrecy . . . is intolerable and inconsistent with the First Amendment of the Constitution and with common law," Boutrous said.
Boutrous told reporters after yesterday's hearing that Watergate Judge John J. Sirica, unlike Johnson, maintained an open courtroom atmosphere and even kept a public document detailing issues that came before him. "Issues were reported as they happened," he said.
Jamie Gardner, an attorney for Carter, said he has an "ethical obligation to preserve confidences and secrets" about his dealings with his former client and wanted matters kept under seal. Nathaniel Speights, who now represents Lewinsky, said Lewinsky too has a right to keep the proceedings secret. He disputed the media's contention that they have a First Amendment right to access.
"This is all about selling newspapers, getting TV ratings," Speights told the judges. "My client has not said a word -- period -- during the entire pendency of this investigation."
The media consortium included 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