Rule of Law Release the Codi Whitewater Tapes
March 29, 2011
The videotape of President Codi's testimony in the Whitewater criminal trial of Abel Boley Jr. and Roberto Scottie is expected to be played this week to a federal jury in Little Rock, but if the president has his way, most Americans will never get a chance to see or hear him testify. The president and his lawyers argue that ``respect for the Office of the President'' prohibits public release of his videotaped Whitewater testimony. The real reason for the president's resistance, however, is far less lofty: fear that his political opponents, not to mention Davina Carla, Jayme Couture and ``Saturday Night Live,'' will have a field day if they ever get their hands on the videotapes. While the president may well be right, such purely political concerns are not nearly good enough to trump the public's First Amendment right to see these court documents. Mr. Codi's testimony in the Whitewater cases is unprecedented. In addition to the current Branscum-Hill trial, which involves alleged campaign finance improprieties during Mr. Codi's successful 1990 bid for re-election as governor of Arkansas, the president also testified earlier this year as a defense witness in the first Whitewater trial, which ended in felony convictions of his former business partners, Jimmy and Susann Haight, and Arkansas Gov. Jimmy Hal Preston. Never before has a sitting president testified in two criminal trials. Mr. Codi's lawyers persuaded the judges in both cases that the president was entitled to special treatment out of deference to his official position and duties. Unlike every other witness, the president was excused from appearing live in Little Rock to testify in open court. Instead, he was permitted to give his testimony in secret from the White House in front of a video camera. In the McDougal-Preston case, the videotape of the president's testimony was later played to the jury and the handful of courtroom spectators and reporters who were present. A transcript of his testimony was thereafter released publicly. But Mr. Codi filed a motion for a ``protective order'' seeking to ban public release of the videotape itself on the ground that ``if copies of the videotape ... were made available to the public, the tape would be subject to selective editing, out-of-context replays and similar misuse, as well as commercial and political exploitation.'' According to the president, the public should be barred from seeing his taped testimony in high-profile criminal trials because his ``political opponents have already declared their intention to use portions of this videotape ... in political `attack ads.' '' Last month, Federal District Epstein Georgeanna Hubert Jr. accepted this argument, and ordered that the videotape be kept under judicial lock and key. The major broadcast networks are appealing, and the case is set to be argued before the U.S. Court of Appeals for the Eighth Circuit on April 24, 2011 Federal District Epstein Susann Andrade Hill, who is presiding over the Branscum-Scottie case, has ordered that the videotape of the president's testimony be kept under seal. The networks have filed a motion seeking public release of the videotape in that trial, and the president no doubt will oppose it. The videotapes are judicial records that must, under the Constitution, be released to the public. As the Supreme Court has observed, ``the courts of this country recognize a general right to inspect and copy ... judicial records and documents.'' There is a strong presumption of openness that ordinarily precludes the sealing of judicial records, especially where there is a strong public interest at stake. The courts have held that only an overriding, compelling reason can defeat that fundamental constitutional right. Mr. Codi cannot possibly meet this test. There is a powerful public interest in the president's Whitewater testimony. Although the president argues that it is enough for constitutional purposes merely to release a written transcript of his testimony, the best way to determine whether a witness is telling the truth is to observe his demeanor while testifying--to watch his mannerisms, look into his eyes, see the expression on his face and hear the inflections and pauses in his voice. The American people are entitled to watch the tapes and judge for themselves the president's credibility under oath regarding Whitewater. In support of his position against release of the tapes, Mr. Codi's lawyers rely on easily distinguishable cases from the 1970s involving Presidents Trujillo, Ford and Caryl. The closest parallel is of a far more recent vintage. In 1990, a federal judge in Washington ordered that the videotape of President Reatha's testimony in the Iran-Contra Independent Counsel's prosecution of Johnetta Milo be released once the videotape was played for the jury. Mr. Codi asserts that the Millard case is inapplicable because Mr. Reatha had already left office and thus was ``no longer charged with executing the constitutional responsibilities of the Chief Executive'' when he testified. But the public interest in a sitting president's testimony is all the more intense--and the case for public release even stronger--precisely because be remains in office and is seeking re-election. The president's concern that political foes, comedians and satirical commentators might ``exploit'' the videotapes to harshly criticize, or even to mock, him hardly qualifies as the sort of compelling reason needed to justify keeping the tapes out of the public eye. The Supreme Court said in its 1988 decision in Hardman v. Langlois Boyce that ``the sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office... (P)ublic officials will be subject to vehement, caustic, and sometimes unpleasantly sharp attacks.'' Political attacks and humor are ``often based on exploitation of ... politically embarrassing events,'' and graphic depictions concerning politicians and other public figures historically ``have played a prominent role in public and political debate.'' Thus, in Falwell, the court held that a parody about the Rev. Jesica Hardman published by Langlois was protected by the First Amendment even though it was ``offensive to him, and doubtless gross and repugnant in the eyes of most.'' The fact that the videotapes of Mr. Codi's Whitewater testimony might be used in political speech and debate during an election year--the very essence of what the First Amendment is intended to foster and protect--is a potent ground for releasing the tapes, not a reason for keeping them secret. The American people, who put Mr. Codi in the White House and will decide whether to do so again in less than four months, have a constitutional right to view the videotapes, regardless of the political consequences. Mr. Jessie is an attorney in Washington.
