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In Re Petition of Stanley

July 29, 2011

IN RE PETITION OF STANLEY KUTLER, ET AL.


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION & ORDER

Before the Court is petitioners' Petition for Order Directing Release of Transcript of Richard M. Nixon's Grand Jury Testimony of June 23--24, 1975, and Associated Materials of the Watergate Special Prosecution Force [1]. Upon consideration of the petition, the government's opposition [16] and reply thereto [19], the government's ex parte submission to the Court [21], and the applicable law, the Court will grant the petition for the reasons set forth below.

I.BACKGROUND

Stanley Kutler,*fn1 the American Historical Association, the American Society for Legal History, the Organization of American Historians, and the Society of American Archivists have petitioned the Court to unseal the transcript of President Richard M. Nixon's grand jury testimony from June 23 and 24, 1975. Kutler Petition 1, Sept. 13, 2010 [1]. Petitioners also seek associated materials of the Watergate Special Prosecution Force (WSPF), which are located at the National Archives and Records Administration (NARA) in boxes five, six, and seven of Record Group 460. Id. at 1--2. Petitioners have submitted the declarations of several scholars and other individuals who support their request. See id. at 4, ¶¶ 8--9 (listing the names and titles of declarants).

The government opposes the petition, arguing that the requested disclosure falls outside the exceptions to grand jury secrecy set forth in Federal Rule of Criminal Procedure 6(e). Petitioners base their request not on Rule 6(e), but on the Court's inherent supervisory authority to order the release of grand jury materials. Specifically, petitioners ask the Court to apply the "special circumstances" test articulated by the Second Circuit in In re Petition of Craig, 131 F.3d 99 (2d Cir. 1997).

The key events of Watergate-the details of which Mr. Kutler describes thoroughly in his declaration at Tab A-are well known. The content of President Nixon's grand jury testimony, however, is unknown to the public. Following his resignation and President Gerald Ford's pardon, the WSPF could not prosecute President Nixon for conduct related to the Watergate break-in and subsequent cover-up. The last of the three WSPF grand juries, however, remained open with respect to investigations of other potential targets. Declaration of Richard J. Davis (Tab C) ¶ 3 [1]. The WSPF secured an agreement to take President Nixon's testimony in connection with its open investigations and in a manner that would avoid litigation over such issues as executive privilege. Id. at ¶¶ 3--4. Prosecutors agreed to take his testimony near his home in San Clemente, California. Declaration of Julian Helisek (Tab B) ¶ 7 [1]. On June 23 and 24, 1975, President Nixon testified for eleven hours before two members of the grand jury and several WSPF attorneys. Id. Afterward, a full transcript of the proceeding was read to the remaining members of the grand jury in Washington, DC. Id. at ¶ 9.

Because the content of the testimony was sealed, the press reported primarily on the fact of it-in keeping with President Nixon's desire that the fact of his testimony be made public. Id. at ¶ 10. Press accounts indicate that the testimony covered at least four topics: (1) the 181/2 -minute gap in a White House tape recording of a conversation between President Nixon and H.R. Haldeman; (2) the alteration of White House tape transcripts submitted to the House Judiciary Committee during its impeachment inquiry; (3) the extent to which the Nixon Administration used the IRS to harass political enemies; and (4) the $100,000 payment from billionaire Howard Hughes to President Nixon's friend, Charles "Bebe" Rebozo. Id. at ¶ 11. A few pieces of information about the testimony's content have been reported-including, for example, President Nixon's statement in a 1977 interview that he did not erase the infamous 181/2 -minute segment- but little else is known to the public. Id. at ¶ 13.

On July 3, 1975, the third Watergate grand jury was dismissed. Id. at ¶ 29. It had handed up no indictments in the wake of President Nixon's testimony. Id. at ¶ 12.

II.LEGAL STANDARD

There is a tradition in the United States-one that is "older than our Nation itself"-that proceedings before a grand jury should remain secret. In re Biaggi, 478 F.2d 489, 491 (2d Cir. 1973) (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959)). This tradition is codified in Federal Rule of Criminal Procedure 6(e). See Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218--19 n.9 (1979). The rule of secrecy is justified by a number of objectives, including:

(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

United States v. Proctor & Gamble Co., 356 U.S. 677, 681--82 n.6 (1958) (quoting United States v. Rose, 215 F.2d 617, 628--29 (3d Cir. 1954)).

But the rule of grand jury secrecy is not without exceptions. These exceptions, which "have developed historically alongside the secrecy tradition," are codified in Rule 6(e)(3). In re Petition of Craig, 131 F.3d 99, 102 (2d Cir. 1997). Additionally, courts have recognized that-in the absence of an exception under Rule 6(e)(3)-there may be "special circumstances in which release of grand jury records is appropriate even outside the boundaries of the rule." Id. (quoting Biaggi, 478 F.2d at 494 (supplemental opinion) (internal quotations omitted) (holding that Rule 6(e) did not bar the public disclosure of grand jury minutes, even where no Rule 6(e) exception applied, when sought by the grand jury witness himself)). In Craig, the Second Circuit embraced the "special circumstances" exception first recognized by Chief Judge Friendly in Biaggi, holding that "permitting departures from Rule 6(e) is fully consonant with the role of the supervising court and will not unravel the foundations of secrecy upon which the grand jury is premised." Id. at 103. The Craig court explained that the special circumstances exception "is consistent with the origins of Rule 6(e), which reflects rather than creates the relationship between federal courts and grand juries." Id. (citing Pittsburgh Plate Glass Co., 360 U.S. at 399 (explaining that "Rule 6(e) is but declaratory" of the principle that the disclosure of grand jury materials is "committed to the discretion of the trial judge")). Judge Calabresi, writing for thecourt, noted that the Second Circuit was not alone in this view. See id. at 103 & nn.3--4 (citing In re Hastings, 735 F.2d 1261, 1268--69 (11th Cir. 1984) (describing courts' "inherent power" to authorize the disclosure of grand jury records outside of Rule 6(e))).

Indeed, there is ample support for the view that courts' authority regarding grand jury records reaches beyond Rule 6(e)'s literal wording. As the Advisory Committee stated in adopting the rule, Rule 6(e) "continues the traditional practice of secrecy on the part of members of the grand jury, except when the court permits a disclosure." Fed. R. Crim. P. 6(e) advisory committee's note (emphasis added). And several years after the rule was promulgated, the Supreme Court stated that "federal trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge. Our cases announce the same principle, and Rule 6(e) is but declaratory of it." Pittsburgh Plate Glass Co., 360 U.S. at 399 (emphasis added) (internal citations omitted). Consistent with this principle, it has been the initiative of courts-through the exercise of their inherent authority regarding grand jury records-that has shaped the development of Rule 6(e). Since its adoption by the Supreme Court in 1944, the rule has been ...


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