Clinton Lawyers Ask for Protective Seal on Videotaped Testimony

ARKANSAS–The press and public should not be allowed to copy videotaped testimony by President Clinton introduced at the Whitewater fraud trial, the Department of Justice argued in federal court after the U.S. Court of Appeals in St. Louis (8th Cir.) refused to allow a coalition of media groups to copy the video in mid-May.

The government argued that if copying is permitted, the videotape would be subject to “selective editing, out-of-context replays and similar misuse” by the President’s political opponents.

The appeals court decided that it did not have jurisdiction over the conflict because the trial court had not entered a final order regarding access to the video.

In late May the government submitted a motion for a protective order to be placed on the original video and any copies. The Department of Justice argued that nonparties do not have a First Amendment or common law right of access to copies of the videotape. The press and public were able to exercise their rights to attend the trial and to have access to the written transcripts of the President’s testimony, they argued. However, this did not give them a right to copy the videotape, which would have given them a greater access right than to the testimony of any other witness, they added.

Additionally, the government pointed to examples of videotaped testimony by Presidents Ford and Carter, as well as audio tapes associated with Watergate, where access was limited to in-court viewing and transcripts of the testimony.

President Clinton’s personal attorneys filed a memorandum in support of the motion for the protective order, arguing there is a “strong likelihood” that portions of the tape would be used for “partisan purposes” or for commercial gain.

“The common law right of access should not be a tool for unscrupulous marketers to line their pockets — particularly by distorting public documents,” they argued.

The trial court had scheduled a hearing on the media’s and public’s right to copy the videotape after the trial, with responses to the media’s request due May 24 and replies due June 7. But in late May the trial court expedited the briefing schedule and moved up the due date for the reply briefs to May 31.

The coalition consists of The Reporters Committee for Freedom of the Press, the Radio-Television News Directors Association, Capital Cities/ABC, Turner Broadcasting System, NBC, and CBS. (U.S. v. McDougal, et al; Media Counsel: Philip Anderson, Little Rock)