~c.;/ · Court now believes many of the redactions to be unnecessary. On transcript page 59, the marked section should only be redacted as follows: We had picked up that on Friday,

Case 1: 12-mc-0007 4-RCL Document 17 Filed 06/11/13 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FILED JUN 1 1 2013

Clerk, U.S. District & Bankruptcy Courts for the District of Columbia

IN RE: PETITION OF LUKE NICHTER ) )

ORDER

Action No. 12-mc-74 (RCL)

This Court issued, under seal and ex parte, an Order and Memorandum Opinion on May

13, 2013, directing that certain records associated with the case of United States v. Liddy be

unsealed. The Clerk of Court did not place in the docket entries of this case the filing of the

unredacted versions of the Order and the Memorandum Opinion under seal since they were both

issued ex parte. These unredacted documents should be docketed in the sealed record of this

case, but the documents should be maintained in the Court's vault, accessible only to government

counsel and the Court. The Court requested the United States to submit proposed redactions

before placing these materials on the public record. See Order, May 13, 2013, ECF No. 16. The

United States has now done so.

In addition to the proposed redactions, counsel for the United States alerted the Court to a

factual error in the Court's Memorandum Opinion. The Court has deleted the factual error in the

redacted version of the Memorandum Opinion attached to this Order.

Accordingly, the redacted versions attached hereto shall be filed on the public record of

this case, and shall be made available electronically in the "unsealed opinions" category on the

Court's public website.

SO ORDERED this I Oth day of June 2013 .

~c.;/_~ ROY E C. LAMBERTH Chief Judge United States District Court

Case 1:12-mc-00074-RCL Document 19 Filed 06/11/13 Page 1 of 5

FILED JUN 1 1 2013

Clerk, U.S. Distnct & Bankruptcy 1 1~ Courts for the District of Columbia ,.;- ·

1

} I~

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

f\ ~ ul '" 0 (IJf

IN RE: PETITION OF LUKE NICHTER ) ) Action No. 12~mc- (RCL)

(UNDE EAL)

EX PARTE ORDER

Now before the Court is the petitioner's Motion [lJ to unseal records associated with

United States v. Liddy, District Court docket number 1827-72. Upon consideration of the

Motion [1], the government's Opposition [10], petitioner's Reply [11], the government's ex

parte Surreply [notice of submission at docket entry 14 ], the applicable law and for the reasons

set forth in the Court's accompanying Memorandum Opinion issued this date, it is hereby

ORDERED that the government docket its sealed Surreply along with all attached

exhibits; it is

FURTHER ORDERED that the government shall, within 30 days, prepare a redacted

version of its Surreply for public release; it is

FURTHER ORDERED that the Clerk of Court will release the redacted and unsealed

version of the Court's accompanying Memorandum Opinion, attached hereto; it is

FURTHER ORDERED that the Affidavit of Kevan T. Hunt (Box I, Folder 1)1, the

daughter of E. Howard Hunt, found behind Tab A of the government's Surreply shall be

unsealed. However, as this document contains personal information relating to the Hunt family,

the National Archives and Records Administration ("NARA") shall make appropriate redactions

to protect the personal privacy of living individuals within thirty days; it is

1 The Box and Folder numbers represent the archival label for the described document, and describe the original location of the documents in the boxes held by the National Archives and Records Administration.


FURTHER ORDERED that the Transcript of Grand Jury Proceedings Dated

(Box 1, Folder 2) found behind Tab B of the government's Surreply shall remain sealed; it is

FURTHER ORDERED that the Letter to the Honorable John J. Sirica from Charles E.

