Never in modern constitutional history has the federal judiciary so undermined the First Amendment.
Six weeks ago, the president made a sweeping assertion in court to create a new privilege of executive secrecy on matters having nothing to do with national security - and the court let him do it in secret.For the first time, a judge is considering extending this claim of being above the criminal law beyond the president himself, to his wife and everybody on his staff.
And the legal arguments protesting the closure of hearings surrounding this change in the public access to the official operations of our government have been filed and answered - in secret.
Here we have a great constitutional issue involving the usurpation of power. It deserves scholarly debate and a thorough airing. But federal judge Norma Holloway Johnson - a Carter appointee insecure about public scrutiny of her peremptory rulings on the most profound matters affecting our system of government - has sealed the constitutional pleadings and, in the president's delighted interpretation, sealed all lips.
Judicial secrecy is being used to cloak a reach for greater executive secrecy. The president claims he may delegate, and need not take responsibility for, asserting executive privilege; that the first lady is a federal official who may make that claim for herself against criminal investigators; and that his claimed immunity from investigation covers personal wrongdoing as never before contemplated in law.
On Wednesday, attorneys for a dozen of America's leading news organizations including the New York Times were at last permitted by a court of appeals panel publicly to protest this government in the darkness.
Johnson's reason for an iron curtain is to protect grand jury secrecy. But the truth is that the news organizations are not seeking access to proceedings into criminal matters properly guarded by rule 6 On the contrary, they want to put on the record substantive legal arguments about the principle of executive privilege - in which the public has an indisputable right to participate.
The judge fears that an occasional need to clear the courtroom to uphold rule 6 would be "too disruptive." That's some excuse for subverting the Bill of Rights. The appeals panel, mirroring the widespread hostility toward the media, Wednesday seemed to defer to that fear.
Who besides the judge opposes public debate about the expansion of presidential power? Not the independent counsel, who we now learn has urged that the court release documents prepared by White House lawyers detailing the president's claims.
One party seeking to block serious public discussion of a principle of law affecting the whole American people is the publicity-hungry lawyer for Monica Lewinsky.
The other party urging that the public be barred at least until transcripts are delayed and sanitized by the White House is Clinton, despite his pretense that he knows nothing about the privilege claim only he can make. His lawyers argue that debate about the power claim is inextricably intertwined with Rule 6 material. That's a smokescreen.
Not only can this constitutional argument be "bifurcated" from the rest of the case, as lawyers say about separation, but capable federal judges know how to hold trials without divulging genuine national secrets. Grand jury proceedings have long been protected without "disruption" and without denying public access to ancillary hearings dealing with fundamental issues. This usurpation is being kept out of sight because a judge is not prepared to wield a gavel in open court.
Forget Clinton; forget sex; forget lying; where are the civil libertarians and strict constructionists who care about equal justice, the separation of powers, the right of the people to have a voice in the great decisions that affect our future?
It's been 42 shameful days since the president's secret claim to be more than an ordinary citizen under the law. The last president to claim executive privilege did it in open court. All the briefs were on the record. Judge John Sirica polled the grand jury in open court without "disruption" and the media reported the decision instantly.
But that was in another country.
New York Times News Service