While everyone was distracted with other news last week, this happened:
(Reuters) - More than 36 years later, the secret grand jury testimony of President Richard Nixon in the Watergate scandal was ordered released on Friday [July 29] by a federal judge because of its significance in American history.
U.S. District Judge Royce Lamberth granted a request by historian Stanley Kutler, who has written several books about Nixon and Watergate, and others to unseal the testimony given on June 23 and 24 in 1975.
Lamberth ruled in the 15-page opinion that the special circumstances, especially the undisputed historical interest in Nixon’s testimony, far outweighed the need to keep the records secret. Grand jury proceedings typically remain secret.
You can download the opinion in In re Petition of Stanley Kutler, et al., No. 10-547 (U.S. Dist. Ct. D. D.C. July 29, 2011) in .pdf format here. The decision is straightforward enough, but it turns on an issue I personally hadn’t considered before, which is the extent to which the general rule of secrecy that envelops grand jury proceedings is riddled with exceptions.
As the District Court points out in the Petition of Kutler decision, the long-standing rule of grand jury privacy – which, the court notes, “is ‘older than our Nation itself,’” Petition of Kutler, Mem. op. at 3, citing 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)) – is codified in Rule 6(e) Federal Rules of Criminal Procedure. Specifically, Rule 6(e)(2)(B) essentially provides that no one involved in the grand jury process, including the grand jurors themselves, the government’s attorneys, court reporters, interpreters, and so forth, can disclose any “matter occurring before the grand jury.” Rule 6(e)(3), however, provides a limited list of exceptions to the general rule of grand jury secrecy, and I would have thought, prior to reading the Petition of Kutler decision, that that list of exceptions is exclusive.
But that’s not so, according to the District Court. Rather:
[C]ourts 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 [In re Petition of] Craig, [131 F.3d 99, 102 (2d Cir. 1997),] 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 the court, 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))).
Petition of Kutler, Mem. op. at 4. In fact, the District Court explained that as judge-made exceptions to grand jury secrecy were developed over time, Rule 6(e)(3) was amended to include those new exceptions – a strong indication that the list of exceptions set out in the rule is not meant to be exclusive but merely reflective of evolving trends. Petition of Kutler, Mem. op. at 5-6.
Ultimately, the District Court concluded that it could order the release of Nixon’s grand jury testimony because of its historical significance, even though there is no exception in Rule 6(e)(3) for the release of testimony on that basis:
[T]he reason disclosure is sought is particularly significant here. There is no question that the requested records are of great historical importance, and indeed, the government does not contest that fact. Petitioners focus on both the general historical importance of the Watergate criminal investigations and the specific historical importance of President Nixon’s testimony. To be sure, Watergate’s significance in American history cannot be overstated. Nearly forty years later, Watergate continues to capture both scholarly and public interest. The disclosure of President Nixon’s grand jury testimony would likely enhance the existing historical record, foster further scholarly discussion, and improve the public’s understanding of a significant historical event. See, e.g., In re Tabac, No. 3:08-mc-0243, 2009 WL 5213717, at *2 (M.D. Tenn. Apr. 14, 2009) (finding that the Craig factors, specifically historical importance, weighed in favor of unsealing grand jury testimony relating to James Hoffa); In re Petition of Nat’l Sec. Archive, No. 08-civ-6599, Summary Order at 1–2 (S.D.N.Y. Aug. 26, 2008) (finding that “substantial historical importance” justified the disclosure of grand jury records relating to Julius and Ethel Rosenberg, Abraham Brothman, and Miriam Moskowitz); Am. Historical Ass’n, 49 F. Supp. 2d at 297 (finding that historical interest and other relevant Craig factors outweighed the need to maintain the secrecy of grand jury transcripts relating to Alger Hiss); In re Petition of Gary May, No. M 11-189, Memorandum & Order at 3–4 (S.D.N.Y. Jan. 20, 1987) (finding that “undisputed historical significance” justified the disclosure of grand jury minutes relating to William Remington, a prominent public official accused of being a Communist during the McCarthy era).
Petition of Kutler, Mem. op. at 10-11.
It’s an interesting decision, and I think the District Court got it right. As an aside, however, I have to wonder whether, in the absence of last weeks debt ceiling hysteria, one particular aspect of the case would have gone unnoticed by Pres. Obama’s liberal critics. From Reuters’ report on the case last Friday:
The Obama administration’s Justice Department had opposed releasing Nixon’s testimony, citing the privacy interests of individuals named in the testimony, among other reasons.
But Lamberth said those privacy interests were minimal.
Far be it from me to look for reasons to spar with my fellow liberals, but given the left’s hypersensitivity to every decision the Obama Administration makes, I would not have been surprised to hear liberals cry foul over the Administration’s attempt to protect the secrecy of Nixon’s grand jury testimony, had those critics not otherwise been distracted last week.
For my part, I’m glad the testimony is going to be released … but I have absolutely no problem with the Administration going to court to fight for the general principle of grand jury secrecy. Because that’s how legal disputes are supposed to be resolved – with two (or more) sides advocating differing viewpoints, seeking to vindicate different interests, with the ultimate decision resting in the hands of an impartial decision-maker. As much as I might empathize with the petitioners who sought the release of Nixon’s grand jury testimony – and I do – it would be absurd to suggest that the was no other interest to consider in the matter.
To the contrary, the interest the Administration sought to vindicate is, in fact, worthy of vindication. As the District Court explained in Petition of Kutler:
The rule of [grand jury] 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)).
Mem. op. at 3-4.
So even though the release of grand jury testimony was probably the right result in this particular case, the general reasons for protecting grand jury secrecy are extremely important. Which means some one has to assert those reasons in court – in this case, the Obama Administration – otherwise, the courts might simply ignore them.
Sometimes it seems my friends on the left think the only thing that matters in litigation is the outcome, and not the vindication of crucially important legal principles. But that’s not how our adversary legal system works, and it’s not how it should work.
© 2011 David P. von Ebers. All rights reserved.