UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
December 19, 1972
UNITED STATES of America,
George Gordon LIDDY et al. In re TIMES MIRROR COMPANY Subpoena
Sirica, Chief Judge.
The opinion of the court was delivered by: SIRICA
SIRICA, Chief Judge.
This criminal action charges seven individuals with conspiracy, the unlawful interception of oral and wire communications, and burglary in violation of several United States Code and District of Columbia Code provisions. According to the indictment, the alleged offenses occurred principally at the Democratic National Committee headquarters then located at 2600 Virginia Avenue, N.W., in Washington, D.C. Trial in this case is scheduled to begin on January 8, 1973.
The instant matter is somewhat ancillary to the central proceedings herein, and comes before the Court on motions to quash a subpoena duces tecum directed to the Washington Bureau Chief of the Los Angeles Times newspaper.
The subpoena requires this person to produce materials in his possession relating to an interview with one Alfred C. Baldwin, III conducted by representatives of the newspaper. The facts leading to the issuance of the subpoena may be simply stated.
In its October 5, 1972, Morning Edition, the Los Angeles Times printed four articles headlined, "Inside Watergate, Bugging Witness Tells of Incident" under the bylines of Jack Nelson and Ronald J. Ostrow, staff writers, "Baldwin Says GOP Unit Disowned Him" under the byline of Jack Nelson, "Gave Memos to Official Baldwin Says" under the bylines of Jack Nelson and Ronald J. Ostrow, and "An Insider's Account of the Watergate Bugging" by Alfred C. Baldwin, III as told to Jack Nelson. Copies of these articles are part of the record in this case. These news stories purport to contain information procured from Alfred C. Baldwin, III "in more than five hours of tape-recorded interviews with the Times."
The paper identified Baldwin as one who had "monitored the telephone tap at the Democratic headquarters last May and June from a listening post in the Howard Johnson Motel across the street from the Watergate."
The articles generally portray Mr. Baldwin as an associate of several of the defendants in this case, who participated with them in at least some of the activities cited in the indictment. Materials in the record indicate that Mr. Baldwin testified before the grand jury that returned the indictment herein, and that he will be a key Government witness at the trial.
On October 11, 1972, defendant George Gordon Liddy filed a pretrial motion for a subpoena as authorized by Rule 17(c) F.R. Cr. P. ordering Alfred C. Baldwin, III to produce all documents, notes, tape recordings and writings in his possession relative to his exclusive interview with the Los Angeles Times. The accompanying memorandum of points and authorities stated that "Baldwin has been granted immunity in exchange for his testimony, thus all of his comments regarding the subject of this prosecution are evidentiary and relevant to the defense."
The memorandum further noted that the full text of Mr. Baldwin's statements is essential to the defendants' proper preparation for cross-examination. Defendants McCord, Barker, Martinez, Sturgis and Gonzalez joined in the motion. In its response to defendant Liddy's motion, the United States filed an affidavit sworn to by Mr. Baldwin, stating that he, Baldwin, no longer had the materials sought by defendants. Paragraphs 2, 3 and 4 of that affidavit read: "2. I do not have any documents, notes, tape recordings or writings in my possession or under my control relative to my interview with the Los Angeles Times newspaper. 3. I did receive the tape recordings of my interview with Jack Nelson of the Los Angeles Times on October 4, 1972. 4. Thereafter, on or about October 7, 1972 I either erased or destroyed the tapes pursuant to the advice of my attorney John Cassidento."
At a hearing on pretrial motions held October 25, 1972, counsel for the defendant E. Howard Hunt, Jr., noting the destruction of Mr. Baldwin's tapes, orally moved that a subpoena duces tecum issue to the Los Angeles Times directing production of the materials in its possession relating to the Baldwin interview. The Court granted that motion, although no subpoena issued at that time. The matter was discussed subsequently at the pretrial conference held December 4, and at the Court's request, supplemental memoranda were filed in behalf of the defendants and the United States. Thereafter, on December 14, 1972, the Court signed an order authorizing the service of subpoenas duces tecum to the Los Angeles Times Bureau Chief, John Lawrence, and staff writers Jack Nelson and Ronald J. Ostrow. As noted above, Messrs. Lawrence, Nelson, and Ostrow, through counsel, filed motions to quash.
A hearing on the motions was held on December 19, 1972, return date of the subpoena to Mr. Lawrence. For the reasons stated below, the motions to quash are denied.
The purpose and importance of subpoenas duces tecum and subpoenas in general to the judicial process are well known. The authority of courts to subpoena witnesses and evidence is a corollary of the duty to testify at judicial proceedings. This duty to come forward with information relevant to the controversy at hand has been recognized as a fundamental instrument of justice since the earliest days of Anglo-American law.