Law, Sr., M.D. (Box 1, Folder 3), found behind Tab C of the government's Surreply, which has

already been unsealed and redacted by NARA to protect the Hunt family's privacy shaH remain

redacted until such a time as NARA deems it appropriate to remove the redactions; it is

FURTHER ORDERED that the January 5, 1973, Transcript of Proceeding (Box J,

Folder 6), found behind Tab D of the government's Surrcply, which has already been unsealed

but has been redacted to remove contents of the illegal wiretap, shall be modified in the

following manner: consistent with the Court's analysis, the names of those overheard on the

wiretap shall be made public, but no other information constituting "content" as defined by 18

U.S.C. § 251 0(8) shall be released; it is

FURTHER ORDERED that the June 17, 1973, Transcript of Proceeding (Box 1, Folder

8), found behind Tab E of the government's Surreply, will remain partially redacted. The

transcript of the in camera hearing with Judge Sirica addressing the motion brought by aggrieved

parties to the illegal wiretap to quash the government's subpoena contains information rehited to

what Mr. Baldwin overheard during the illegal wiretap. However, the redactions shall be

modified in the following manner: consistent with the Court's analysis, the names of those

overheard on the wiretap shall be made public, but no other information constituting "content" as

defined by 18 U.S.C. § 2510(8) shall be released; it is

FURTHER ORDERED that the June 17, 1973, Exhibits Band C (Box 1, Folder 9),

found behind Tab F of the government's Surreply, submitted in connection with the in camera

1 Exhibit A. a six-page summary of Alfred Baldwin's testimony in a civil suit brought by the Democratic National Committee, is publicly available on NARA 's website.


proceedings of that date, be dealt with as follows: Exhibit B, a partially redacted FBI form

documenting an interview with Alfred Baldwin, be WlSealed but will remain redacted as it

contains information obtained from illegally intercepted conversations. However, the redactions

shall be modified in the following manner: consistent with the Court's analysis, the names of

those overheard on the wiretap shall be made public, but no other information constituting

"content" as defined by 18 U.S.C. § 2510(8) shall be released. Exhibit C, consisting of portions

of~nd jury testimony, shall remain under seal; it is

FURTHER ORDERED that the Transcript of Alfred Baldwin's interview with the Los

Angeles Times (Box 1, Folder 13), found behind Tab G of the government's Surreply, shall be

minimally redacted in accordance with Title III. Chief Judge Bryant unsealed the transcript in

1980, but left certain portions redacted. See United States v. Liddy, Order, Oct. 3, 1980. The

Court now believes many of the redactions to be unnecessary. On transcript page 59, the marked

section should only be redacted as follows:

We had picked up that on Friday, we didn't know who but from listening to the conversation we knew it was -- McCord had it tuned to 118. He said: this is it. He said, you listen for a while and I listened and heard the first indication that whoever was talking was having - · On page 61, the section marked should only be redacted as follows:

~ecretarics would get on the phone and say-----· I guess everybody thought - had the only private phone in the while place --- after listening to several conversations I immediate [sic] wanted to go across the street and -----we started as soon as I got up in the morning.

On page 62, the section marked should only be redacted as follows:

Yes. we were concerned about McGovern because we will get into some other stuff that occurred about the telephone lines--but the main thing, the problem, it is hard to really say because when - name would be mentioned, you know----this was in the paper, there was a conflict between McGovern and

Case 1:12-mc-0007 4-RCL Document 19 Filed 06/11/13 Page 4 of 5

O'Brien------ you see, what I mean -----the information we were getting didn't appear to be, you know, there was some strategy some personal ----- the other unit was shielded and they gave up on that. That is why they went back in June to get that unit.

The redactions appearing on pages 71 thru 72 should be removed; it is

FURTHER ORDERED that the December 15, 1972 Transcript of Proceeding (Box 1,

Folder 16}, found behind Tab H of the government's Surreply, which is unsealed and open, shall

remain partially redacted to protect the privacy of Mr. Hunt's living children; it is

FURTHER ORDERED that the January 8, 1973 Transcript of Proceeding (Box 1,

Folder 17), found behind Tab I of the goveffiment's Surreply, which is unsealed and open, shall



Folder 18), found behind Tab J of the government's Surreply, which is unsealed and open, shall



Folder 20), found behind Tab K of the government's Surreply, which has already been unsealed

and redacted by NARA to protect grand jury information in accordance with Federal Rule of

