Magazine article Editor & Publisher

Legal Quagmire Surrounds Attempt to Obtain Whitewater Report

Magazine article Editor & Publisher

Legal Quagmire Surrounds Attempt to Obtain Whitewater Report

Article excerpt

WHEN WALL STREET Journal reporter Ellen Joan Pollock heard that former Independent Counsel Robert B. Fiske field the final report of his Whitewater investigation under seal, the newspaper's attorneys petitioned the court to release the document.

The appeals court responded, but, in an unusual move, it sealed its own decision.

So Dow Jones & Co., the Journal's parent company, had its answer, but, due to the gag order, it could not disclose what it was or whether the report even existed, let alone what might be in it.

In addition, neither Fiske nor current Independent Counsel Kenneth W. Starr "would confirm or deny the fact" that their offices responded to the original Dow Jones motion, nor had Dow Jones seen anything from the government that may have been field as a response with the lower court.

Dow Jones took the case to U.S. Supreme Court Chief Justice William H. Rehnquist, because he has jurisdiction over the circuit in which the gag order was placed, asking that it be removed.

Fiske and Starr's responses were filed under seal.

The newspaper argued that sealing the appeals court order was an unconstitutional prior restraint, particularly since judicial proceedings carry a presumption of openness, and noted that the lower court "did not even attempt to explain or justify the prohibition against publication before entering it."

The chief justice found the appeal to be moot, since Dow Jones can report on the appeals court's second order, which denied an appeal of its first ruling and outlined reasons why it would not release the Fiske report.

No one at Dow Jones, however, even knew the second appeals court order existed until it was mentioned in Rehnquist's decision, at which point a copy was made available from the clerk. Even more troubling, the appeals court's second ruling referred to persuasive arguments from Fiske and Starr, but Dow Jones never saw those motions and was not given a chance to respond, as is normal courtroom custom.

"First of all, it is extraordinary, to say the least, for a federal appellate court to issue an order that is not served on the parties," noted Theodore J. Boutrous Jr. of the Washington, D.C., office of Gibson, Dunn & Crutcher, the law firm representing Dow Jones.

"SEcond, in that order it is disclosed that Fiske and Starr made arguments the court found persuasive. …

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