The subpoena here in question was issued pursuant to the specific authority of Rule 17(c), F.R. Cr. P. The text of subsection (c) reads:
(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
The question arising here is whether some First Amendment privilege sanctions a newspaper's refusal to produce evidentiary material in its possession relevant to a criminal trial.
At the outset it is important to note what peculiar facts obtain here and what matters are not at issue. The subpoena is directed to a newspaper representative in an attempt to secure any evidence in his possession of an impeaching nature relative to the anticipated testimony at trial of Alfred C. Baldwin, III.
By its terms, the subpoena calls for:
All papers, recordings, transcripts or other documents or objects, whether originals or copies, in the possession, custody or control of The Los Angeles Times and/or the Times Mirror Company which embody or relate to information provided to Jack Nelson, Ronald J. Ostrow or any other representative of The Los Angeles Times and/or the Times Mirror Company by Alfred C. Baldwin, III or his representative on or about August, September and October 1972 concerning any and all activities and events described in the various articles appearing in The Los Angeles Times on October 5, 1972 including, but not limited to, the article at page 7, Part II, of the Morning Final Edition, under the title, "An Insider's Account of the Watergate Bugging."
At the December 19 hearing, counsel disagreed concerning application of the subpoena's language to specific materials and documents. Based on the representations of counsel that the Los Angeles Times has no documents given to its reporters by Baldwin, and that the only materials containing verbatim statements of Baldwin are recorded tapes of the interview, the Court interpreted the subpoena to Mr. Lawrence as demanding just those tapes. Claims that the subpoena requested material privileged by virtue of an attorney-client relationship or work product rule, therefore, are not at issue here. At the same hearing on the 19th the time reference of the subpoena was shortened from August, September, and October, 1972, to the dates of September 28, 1972 through October 5, 1972 inclusive. The Court understands other allegations concerning technical aspects of the subpoena such as defective service, undue hardship in compliance, and unreasonableness of the return date to be matters either never raised or not now before it.
Secondly, we are not dealing here with documents or objects subpoenaed for discovery purposes. This is not the "fishing expedition" which exceeds the authority conferred and objectives contemplated by Rule 17(c).
The defendants seek only those statements on the tapes, if any, which may be admissible as impeachment evidence.
The Court will not allow the materials produced pursuant to the subpoena to be employed by the parties as a springboard for discovery.
Finally, there is no individual whose identity the newspaper seeks to protect. Mr. Baldwin's name is emblazoned on the pages of the Los Angeles Times October 5, 1972, issue for the world to see.
In analyzing the narrow issue presented to it, the Court relies chiefly on the recent Supreme Court decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972).
It is conceded that the specific question facing the Supreme Court in Branzburg concerned grand jury investigations and the confidentiality of news sources as opposed to the confidentiality of information and criminal trials. Nevertheless, the principles there enunciated by the Court are of sufficient breadth to be controlling here.
Nor can it justifiably be maintained that subsequent opinions in the federal system have limited application of Branzburg to the context of grand jury investigations. Such an analysis is unduly limited. The contention of Movants herein that the Second Circuit, for example, has interpreted the Branzburg decision to carry such a limitation misconstrues the meaning of the decision's language.
There can be little dispute that the common law recognized no privilege which would support a newspaper or reporter in refusing, upon proper demand, to disclose information received in confidence.
Such a privilege, if it exists, must grow out of the First Amendment free press guarantee. Quite appropriately, in this Court's view, the Supreme Court has recognized as component parts of that guarantee the freedom to publish without prior governmental approval,
a right of circulation,
freedom to distribute literature,
and the right to receive printed matter.
And most recently with the Supreme Court's decision in Branzburg, it may be said that a right to gather news has been explicitly acknowledged.
While acknowledging this corollary right, however, the Court rejected the claim that such a right implies a privilege to protect the identity of news sources. After citing numerous cases in which restrictions on the right to gather news have been sustained,
the Court classified the requirement to answer subpoenas and disclose sources as another instance of permissible restriction. The majority noted that "the evidence fails to demonstrate that there would be a significant constriction of the flow of news to the public if this Court reaffirms the prior common law and constitutional rule regarding the testimonial obligations of newsmen."
Thus, with respect to the claim of privilege, the Branzburg decision can in no wise be said to go further than to require "the striking of a proper balance between freedom of the press and the obligation of all citizens go give relevant testimony with respect to criminal conduct."
The moving parties in Branzburg sought a privilege, but the Court declined to grant it.
If then, the First Amendment right to gather news, affords no absolute privilege against the compelled revelation of news sources, this Court is hard put to understand how it may find such a privilege against the disclosure of confidential information relevant to a criminal trial. The Court's reasoning is this: despite the fact that the newsman's ability to gather news may be hampered if he cannot guarantee confidentiality, the Supreme Court has said that the right to gather news does not give him a First Amendment privilege to resist a demand by proper authority that he divulge a source's identity. What makes the need to withhold confidential information more compelling and therefore more deserving of constitutional protection? In the context of the matter now before the Court, at least, the need for a privilege can only be described as substantially less compelling than that asserted in Branzburg ; indeed, the Court is convinced that Branzburg here requires a finding of no privilege.
