The (court)room where it happens

Published May 2018

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

In the second act of the hit Broadway musical “Hamilton,” the Aaron Burr character expresses his jealousy at being excluded from –and his desire to get into – the meetings that his rival Alexander Hamilton participates in where major decisions are made to plot the course of the new United States. “I / Wanna be in / The room where it happens,” Burr sings.

Of course, this makes sense. To be in on a decision, or oftentimes even to know what decisions are being discussed and made, often requires being in the right place at the right time: “The room where it happens.”

A more recent – and not at all fictionalized – example came in April, when it was revealed that in addition to President Trump and Republican fund-raiser Elliott Broidy, the third client to whom attorney Michael D. Cohen gave legal advice was Fox News channel host Sean Hannity.

As The New York Times reported on the revelation, “After Mr. Hannity was named, there were audible gasps from the spectators.” Hannity later explainedthat his contacts with Cohen consisted of informal conversations about Hannity’s real estate holdings.

While the revelation got a lot of attention, it’s important to note how the information got out: a lawyer representing various news organizations was in the courtroom when one of Cohen’s lawyers was discussing Cohen’s clients, and pointed out to the presiding judge that there were no legal grounds to keep the identity of the third client confidential.

“[W]hen the judge said she was willing to take the client’s information under seal, that was my cue to get up,”media lawyer Robert D. Balin told the Columbia Journalism Review in recounting the incident. “… I pointed out … that the names of clients were not privileged and that there is a First Amendment right of access to court hearings whose purpose is to enable the public and press to monitor their institutions.”

Cohen’s lawyer, Steve M. Ryan, argued against Balin’s contention. “I think in the future this could affect people’s willingness to consult an attorney,” he said, according to The Intercept.

But Judge Kimba Wood was not convinced, and ordered Ryan to orally identify the anonymous client on the spot. And then the gasp when Hannity’s name was the one mentioned.

“I appeared at the Monday hearing to represent a group of news organizations,” Balin told CJR. “I had a funny feeling that an access issue might arise with respect to the third client.”

The point is that the unidentified client would have remained nameless if Balin had not been in the courtroom that day. It is the same point that Aaron Burr sings about in Hamilton: the only ones who get to influence the decision are those who are in the room where it happens: in this case, courtroom 26A in the Daniel Patrick Moynihan United States Courthouse in Manhattan.

Despite their economic troubles, the media have filed more federal Freedom of Information lawsuits in recent years. Here in South Carolina, the media have continued to file major state Freedom of Information lawsuits, including one involving the use of taxpayer funds by the Hilton Head Island- Bluffton Chamber of Commerce that ispending before the state’s Supreme Court. (The case has apparently already had an impact, with the Beaufort Regional Chamber of Commerce spinning off its government-subsidized tourism promotion activities into a separate organization to separate them from its business advocacy.)

But to maintain access to government information and records requires vigilance by the media and other groups, such as PAPR. In other words, those of us who care about these things need to be in the rooms – hearing rooms, legislative chambers, and courtrooms – where these decisions are made: the rooms where it happens.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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