Politicians' secrets: Ryan versus Kerry

As teased on Thursday, this post begins with glamor photographs of two beautiful women.  Bear with me, though — I have a serious point to make here, one that I've actually been pondering for a couple of months.

After divorcing Julia Thorne, Sen. John Kerry famously dated Morgan Fairchild — pictured above on the left — as well as movie and TV celebrities Michelle Phillips, Catherine Oxenberg, and Dana Delany.

Former Illinois Republican senate nominee Jack Ryan used to be married to TV celebrity Jeri Ryan — pictured above on the right.  As CNN reported on June 22nd,

Several Chicago media organizations had sued for release of documents relating to the Ryans' divorce, saying the public interest outweighed their concerns about privacy and the possible effect on their now 9-year-old son. Friday, a judge in Los Angeles, where their divorce was litigated, agreed to unseal portions of more than 360 pages of documents, although large parts remained blacked out.

The unsealed court documents included allegations made by Ms. Ryan during their divorce — denied by her ex-husband — "that [while married,] he took her to sex clubs and asked her to engage in sexual activity in front of other patrons."  Mr. Ryan promptly withdrew from the Illinois senate race.

Last August, one of my readers emailed me with this damned good question:

What I was wondering is if the media could pry open sealed divorce records then why can't they force open the undisclosed military records of John Kerry?  Is there a particular legal difference that allows for the one and not the other or is it just lazyness/bias on the media's part?

As a lawyer, I have a good answer to this question.  As a citizen, I don't.

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My lawyerly answer:

Ms. Ryan's allegations were made as part of, and filed under seal among the court papers in, her and her ex-husband's divorce and child custody proceedings.  There's normally a strong presumption that all court proceedings, including the paperwork on which they're based, should be open to public view.  That presumption is oftentimes overcome, however, in intensely personal family court proceedings.  In sealing the portions of the court file that included Ms. Ryan's allegations, the California family court judge quite properly, in my opinion, concluded that the certain embarrassment not only of the divorce litigants, but of their minor son, amply overcame that presumption.  But what a trial court can do, it often can later undo — and that's what happened here, when the family court granted the media's request to unseal the records.

Sen. Kerry's military records, by contrast, are private not by virtue of a court order, but by dictate of various federal privacy statutes.  There is no beginning presumption that individuals' military records ought to be part of the public record.  Moreover, there is no general procedure — comparable to the application made by the sensation-hungry media in the Ryan matter — that puts into the hands of a single decisionmaker, like the California judge, the power to make a subjective weighing of the "public's right to know" against the individual's right to privacy.  The statutes that give the public, including the media, their rights in some circumstances to secure the release of government-held information — chief among them the Freedom of Information Act — contain broad exceptions that mandate government nondisclosure of military records like Sen. Kerry's, notwithstanding the fact that he's voluntarily thrust himself into the public eye.

Again speaking not just as a lawyer, but also as a divorced father, I'm frankly appalled by the California judge's decision in the Ryan matter — which came over the opposition of both of the divorced spouses.  I wish that they'd appealed the order.  But although I think the judge made the wrong decision, there's no doubt, as a legal matter, that it was a question which was within his power to decide (subject to appellate review).

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My answer as a citizen:

The only difference between these two situations is that the mainstream media — perhaps reflecting their perceptions of raw public appetite, or perhaps reflecting political bias, or both — have shown absolutely no serious interest in pressuring Sen. Kerry to release his own secret records.  While it's true that the law offers no parallel procedure to that used by the media to secure the release of the Ryan divorce records, as a practical matter of real-world politics, there can be no doubt that if the mainstream media had seriously tried to do so, it could have created sufficient pressure to compel Sen. Kerry to sign Standard Form 180 and thereby waive his statutory privacy rights.

One can argue, I suppose, about whether Jack Ryan's private marital relationship with his ex-wife was a legitimate matter of public interest, given his candidacy for public office.  I think it was not, no more than the details of John Kerry's break-up with Julia Thorne are particularly material to his fitness to be President — and the mainstream media, and even the overwhelming bulk of "new media" (cable, bloggers, talk radio hosts) have appropriately given Sen. Kerry a complete pass on that subject. 

But no one can seriously argue that Sen. Kerry's military record — including the mysterious circumstances of his discharge — are insufficiently related to his fitness to be Commander in Chief.  Sen. Kerry himself acknowledged the public's legitimate interest in his military record by posting carefully selected documents on his website.  But he's brazenly stonewalled efforts by the SwiftVets and others from outside the mainstream media to pressure him into releasing all of his records.  And the mainstream media have not only let him get away with that, they've allowed it to go largely uncommented upon.

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Sex sells newspapers and attracts TV viewers; indeed, with deliberate cynicism, I began this post with eyecatching pictures of two beautiful women to catch your attention, gentle readers.  And perhaps if Sen. Kerry had taken Morgan Fairchild with him to meet with Viet Cong representative Madame Binh in Paris, the mainstream media would have done its job.  But in this election cycle, they very clearly have not. 

Digging into Jack and Jeri Ryan's marital sex life ought to embarrass the mainstream media.  But failing to dig into John Kerry's military records ought to embarrass them more.  If John Kerry is elected, he will take office with unplumbed secrets that directly relate to his fitness to be President, and that the mainstream media have willfully and consistently ignored.  And that pernicious conspiracy of silence, friends and neighbors, is a long-term threat to our democracy that won't be eliminated or even much affected by Tuesday's poll results.  It's a problem that in fact we can't reasonably expect our elected officials to solve.  It can only be solved by an outraged American public — one that's mad as hell at the mainstream media, and that won't put up with it anymore.

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Update (Sun Oct 31 @ 9:00pm):  Pajama Journal and Captain's Quarters have noted that NBC News is engaging in selective editing to conceal Sen. Kerry's flustered admission on Thursday that not all of his records are public.  Nacht und nebel — the embarrassing admission is just "disappeared."

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Update (Sun Oct 31 @ 9:24pm):  A reader emails me to point out, correctly, that I've overgeneralized, or perhaps implicitly used an overly narrow definition of "mainstream media" without making that clear.  There are indeed newspaper and TV reporters who've done their best to dig into Sen. Kerry's military records, and others who've highlighted his refusal to release them all, and I commend them for their efforts.  My broadside criticism is directed at the top of the MSM pyramid, whose efforts have been fitful at best, and well short of the sort of persistent efforts that would put any real pressure on Sen. Kerry to end his stonewall.

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Update (Sun Oct 31 @ 10:08pm):  Hindrocket at Power Line argues that NBC's editing out Kerry's admission was likely innocent, but that the mainstream media's real cover-up of Sen. Kerry's military record was "by never — ever — asking him the basic question: 'Why won't you make all of your military records public?'"  I certainly agree with the latter conclusion.

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Update (Mon Nov 1 @ 12:20am):  This new post is an expansion on my 9:24pm update from earlier tonight.  Please share your own nominations to the "Swimming against the mainstream" honor roll for mainstream media reporters!