It is John Mills’ job to help decide what people should never know.
Mills has been called into dicey criminal investigations — notably fashion designer Gianni Versace’s killing and the Danny Rolling serial murders in Florida — to protect the interests of the innocent.
He searches for a measure of privacy in what often becomes a most public process. An investigation may develop a carload of relevant information that stretches far beyond the case at hand. Mills’ goal is to guard families and relatives from the pain and suffering that might arise from disclosure of such sensitive information.
To do that, he argues that judges should seal certain court records.
So, as President Clinton moves toward an impeachment case built on the embarrassing details of a sexual affair, what does this specialist on privacy feel about one of history’s biggest dumps of steamy information?
He watched closely as Congress released box after box of files developed by Independent Counsel Kenneth Starr in the investigation of Clinton’s affair with Monica Lewinsky.
He followed the broadcast of Clinton’s grand jury video testimony.
Something about it troubled him, which puts him in lock step with a clear majority of Americans who have been asked about the case.
“Releasing this volume of information sets a dangerous precedent for harming innocent people, and no matter what you think, there are some innocent people here,” said Mills, who heads the Center for Government Responsibility at the University of Florida.
“If this were a criminal investigation that didn’t involve political figures, people would be outraged about this.”
In its rush to detail presidential misbehavior, did Congress inadvertently change forever the nature of investigations of political figures? Does anyone in the now wide-open investigative file of the Clinton case have left any claim to privacy?
How much should we know about the sex lives of politicians?
Even the American Civil Liberties Union, presumably a likely source of condemnation of privacy violations, doesn’t quite know what to say about the Clinton/Lewinsky disclosures. A spokesman begged off commenting until the ACLU reaches a consensus on how it should react.
But the report from Starr already has had such a profound effect on questions of privacy that a handful of members of Congress have felt compelled to confess publicly to previous affairs. And at least one candidate has filed an affidavit swearing he has never been unfaithful.
The public doesn’t seem to be comfortable with this level of revelation either.
In the days after the broadcast of the Clinton grand jury appearance, pollsters tapped strong signs that the viewing public thought Starr and his team had gone too far.
An ABC News poll asked people whether they thought Clinton was right to not talk about sexual details, or wrong to resist the prosecutor’s questions. Seventy percent of those questioned thought Clinton was right to avoid answering those questions; 27 percent thought he was wrong.
At the same time, 59 percent of those questioned thought the prosecutors were wrong to ask about sexual details of Clinton’s relationship with Lewinsky, while 41 percent said they were right.
A CBS poll asked people whether they thought it was necessary for the House Judiciary Committee to release the video of Clinton’s testimony. Seventy-two percent said it was not necessary. Only 27 percent thought it was.
By now, just about everyone knows the story about the president and Lewinsky in intimate, overwhelming detail. But no one really knows the implications yet, which may stretch well beyond the question of whether Clinton faces the impeachment process.
From his perspective as a specialist on privacy, says Mills, there is at least some logic behind the release of information related to the allegation that Clinton has perjured himself in claiming he did not have sex with Lewinsky.
But that is because Clinton is the president and was sworn to tell the truth.
He can see no reason why Congress should have gone out of its way to release so much personal information about Lewinsky, who testified under immunity, is not charged with a crime and is not likely to face a charge.
“I would say her life has been laid bare,” said Mills.
“Certainly the people I usually talk about are completely innocent third parties, but nonetheless, what constitutes private life is relevant in this case. Why make her testimony public? She’s not accused of anything.”
The Clinton case has carried the issue of privacy — already under severe strain as individuals lose more of the details of their personal lives to an efficient, computerized world of data collection — into deep, new waters.
Up to the point at which the investigative file on Clinton was released by Congress, one set of rules, some of which were informal, applied. Reports of untoward behavior by a politician might never see the light of day unless an arrest or lawsuit was involved.
To be sure, sex has been fair hunting ground for political reporters ever since presidential candidate Gary Hart was caught in a relationship by the Miami Herald in 1987. But, as in the case of Watergate, that revelation came as the result of a media investigation that followed a tested formula: Find it. Prove it. Print it.
This time, the media is merely the vehicle for relaying volumes of deeply private information unearthed by agents of the government.
Disclosure of investigative files isn’t new.
Organized crime figures, drug kingpins and other people of public notoriety have been the targets of government leaks for years. The information is generally attributed to “a government source,” sometimes a prosecutor who can’t find a way to pursue the case or an investigator who is trying to push a prosecution.
The legal system itself creates disclosure at various levels.
Depositions, records, evidence of all kinds, are readily available in cases as they move through the legal process unless they are sealed by the court, for example.
But official disclosures of grand jury proceedings are different matters.
Earlier this year, a U.S. District Court judge in New Jersey ordered U.S. Atty. Faith S. Hochberg to issue a statement over the Internet admitting her office had violated the rules in releasing secret grand jury information related to a New England lottery operator.
Judge Nicholas H. Politan said he “cannot find words strong enough to express (his) concern with the way in which the United States attorney’s office went about its preparation and ultimate dissemination” of the memo, which cited grand jury evidence as part of a sentencing recommendation.
Without acknowledging any violation, the U.S. attorney responded just last week with an Internet announcement that the released information should have been kept confidential.
But this kind of formal release — thousands of pages of information collected by Starr and his investigators — was unprecedented. And it’s drawing a strong reaction.
“This is a sordid affair and it is simply unheard of,” said Larry Pozner, a Denver attorney and president of the National Association of Criminal Defense Lawyers.
“You just don’t put grand jury material out in public. The rules of the grand jury do not protect the accused. They are one-sided affairs. A prosecutor in the room asks any question he wants to ask. There is no one to object. There is hearsay, innuendo, literally anything goes.
“If there is enough to charge, then charge. If there is not enough, then go home. No one has ever used grand juries the way they are being used in this case.”
Pozner rejects the argument that impeachment is a political process that carries the issue to an arena in which courtroom rules and regulations don’t apply.
“Forget the Republican and Democrat aspect of it. All I see at heart is a prosecutor has now found a way to release information that wouldn’t be released for any other citizen. It isn’t fair. This isn’t due process. Nobody is allowed to call their own witnesses. The accused never gets a chance to rebut.”
Chicago lawyer Julie Aimen, who serves on the board of the defense attorneys’ group, agreed that Starr’s release of so much detailed information is a sign that a new pathway has been opened for the political pursuit of future presidents.
“If what you are saying to me is that you are able to hire a special prosecutor to not find out the truth of matters, but to investigate these kinds of issues and then present it in this way, then yes, we are in a new era,” Aimen said.
