Court often cast as keeper of secrets Much is under wraps in two Clinton cases

August 04, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The United States has no "Official Secrets Act," as Britain does. But U.S. courts can be effective keepers of secrets and are proving it again in the Monica Lewinsky investigation and the Paula Jones sexual misconduct case.

Americans who feel saturated with revelations about President Clinton and those two women may not realize that the public has been shielded from much more -- by court order.

News leaks, though abundant, have fallen well short of exposing everything. And what remains hidden from view is not all sexually explicit detail, though there is much of that -- including a still-sealed affidavit signed by Jones describing a portion of the president's anatomy as she remembers it from an alleged hotel room encounter in 1991.

In fact, since the judge in the Jones case issued a "confidentiality order" last fall, there have been 302 filings in the case -- with 209 of them sealed the moment they were brought to the courthouse; many remain under wraps.

Particularly in the Lewinsky matter, some of the graver legal questions affecting the nature of government -- including potential impeachment of the president -- are explored in partially secret hearings and decided in rulings with large parts blotted out.

News media lawyers draw a sharp contrast between the spread of secrecy lately and the broad openness of court proceedings during the Watergate scandal, which led to the threatened impeachment and the resignation of President Richard M. Nixon.

In that case, the attorneys note, Judge John J. Sirica held most of the proceedings in public -- even gathering evidence in an open courtroom while the grand jury was doing the same in secret.

Judge Norma Holloway Johnson, who is overseeing the Lewinsky grand jury, has held repeated hearings and encounters with the lawyers behind closed doors.

'A travesty'

"I think it's a travesty," P. Cameron DeVore, a Seattle lawyer, says of the wave of secrecy surrounding the Lewinsky scandal. "Given all of the public access [to court] rulings by the Supreme Court, you'd think this case would be an open book."

DeVore complains that "a lot of the major media have been sitting on their hands and not decrying this on their editorial pages" as more of the court action occurs behind closed doors.

But in a pending Supreme Court test case over the secrecy issue, W. Neil Eggleston, a Washington attorney who is defending the White House against some of the subpoenas by independent counsel Kenneth W. Starr, argues that the court-closings have been "well within the authority" of those courts.

Besides, he contends, the news media "at no time have been completely deprived of information about the proceedings."

White House press secretary Mike McCurry has argued that secrecy is necessary to protect the innocent. "Deliberations related to grand jury proceedings are secret because we don't rush to the assumption that people are guilty merely because grand juries are meeting," he told reporters the other day.

In the Lewinsky matter, Clinton and his legal team are raising three fundamental legal objections -- some rooted in the Constitution -- to Starr's investigative demands. As those disputes unfold, large portions of the legal briefs, the hearings and the final rulings remain shielded from public view.

A coalition of 12 news media organizations has been pressing formal motions since February to get more of those proceedings and filings opened up, with limited success.

In the past two weeks, two lower federal courts in Washington held secret hearings of profound import to the Lewinsky case: one to explore whether Starr should face severe sanctions if he leaked secrets to the news media; the other to hammer out the agreement that -- for the first time in history -- will put a president in the witness chair to answer accusations that he personally committed crimes.

No explanation for those secret sessions was given. In fact, neither court even acknowledged it had met, and no opinions or orders emerged. The news media learned about them through leaks.

Given number, then left blank

When one of the Lewinsky-related cases went to the Supreme Court this summer, it raised a number of legal questions. One of those issues was simply given a number, then left blank. It is unclear what that issue was.

When another of the cases reached the high court, its staff expressed dismay to the lawyers about how much of their documents the lawyers wanted kept under seal -- then promptly put most of the contents on public display. In recent weeks, the Supreme Court has been the one court most willing to open the files.

When an appeals court ruled last week against a White House bid to stop Starr from questioning White House lawyer Bruce R. Lindsey, 12 pages of the majority's 47-page decision had nothing on them. One entire section, presumably dealing with a major issue in the case, contained not a single word.

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