Criminal Procedure 6(e) shall remain redacted; it is

FURTHER ORDERED that the July 24, 1973 Transcript of Proceeding (Box 2, Folder

24), found behind Tab L of the government's Surreply, shall be-if it has not already been-

unsealed, and NARA's proposed redactions, necessary to protect grand jury information in

accordance with Federal Rule of Criminal Procedure 6(e), shall remain; it is

FURTHER ORDERED that the September 17, 1973 Transcript of Proceeding (Box 2,

Folder 27), found behind Tab M of the government's Surreply, which has already been unsealed


and redacted by NARA to protect grand jury information in accordance with Federal Rule of

Criminal Procedure 6(e) shall remain redacted; it is

FURTHER ORDERED that the Presentence Reports and Bureau of Prisons Evaluations

{Box 2, Folder 29), found behind Tab N of the government's Surreply, which contains reports on

Messrs. Barker, Gonzalez, Martinez, and Sturgis, shall be unsealed and made public. However,

NARA shall have 30 days to make appropriate redactions in order to protect the privacy of living

individuals; it is

FURTHER ORDERED that the Life Insurance Policy of G. Gordon Liddy {Box 3,

Folder 36), found behind Tab 0 of the government's Surreply, shall be unsealed. The policy was

assigned to the court to be applied against the criminal fine imposed as a result of his conviction.

However, NARA will make appropriate redactions to protect the privacy of Mr. Liddy, who is

still living.

SO ORDERED this 13th day of May 2013.

~c.~ ROY E C. LAMBERTH Chief Judge United States District Court

Case 1:12-mc-00074-RCL Document 18 Filed 06/11113 Page 1 of 14

FILED JUN 1 1 20t3

Clerk, U.S. District & Bankruptcy ~ Courts for the District of Columbl~ } 1;

UNITED STATES DISTRICT COURT '/'- 1 .. { f () _________ F_o_R_T_H_E_D_I_s_T_RI_c_T_~·· COLUMBIA LY w IN RE: PETITION OF LUKE NICHTER )

EX PARTE MEMORANDUM OPINION

Now before the Court is the petitioner's Motion [l) to unseal records associated with

United States v. Liddy, District Court docket number 1827-72. Upon consideration of the

Motion [1 ], the government's opposition [10], petitioner's reply [11], the government's ex parte

Surreply [notice of submission at docket entry 14],1 the applicable law and for the reasons set

forth below, the petition will be granted in part and denied in part.

I. BACKGROUND

Petitioner Luke Nichter, a professor at Texas A&M University, submitted a letter asking

the Court to unseal certain records associated with the Watergate scandal. Prof. Nichter would

like to determine "why the Watergate break-in occurred, who ordered it, and what the burglars

were looking for," and he believes the Court's files would resolve this historical mystery.

Nichter Ltr. 1, Sep. 6, 2010, ECF No. 1.2 He originally sought only documents at issue in United

States v. Liddy, 354 F. Supp. 208 (D.D.C. 1972), specifically records disclosing what Alfred C.

Baldwin, III, the individual tasked with monitoring the wiretap of the Democratic National

Committee, overheard. See Nichter Ltr. I, May I, 2009, ECF No. 1. Later, Prof. Nichter

1 Because the Court requested the government's Surreply ex parte and sealed, only a notice of submission appeared on the docket. 2 Professor Nichter's correspondence with the Court between May 2009 and November 2011 was consolidated and posted on the docket as ECF entry number one. When citing to Professor Nichter's various letters, the Court will use both the date of correspondence and ECF number.


requested that the Court to unseal the entire file in United States v. Liddy, criminal docket

number 1827-72.3 Nichter Email to Jeremy Baron, Nov. 22,2011, EFC No. 1.

The Department of Justice filed a Response to Prof. Nichter's petition agreeing that

certain files should be unsealed but objecting to the unsealing of documents in three specific

categories: (1) presentence reports and other documents implicating the privacy of living

individuals; (2) documents reflecting the content of illegally obtained wiretaps; and (3) grand

jury information. Prof. Nichter filed a Reply asking the Court to (a) immediately unseal all

uncontested materials and order the National Archives and Records Administration ("NARA") to

expeditiously review and release those records; to (b) hold in abeyance ruling on those

documents whose unsealing and release the government objected to; and to (c) order an

investigation into the extent of the breach of grand jury secrecy by Washington Post reporters

during the Watergate era. Nichter Rep\ y 1-2, ECF No. 11.

