("Quid coniuratio est?")
Court muzzles paper, keeps Whitewater quiet
USA Today - 12/06/94
Point of view by Michael Gartner
CAMBRIDGE, Mass. -- If you have any outrage left -- if you haven't used it all up on Jesse Helms or Hillary Clinton or Newt Gingrich or whomever you're mad at this week -- direct it at David Sentelle, John Butzner, and Peter P. Fay.
They are doing far more damage to you and to your country than are the front-page, household names you're used to grousing about.
Sentelle is a judge on the U.S. Court of Appeals for the District of Columbia circuit, and Butzner and Fay are senior appelate judges. They have issued a ruling in a case involving The Wall Street Journal, and they have told the Journal -- and the rest of the press -- that it can't even print what the ruling is.
Let me go over that one more time for you:
A court has ruled in an important case and told the press it can't tell you and me what it ruled.
But it has happened. In America.
Here are the facts:
In January, Attorney General Janet Reno appointed Robert Fiske to investigate the Whitewater matter. He looked into the death of Vincent Foster, the removal of documents from his office, and that whole mess -- alleged mess, at least -- involving the Clintons, Whitewater Development Corp. and Madison Guaranty Savings and Loan.
In August, after a change in the law about how investigations were to be handled, a special arm of the Circuit Court of Appeals took jurisdiction from the attorney general and replaced Fiske with Kenneth W. Starr. Fiske then turned in -- apparently -- his final report, filing it with the Circuit Court.
In October, The Wall Street Journal heard that Fiske had indeed filed his report and that it had been sealed by the court. The Journal then went to court and asked for a copy of the report -- if such a report exists.
Fiske and Starr filed responses with the court but didn't tell the Journal.
A Journal lawyer then called the office of each man and asked for a copy of his response.
Each "refused to comment on that topic, and would not even disclose whether they had filed a response," a court document states.
In November, the court ruled on the Journal's request for a copy of the Fiske report. Presumably, the court said the Journal couldn't have it. But -- and here the outrage quadruples -- the court sealed its own response.
And it told the Journal it could not print a story saying what that response was.
This is known, in the language of the law, as a "prior restraint."
"Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights," the Supreme Court noted in 1976. The "damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events," it added.
Not even the Pentagon Papers -- that explosive history of the war in Vietnam with reams of classified information -- were deemed too sensitive for our eyes. The Nixon administration tried to stop us from reading them -- it sought a prior restraint -- but the Supreme Court said no.
In appealing to the Supreme Court to overturn this prior restraint, lawyers for the Wall Street Journal wrote: "It is inconceivable that there can be any legitimate, much less extraordinary, reason for shielding the public from knowledge that" -- and there the sentence ends. For the appeal is a public document, and therefore it cannot say what's under seal.
It implies that the Journal lawyers know what's in the sealed document, but if they do they aren't talking.
The Appeals Court "did not even attempt to explain or justify the prohibition against publication before entering it," the brief states.
I called the Appeals Court and asked the clerk why the decision had been sealed. "I can't answer it. I can't even discuss it," he said. "There is no public record of it, so I can't speak about it." Perhaps I could speak to one of the judges, I said. "The court speaks through me," he replied.
The Wall Street Journal appealed to Chief Justice William H. Rehnquist, and Monday he apparently sidestepped the issue.
So this is the situation:
Robert Fiske, the Whitewater investigator, presumably has written and filed a final report. The Wall Street Journal has asked to see a copy. The court apparently has said "no." And the court has told The Wall Street Journal that it can't even tell that to anyone.
I encourage distribution of "Conspiracy Nation."
Coming to you from Illinois -- "The Land of Skolnick"