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In Re Petition of Geoffrey Shepard

July 29, 2011

IN RE PETITION OF GEOFFREY SHEPARD


MEMORANDUM OPINION & ORDER

Before the Court is Geoffrey Shepard's Petition for Order Directing Release of Transcripts of All Testimony Before Watergate Grand Juries [2]. As discussed below, Mr. Shepard seeks the release of sealed grand jury testimony as well as other categories of information, including sealed congressional and trial materials. Upon consideration of the petition, the entire record herein, and the applicable law, the Court will deny the petition for the reasons set forth below.

I.BACKGROUND

Mr. Shepard initially moved to intervene in In re Petition of Stanley Kutler, et al., 10-mc-547 (RCL), to oppose disclosure of the materials at issue in that case. On December 13, 2010, this Court denied his motion but stated that it would treat Mr. Shepard's filing as an amicus curiae memorandum. 10-mc-547 [13]. On February 1, 2011, Mr. Shepard filed a petition in the above-captioned case seeking the release of all materials that are now in or later come into the possession of the National Archives and Records Administration (NARA) relating to the Watergate scandal that have not heretofore been made public. This would include all materials from Watergate Grand Juries I, II, and III and related materials generated by the Watergate Special Prosecution Force (WSPF); all materials generated in connection with investigations, interviews, and hearings of the Senate Select Committee to Investigate Campaign Practices (Ervin Committee) and of the House Judiciary Impeachment Inquiry of Richard Nixon; and all materials generated in connection with the series of Watergate trials held before District Judges John Sirica and Gerhard Gesell, along with materials generated by the Circuit Court of Appeals for the DC Circuit and the United States Supreme Court in some eighteen appeals that resulted there from, along with that portion of materials relating to Book II of the Final Report of the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (Church Committee), The Growth of Domestic Intelligence: 1936 to 1976.

Petition 1, 11-mc-44 [2].

Mr. Shepard also moved to consolidate his case with the Kutler matter. 11-mc-44

[3]. While acknowledging that the Kutler petition "seeks the release of only the grand jury testimony of former President Richard Nixon," Mr. Shepard sought consolidation on the ground that "both petitions involve the same subject matter and the same legal issues." Id. at 1. Petitioners in the Kutler matter opposed Mr. Shepard's motion, arguing that "the Shepard petition, which seeks a huge quantity of information, calls for consideration of additional facts and different legal questions." Opp'n to Mot. to Consol. 1, 10-mc-547 [14]. The Court denied the motion to consolidate, explaining that the Shepard petition-which seeks a far broader range of records than the Kutler petition- "raises legal and factual questions that are unnecessary to its resolution of the Kutler petition." Order 2, 11-mc-44 [6].

II.DISCUSSION

On July 29, 2011, this Court issued a Memorandum Opinion and Order granting the Kutler petition. 10-mc-547 [22]. In so doing, the Court authorized the disclosure of President Richard Nixon's grand jury testimony and associated materials of the Watergate Special Prosecution Force (WSPF), subject to the review procedures of the National Archives and Records Administration (NARA). Thus, to the extent that the Shepard petition seeks the disclosure of President Nixon's testimony and associated WSPF materials, the Court will deny the petition as moot.

As noted above, however, the Shepard petition seeks a far broader range of records than the Kutler petition. Indeed, Mr. Shepard's principal argument in support of his petition is that "the release of any Watergate grand jury testimony should be done on an 'all or nothing' basis . . . so that all aspects of [Watergate] can be reviewed at the same time and in the same context." Petition ¶¶ 4--6 [2]. Mr. Shepard thus seeks the release of all sealed Watergate-related materials "that are now in or later come into the possession of" NARA.*fn1 His petition covers three categories of sealed information-grand jury, congressional, and trial materials. The Court will consider each category in turn.*fn2

A.Grand Jury Materials

Mr. Shepard seeks the release of all materials of the three Watergate grand juries, as well as related WSPF materials. 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. 295, 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). But the rule of grand jury secrecy is not without exceptions. In granting the Kutler petition to unseal President Nixon's grand jury testimony, this Court recognized that "special circumstances" may justify the release of grand jury materials outside the bounds of Rule 6(e). The Court found that the special circumstances exception, first applied in the Second Circuit, is well grounded in courts' inherent supervisory authority to order the release of grand jury materials. Moreover, the exception, by its very nature, applies only in exceptional circumstances, requiring a nuanced and fact-intensive assessment of whether disclosure is justified.

In assessing the Kutler petition, the Court applied the factors enumerated in In re Petition of Craig, 131 F.3d 99 (2d Cir. 1997). These factors include:

(i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii) why disclosure is being sought in the particular case; (iv) what specific information is being sought for disclosure;

(v) how long ago the grand jury proceedings took place; (vi) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material-either permissibly or impermissibly-has been previously made public; (viii) whether witnesses to the ...


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