On November 2, 2012, the undersigned Judge granted in part and denied in part Prof.

Nichter's request. In rePetition of Luke Nichter, Misc. No. 12-74 (RCL), 2012 WL 5382733, at

*I (D.D.C. Nov. 2, 2012). The Court's order unsealed all District Court records that the

government did not object to unsealing. !d. The Court also ordered the Department of Justice to

submit, ex parte and under seal, copies of all District Court records it believed should remain

sealed. Prof. Nichter's request that the Court order an investigation into the breach of grand jury

secrecy during the Watergate era was denied. !d.

In accordance with that order, on November 30, 2012, the NARA released and made

available online approximately 950 pages of documents. On December 10, 2012, the Justice

Department submitted the requested surreply along with copies of documents it believes should

3 Professor Nichter also requests documents associated with D.C. Circuit docket number 73-1020. See Nichter email to Jeremy Baron, Nov. 22, 2011, ECF No. I. However, this Court has no jurisdiction over the D.C. Circuit's records.

2


remain under seal. The government argues that 1 5 sets of documents, marked as exhibits "A"

thru "0," should remain sealed-in whole or in part-because they disclose private, personal

information, would constitute a breach of grand jury secrecy, or would reveal infonnation

obtained by an illegal wiretap.

II. DISCUSSION

A. Presentence Investigative Reports and Other Documents Containing Personal Information of Living Individuals

After a defendant has pleaded guilty or been convicted, the Probation Office conducts a

presentence investigation and creates a Presentence Investigative Report ("PSR")4 to aid the

sentencing court in carrying out its function. See Fed. R. Crim. P. 32(c)-{d). The PSR must

contain, inter alia, an overview of the defendant's personal history and characteristics, including

any prior criminal record, the defendant's financial background, and family or personal

circumstances that might have affected the defendant's behavior. ld. 32(d)(2). In practice, PSRs

generally contain a summary of the facts and circumstances giving rise to the offense, an

assessment of the defendant's mental and physical health, and other background information

including the defendant's educational attainment, military service record, work history, history of

substance abuse, and a statement regarding the defendant's cooperation with authorities and

acceptance of responsibility. However, the PSR may not contain any confidential sources of

information, any information that, if disclosed, might result in physical or other harm to the

defendant or others, or any diagnoses that, if disclosed, might seriously disrupt a rehabilitation

program. Id. at 32(d)(3).

4 This Court uses the abbreviation "PSR" for Presentence Investigation Repons; however, other courts abbreviate the terms as "PSIR," see, e.g., United States v. Huckaby, 43 F.3d 135 (5th Cir. 1995), or "PSI," see, e.g., United States v. Gomez, 323 F.3d 1305 (lith Cir. 2003).

3


PSRs are presumptively confidential and the Court is only required to disclose them to

the defendant, his attorney, and the government.5 Id. 32(e)(2). However, PSRs are court

documents, and the district court may release them at its discretion. See, e.g., United States v.

Gomez, 323 F.3d 1305, 1307-08 (11th Cir. 2003) (per curiam). Because PSRs contain sensitive

information and because they do not have to conform to the rules of evidence and may contain

errors, 6 courts are cautious about disclosing them to third parties. They are generally disclosed

only under limited circumstances, typically when the third-party shows a special need. See U.S.

Dep 't of Justice v. Julian, 486 U.S. 1, 12 (1988). This reluctance is rooted in common sense and

policy-courts fear that making PSRs publicly available may have a chilling effect on

individuals whose information is contained in the reports, that errors and information about

uncharged crimes contained in PSRs may needlessly harm a defendant's reputation, that PSRs

may contain information gathered by the grand jury that is otheJWise secret, and that PSRs might

include facts obtained from confidential informants. United States v. Huckaby, 43 F.3d 135, 138

(5th Cir. 1995); see also United States v. Iqbal, 684 F.3d 507, 510 (5th Cir. 2012) (discussing

policy considerations).

