WASHINGTON — After Paula Corbin Jones, Monica S. Lewinsky and Kathleen E. Willey, seemingly nothing about President Clinton can be kept private--with the exception of matters debated in a federal courtroom here under the stern gaze of U.S. District Judge Norma Holloway Johnson.
In recent weeks, the president's lawyers have gone behind the closed doors of the courtroom to invoke the doctrine of "executive privilege" before Johnson. They are said to have argued that his top aides should not be forced to testify before the grand jury investigating Clinton about certain discussions with the president.
But no one can say for sure what was claimed or why. Reporters and the public have been barred from the courtroom and no transcript has been released. Legal briefs have been filed under seal. Even the judge's rulings cannot be disclosed to the public.
And it is not just Clinton's privacy that has been protected. Independent counsel Kenneth W. Starr has been called to account for news leaks that may have come from his office. But the hearing on that issue was closed, too, so no one can say just how much evidence points to Starr as the source of illegal leaks.
Today, lawyers for a dozen media organizations, led by the Wall Street Journal and the Los Angeles Times, will ask the U.S. Court of Appeals to open the hearings.
"The notion that the public can be barred--without explanation whatsoever--from a hearing where lawyers representing the president of the United States argue against prosecutors representing the United States before a federal judge itself makes a mockery of the 1st Amendment," says Washington attorney Theodore J. Boutrous Jr. in a brief to the appeals court.
While the grand jury operates in secret, Boutrous maintained that debates over purely legal disputes--such as over executive privilege--should be open to the public. Given the "grave importance and extraordinary public interest" in the case, he said, the media and the public should not have to depend on leaks to learn what happened in court.
The contrast with the Watergate era and Judge John J. Sirica could not be more obvious, say some lawyers.
Charged with handling the cases involving the original Watergate burglars and then the unfolding cover-up scandal, Sirica kept his courtroom open. Lawyers for President Nixon asserted executive privilege as a basis for resisting Special Prosecutor Archibald Cox's bid to obtain his Oval Office tape recordings. The case went all the way to the Supreme Court, which ruled that the tapes must be surrendered.
"During the Nixon era and Watergate, no one even thought of closing the proceedings," said Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. "I think what's happening now is indefensible. Given the magnitude of the issue, the taxpayers' dollars involved, a fundamental question about the separation of powers, I think the public has a right to hear the arguments."
But other legal experts and former prosecutors said that it is routine to close the courtroom to resolve disputes about a grand jury proceeding. They said that Sirica's open courtroom was an exception.
"Remember, this is a dispute about a grand jury, what witnesses are called and what they will be forced to reveal," said George Washington University's Stephen Saltzburg, a former assistant independent counsel. "There is no simple way to open the hearing without opening the whole thing. Under the rules of grand jury secrecy, we are not even supposed to know who is testifying. How can you open the hearing on an executive privilege issue without ultimately violating the grand jury secrecy?"
Arguments for opening the hearings Johnson is conducting were made before her last month. She rejected the bid in a sealed order. As a result, an attorney for the news media was barred from telling reporters just what happened.
"I can't say what she ruled, except to say she denied our motion," he explained.