The present proceeding is linked to a criminal trial as opposed to a grand jury investigation. Where Branzburg denied a privilege in favor of the public interest in law enforcement, this Court denies a privilege in favor of the rights of an accused to a fair trial. The Court believes that while the public has a crucial interest in the investigation and punishment of criminal activity, it must have an even deeper interest in assuring that every defendant receives a fair trial. The Court, of course, expresses no opinion as to the guilt or innocence of any one or all of the seven defendants herein, but emphasizes again its commitment to a fair trial for all parties to this case. If impeachment evidence is available, it is critical that the defendants have access to it.
If the "striking of a proper balance" is required, as Mr. Justice Powell suggests, this Court will aways strike the balance in favor of due process. The "heart of the claim" in Branzburg as stated by the Court was that "the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information."
That claim was rejected there, and it is rejected here.
Secondly, as in Branzburg, the Court is for the present unconvinced,
that a virtually impenetrable constitutional shield, beyond legislative or judicial control, should be forged to protect a private system of informers operated by the press to report on criminal conduct, a system that would be unaccountable to the public, would pose a threat to the citizen's justifiable expectations of privacy, and would equally protect well-intentioned informants and those who for pay or otherwise betray their trust to their employer or associates.
As with the system of informants used by law enforcement officers, control should remain in public, not private, hands.
It stands reason on its head to contend that justice is served when a prosecution witness, by private agreement with a newspaper reporter, may deny a defendant access to materials which contain prior statements of the witness, statements that possibly might be admissible into evidence to discredit or impeach that witness. For reasons known best to himself, Mr. Baldwin has elected to make statements to the press on the subject of the trial at which he will be called as a government witness. The Court fails to see why he should now be permitted to indirectly withhold those statements from the defendants. As stated by the Court in Branzburg, "Private restraints on the flow of information are not so favored by the First Amendment that they override all other public interests."
Mr. Baldwin is an important witness in this case and the defendants are in jeopardy of their liberty. The Court finds it difficult in such circumstances to institute a privilege protecting against the disclosure of confidential communications received from a known source.
Finally, the Court cannot distinguish the speculative nature of the harm that Movants anticipate will follow a denial of the motions to quash from the "consequential, but uncertain, burden on news gathering" which made the Supreme Court reluctant to extend protection.
The Movants have supplied several affidavits from distinguished newsmen
depicting the injury which it is predicted will descend upon newspapers should the Court enforce the subpoenas herein. Some assert that the press foresees greater danger in a requirement to produce confidential information than in a similar requirement to divulge the identity of a source. The Court is grateful to have the benefit of these views, and by its decision intends no disrespect to the expertise and sincerity of these affiants. Nevertheless, the Court remains convinced that the bulk of these arguments hit beyond the mark. The Court's decision "involves no restraint on what newspapers may publish or on the type or quality of information reporters may seek to acquire, nor does it threaten the vast bulk of confidential relationships between reporters and their sources.
Given the unique facts presented here, the Court expects that its decision will have little precedential value for defendants or prosecutors who might wish to subject newspapers to an abusive "flood of subpoenas." Nor is there any basis here on which parties in a criminal case might support a simply indiscriminate use of the subpoena power. Here we have a criminal trial in which a chief government witness, having been offered immunity from prosecution, has seen fit to give a lengthy and apparently comprehensive first person narrative account to newspaper reporters of the activities he will testify about at trial. It is known that the full interview has been tape recorded, that the witness has exacted a promise from the reporters that he may censor any publication of his statements, and that the witness has destroyed his copy of the tape recordings. The Court is requiring that the newspaper, now in possession of the only other known set of tapes, produce those tapes to give the defendants access to any impeachment evidence the recordings may contain.
Not only is an aggregation of comparable circumstances not likely to be repeated often in the future, but the entire situation evinces nothing but good faith on the part of the defendants. Furthermore, Movants have received the benefit of safeguards sought by their colleagues in Branzburg even though under that decision they are not entitled to such protection.
In addition to all this, Movants may be assured that restraint will characterize any use of the subpoenaed materials.
In view of the law relative to a newspaper or newsman's privilege, the Court cannot in good conscience go further than it already has to protect First Amendment principles in conflict with the rights of defendants in a criminal trial.
The motions to quash are denied, and Mr. Lawrence, having flaunted the order of the Court to produce the tapes in his possession thereby bringing disrespect upon the Court, is cited for contempt pursuant to 18 U.S.C. § 401 and Rule 17(g), F.R. Cr. P., and remanded to the custody of the Attorney General unless or until he purges himself of the contempt.