The D.C. Circuit, in an unpublished opinion, adopted a "compelling need" balancing test

to determine when third-party release is appropriate. See United States v. Colwell, 304 Fed.

App'x 885, 886 (D.C. Cir. 2008) (citing United States v. Charmer Indus., Inc., 711 F.2d 1164,

1175 (2d Cir. 1983)); see also Huckaby, 43 F.3d at 138-39 (adopting the compelling need test

and noting that the district court had ''clearly balanced the desirability of publication over the

5 Of course, the court may disclose any part of or all of a PSR during the public sentencing hearing. 6 While Rule 32 allows the defendant to object to errors in the PSR and requires the Court to resolve any factual disputes concerning a PSR's accuracy, PSRs are "not usually rewritten to remove misinfonnation." United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995). However, mandatory disclosure to defendants was not codified in Rule 32 until 1974, after the presentence reports at issue here were created. United States v. Schlette, 842 F.2d 1574, 1580 (9th Cir. 1988) (citations omitted). Thus, it is very likely that defendants in this case never had the opportunity to review their presentence reports and object to any misinformation they might contain.

4


need for confidentiality"); United States v. Corbitt, 879 F.2d 224, 239 (7th Cir. 1989) (holding

that PSRs should only be released where a "compelling particularlized need for disclosure is

shown"). This test requires the party seeking disclosure to show a "compelling need for

disclosure to meet the ends of justice" that outweighs the privacy interests of the defendant and

the policy interests of the court. Colwell, 304 Fed. App'x at 886.

The Fifth Circuit in Huckaby determined that clarifying the public record justified

releasing a defendant's PSR. Huckaby, a state district judge in Louisiana, came under

investigation for tax evasion. Huckaby, 43 F. 3d at 136. His case received considerable local

publicity and the community was deeply divided over whether he should have been prosecuted at

all. /d. at 137. Some in the community, including civic leaders, felt that Huckaby was being

prosecuted because he was African-American. See id. After reading a portion of the PSR into

the record, Huckaby's sentencing judge concluded: "Because of the widespread misconceptions

about this case, I'm going to take the unusual step of filing the presentence report, together with

your objections, into the record, for anyone who is interested in the truth." Id. Notably, the PSR

included information related to uncharged crimes. /d. at 136 (although Huckaby was only

charged with one misdemeanor tax evasion count, his PSR stated that he failed to file federal and

state income tax returns for at least twelve years). Calling the district judge's actions "bold" and

"extraordinary," the Fifth Circuit blessed the district court's balancing of the competing interests

and noted that the district court acted in the best interest ofthe community. /d. at 139-40.

In the present case, the government argues that Prof. Nichter "has not demonstrated why

disclosure of ... [the PSRs in Liddy are] required to meet the ends of justice, or provided any

other reason why the public interest requires unsealing." Gov't's Resp. 8-10, ECF No. 10. The

Court disagrees. Prof. Nichter stated that his interest in the documents emanates from the fact

5


that he is "an American citizen and a stakeholder in our democracy." Nichter Reply 2, ECF No.

11.

The subject of Watergate has attracted enormous attention over the past 40 years. Some writers have been labeled anti-Nixon. Some worked for President Nixon. Some have been called conspiracy theorists. Other have been labeled revisionists.

The simple fact remains that-even some forty years after the break-in arrests led to the demise of the Nixon presidency. . . historians still have no definitive answers as to the rationale for the Watergate break-in .. . .

ld. It is clear to the Court that knowledge of all the facts and circumstances surrounding the

Watergate break-in, an event that led to the imprisonment of numerous Nixon administration

officials and the only resignation of a President of the United States, will help correct

misinformation and dispel myths and baseless conspiracy theories surrounding this sad episode

of American history. See id.

