Secrecy Urged for Hearings on Starr Probe

Attorneys representing President Clinton and former White House intern Monica S. Lewinsky told a federal appeals court Wednesday that they favor keeping secret all hearings connected with the ongoing investigation of the pair’s relationship.

The session marked one of the rare times during the three-month controversy that the public and the news media were allowed to observe a court proceeding in the case.

News organizations are urging the U.S. Circuit Court of Appeals to order the chief federal district judge overseeing the investigation to open at least some of the proceedings and to allow prompt access to legal briefs and transcripts.

“The blanket secrecy imposed by the district court is intolerable,” said Theodore J. Boutrous Jr., an attorney representing 12 news organizations, including The Times. The secrecy, Boutrous said, is “inconsistent with the 1st Amendment and the common law.”

However, the president’s lawyers expressed concern about the possible exposure of information that should remain confidential. And an attorney for Lewinsky said that, in his view, the media have no right to increased access to the proceedings.

“This is all about selling newspapers. This is all about TV ratings,” said Nathaniel H. Speights III, who represents the former White House intern.

In recent weeks, attorneys have argued in secret hearings about the White House’s invoking of executive privilege to limit prosecutors’ questioning of two White House aides before a federal grand jury.

Under the strict conditions imposed by Chief District Judge Norma Holloway Johnson, there also were secret hearings on accusations by Clinton’s lawyers that independent counsel Kenneth W. Starr’s staff has illegally leaked confidential information on the investigation.

Such issues would have attracted more intensive coverage had they been argued in public sessions.

The three-member panel of appeals court judges that conducted Wednesday’s hearing is expected to issue a decision soon, according to lawyers involved.

Citing the confidentiality of the ongoing investigation, Clinton and his spokesmen have steadfastly refused to publicly acknowledge that the White House is using executive privilege to resist Starr’s inquiry.

The senior appeals court judge who presided at Wednesday’s hearing asked the White House lawyer to spell out his position on keeping future proceedings secret.

Facing W. Neil Eggleston, a lawyer retained by the White House to press the executive privilege claims, Circuit Judge A. Raymond Randolph asked: “So you want the matters closed?”

Eggleston responded that he saw no way to separate generic discussions of executive privilege from confidential, investigative information.

Randolph, registering skepticism, chided Eggleston for delays in providing proposed deletions to hearing transcripts. The deletions would be aimed at preventing disclosure of confidential information. Those documents have been requested by the news media.

“In fact, you might have avoided the appeal if you hadn’t delayed,” Randolph said.

Eggleston said afterward in an interview that “the White House supports the prompt release of the pleadings and transcripts that relate to the executive privilege issue.” He declined to describe on the record what the White House regards as “prompt.”

The president’s personal defense lawyer, David E. Kendall, told the judges that he fully supports the district judge’s rulings keeping the proceedings secret. “Grand jury secrecy is essential for the work of the grand jury.”

Drawing a contrast, Circuit Judge David S. Tatel pointed out that Starr had supported opening the proceedings related to executive privilege. Starr was not represented at Wednesday’s hearing.

Circuit Judge Judith W. Rogers indicated that she believes some proceedings could be arranged to avoid the disclosure of confidential information.

“There’s a way to present these things so they’re all jumbled. There’s a way to present them so they’re clean,” Rogers said.

Randolph, however, indicated that he believes the district judge, Johnson, had properly followed federal secrecy requirements.

“We believe it would be preferable and strongly in the public interest to have access to the live hearings,” Boutrous, the media lawyer, said.

The most impassioned presentation was made by Speights, who said that the impact on his client of damaging pretrial publicity outweighs any concern for public access.

“This is what they call a no-brainer . . . , “ Speights shouted. “The press certainly doesn’t have standing.”

Lewinsky has not been charged with any crime, but Starr’s office is weighing whether to charge her with perjury or encouraging another witness to lie under oath.

Lewinsky denied in a sworn statement dated Jan. 7 that she ever had sexual contact with Clinton. However, her lawyers later told Starr’s office that, in exchange for full immunity from prosecution, Lewinsky was willing to testify that she and Clinton had engaged in oral sex.

Clinton testified on Jan. 17 that he never had sex of any kind with Lewinsky.

Also Wednesday, Starr issued a statement rejecting the conclusions drawn in recent news articles concerning the status of the investigation. Starr said that his office has made “no decision . . . on the issuance, timing or contents” of any report that prosecutors might present to the House of Representatives. Under federal law, an independent counsel is required to report “any substantial and credible information . . . that may constitute grounds for an impeachment.”

Starr also said that his investigation “continues to be impeded by a variety of privilege invocations.”