which only a qualified right of access attaches.
Viewed in the light most favorable to the position of the media applicants, the February 16 proceeding will have two aspects: (1) a CIPA-type hearing
to determine the testimony and other evidence that may be admitted into evidence consistently with the demands of classification and necessary secrecy, and (2) the recording of testimony for use at the trial. Clearly, the press and the public are not entitled to attendance during the CIPA aspects of the hearing.
Disclosure of sensitive information is likely to occur in the normal course of the Reagan deposition, both during questioning and responses, and as colloquies are had between Court, counsel, and the witness with respect to the admission or rejection of particular questioning and particular testimony, as well as the need for substitutions pursuant to CIPA. For these reasons, the Court does not understand the media applicants to argue that they have a right to be present while national security information is disclosed or discussed.
Instead, these applicants suggest that part of the hearing be open and part of it closed, and that the press representatives be asked to leave when a particular line of questioning is likely to elicit sensitive, classified information. Assuming that, somehow, the less highly classified of the initial or primary questions could be asked separately from the more sensitive ones -- at a great cost in the continuity of questioning that counsel is entitled to maintain for effectiveness -- little, if anything, would be gained by such a process. No one can know at this point what President Reagan's answers will be to these questions or the extent to which these answers will reveal classified, sensitive matters of state. That problem is magnified by the fact that, beyond the primary questions approved by the Court in its decision of February 5, 1990, counsel are entitled to ask follow-up questions dealing with the same general subject matter, and that the prosecution will conduct cross-examination. With respect to both these areas, the emergence of sensitive national security subjects is entirely unforeseeable.
In short, national security concerns may be expected to permeate the questioning, and the unforeseeability of their specific emergence at any point means that an attempt to have press representatives present at some parts of the examination but not at others, as the media applicants suggest, is not subject to reasonable implementation.
These difficulties are further exacerbated by the substantial possibility that, inasmuch as the relationship between the sensitive and the non-sensitive segments of the anticipated testimony is extremely close, information may be revealed inadvertently that should properly remain secret.
The closed hearing is designed to permit the Reagan testimonial purposes and the CIPA-type purposes to be accomplished in one proceeding.
That obviously could not be done if the proceeding were opened to the public and the press.
For these reasons, the Court will reject the request for attendance of the representatives of the media at the deposition itself. See Press-Enterprise, 478 U.S. at 13-14. However, as discussed below, access of the public and the press to the non-sensitive information resulting from the deposition can be achieved by alternate means.
It is important to keep in mind that the issue here is not whether, but rather when, the press will have access to President Reagan's testimony.
After the deposition of President Reagan has been concluded, the Court and the parties will meet to edit out of the videotape those portions which contain the sensitive material. As so edited, the tape will, of course, be available to the press and the public when it is played to the jury as part of the defendant's case.
Beyond that, it was initially the Court's view that release of the tape in advance of the trial itself should be mandated only if it appeared that such release would not be capable of invading defendant's rights, including his right to reveal his evidence at a time of his own choosing; his right to be free from possibly prejudicial pretrial publicity; and the possible juxtaposition by the media of the Reagan tape with tapes of defendant's testimony in Congress and the resulting Kastigar taint. However, it now appears that defendant supports broad access of the press to the testimony of President Reagan. Defendant's Response to Application for Access, filed February 13, 1990.
In view of that position by the defendant,
there would appear to be no legitimate legal obstacle to early access of the public to the videotaped testimony. The Court will therefore order the release of the tape to the public and the press as soon as the editing process has been completed.
The Supreme Court noted in Press-Enterprise, 478 U.S. at 9, that "openness in criminal trials, . . . enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." One of the reasons for this conclusion is that "people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." Id. at 13. Immediate post-editing disclosure of the videotape will give assurances of fairness to both the public and the accused, as open criminal proceedings are properly designed to do, but it will do so without jeopardizing sensitive national security information.
Accordingly, it is this 15th day of February, 1990
ORDERED that the application of the news media for attendance at the deposition of former President Reagan be and it is hereby denied; and it is further
ORDERED that the application of the news media for access to the former President's videotaped deposition be and it is hereby granted, such access to be effected as soon as the editing of the tape has been completed.