Releasing the PSRs also serves another compelling public interest required to meet the

ends of justice--publicizing actions that threatened the very nature of our democratic system of

government. Holding democratic office is a privilege of citizenship and shows society's trust in

the office holder; when that trust is broken, our democratic system of government suffers as a

consequence. Our history of open criminal trials and public identification of defendants puts

society on notice that crimes do not go unpunished and illegal acts cannot be hidden from the

community. In high profile public corruption cases in particular, the publication of court

records, even those that would normally remain under seal, places politicians and their allies on

notice that they will be held responsible for their actions.

The Liddy file contains four PSRs: those of Virgilio Gonzalez, Engenio Martinez,

Bernard Barker, and Frank Sturgis.7 These are found behind "Tab N" in the government's ex

7 The Court has asked the Probation Office to search its records for Messrs. Liddy, Hunt, and McCord's PSRs. The Court will consider releasing those PSRs if they become available.

6


parte submission. 8 After examining the PSRs in camera, the Court can find no obvious

information implicating grand jury secrecy or the identity of confidential sources. See Huckaby,

43 F.3d at 138. Messrs. Barker and Sturgis are deceased; therefore, the release of their PSRs

does not transgress upon their privacy interests. See United States v. Schlette, 842 F.2d 1574,

1580--81 (9th Cir. 1988) (holding that privacy interests implicated by disclosure of PSRs may be

mitigated in a given case and do not apply when the subject of the report is deceased). While

Messrs. Gonzalez and Martinez are still living, the public's interest in clarifying the historical

record and further identifying the filets that led to the resignation of President Nixon outweigh

their individual privacy interests.

Therefore the Court will order NARA to release all PSRs contained in the Liddy file.

However, because medical and psychological information of living individuals, including

Messrs. Gonzalez and Martinez, are included in the reports, and disclosure of this information

would provide no benefit to the public, the Justice Department, working with NARA, will have

thirty days to redact this information before releasing the PSRs. See Corbitt, 879 F.2d at 299

("(T]he court should limit disclosure to those portions of the report which are directly relevant to

the demonstrated need.").

Other documents containing personal correspondence and information relating to the

health and family circumstances of one or more of the defendants shall be unsealed. However,

NARA shall make appropriate redactions in order to protect the personal privacy of living

individuals.

8 Tab N also contains B=u of Prisons evaluations for Messrs. Barker, Gonzalez, Martinez and Sturgis. Those reports were prepared pursuant to 18 U.S.C. § 4208(B) (repealed 1984). All four reports have been partially redacted to protect family and medical history infonnation and have been released. Gov't's Reply 10-11, Notice at ECFNo. 14.

7


B. Release of Illegally Intercepted Wiretap Information

Mr. Nichter asks the Court to unseal records containing descriptions of information

obtained through Alfred C. Baldwin III's monitoring of the illegal wiretap placed at the

Democratic National Committee. Nichter Ltr. 2, May 1, 2009, EFC No. 1; Nichter Reply 4. He

argues that much of this information is likely already public, that Earl Silbert, the Assistant

United States Attorney who served as the prosecutor in Liddy, attempted to introduce this

material during trial, and that the public interest will be served by completing the historical

record. The government maintains that the Court may not release any information that discloses

the contents of an illegal wiretap. Gov't's Resp. 10-18.

The Court agrees with the government. Title III of the Omnibus Crime Control and Safe

Streets Act of 1968 ("Title III"), codified at 18 U.S.C. §§ 2510-2520, prohibits disseminating the

contents of an illegal wiretap. This prohibition applies to private conduct as much as to the

conduct of the government. Chandler v. U.S. Army, 125 F.3d 1296, 1298 (9th Cir. 1997). Under

the statute, wiretap "contents" include "any information concerning the substance, purport, or

meaning of that [intercepted] communication." § 251 0(8). No public or historical interest

exception allowing disclosure exists. Nor does Prof. Nichter or the public have a First

Amendment right to access documents containing illegally obtained wiretap information.9

9 Professor Nichter cites Judge Rako.trs opinion in In the Matter of Application of the New York Times Company 10

Unseal Wiretap & Search Wa"ant Materials ("Spitzer f'), to support his application for the release of documents. Nichter Letter 1-2. However, Spitzer I is inapposite. In that case, Judge Rakoff acknowledged that Title III governed access to wiretap applications, but found that the right of access to judicial records-records related to the government' s investigation of the Emperor's Club V.I.P. , a prostitution and money laundering ring whose clientele included former New York Governor Eliot Spitzer-<>utweighed the government's competing interests. Spitzer I, 600 F. Supp. 2d. 504, 505--09 (S.D.N.Y. 2009). However, the Second Circuit reversed Judge Rakoff, holding that Title lll supersedes any conunon law or First Amendment right of access to judicial records. In the Matter of Application of the New York Times Company to Unseal Wiretap & Search Wa"ant Materials ("Spitzer II"), 577 F.3d 401,405, 411 (2d Cir. 2009). Moreover, Spitzer 1 dealt with access to a legally submitted wiretap application as opposed to the contents of an illegal wiretap.

8


However, the names of those overheard on the illegal wiretap may be released. Section

2510 was specifically amended in 1986 to "exclude from the definition of the tenn 'contents' the

identity of the parties or the existence of the communication." S. Comm. on Judiciary,

Electronic Communications Privacy Act of 1986, S. Rep. No. 99-541, at 13 (1986), reprinted in

1986 U.S.C.C.A.N. 3555, 3567. The Senate report noted that the change "distinguishes between

the substance, purport or meaning of the communication and the existence of the communication

or transactional records about it" Jd. Therefore, to the extent wiretap information is not

otherwise sealed because it appears in grand jury documents, the names of those overheard on

the illegal wiretap shall be released. 10

Absent future congressional action allowing the disclosure of illegally obtained wiretap

infonnation that is historically significant, this Court bas no authority to release any information

that would identify the contents of the wiretaps in question. Therefore, Prof. Nichter's request

for documents identifying the contents ofthose wiretaps will be denied.

C. Grand Jury Information

The Liddy file also includes transcripts of. and infonnation obtained during. grand jury

proceedings. Specifically, behind Tab B is the transcript ofthe grand jury's

proceeding. The 12-page transcript is a record of deleted by Court Assistant United States

Behind Tab F are documents

submitted in camera on June 17, 1973 ("Exhibits B and C"). Exhibit C consists of portions of

10 The Court recognizes that releasing the names of aggrieved parties to an illegal wiretap is unusuaL Indeed, judicial policy counsels against routinely releasing such information because the identities of individuals whose privacy was illegally breached should be protected. EV!:ll unda FOIA. 1he Court routinely allows such infonnation to be redacted. C.f. Queen v. Gonzales, Civ. No. 96-1387 (JAR), 2005 WL 3204160, at •s (D.D.C. Nov. 15, 200S) (holding that the FBI's appropriately applied FOJA Exemption 3 to withhold 1he identities of individuals o~ on a wiretap). However, given the historical relevance of the current petition combined with the fact that some if not all of 1he targets of the wiretap have been publically identified, see, e.g., Wells v. Liddy, 37 Fed. App'x 53 (4th Cir. 2002), the Court deems disclosure appropriate in this unique instance.

9


January 24, 1973, which includes grand jury witness names. Where the fact of a witness's grand

jury testimony was introduced or made public, NARA has left that name unredacted. Gov't's

Surreply 9. However, NARA redacted portions of this document that would reveal a witness or

potential witness's appearance that was not previously public. ld. Behind Tab Lis the transcript

of a proceeding held in Judge Sirica's chambers at approximately 2:00p.m. on July 24, 1973.

This transcript contains limited redactions, which NARA believes are necessary to comply with

Federal Rule of Criminal Procedure 6(e). /d. at 10. Behind Tab M is the transcript of a

proceeding held in Judge Sirica's chambers at 10:00 a.m. on September 17, 1973. It contains

one very limited redaction related to grand jury testimony.

Prof. Nichter asks the Court to release this information in accordance with this Court's

decision in In rePetition of Kutler, 800 F. Supp. 2d 42, 43 (D.D.C. 2011). Nichter Reply 5.

Prof. Nichter also speculates that some of the information contained in the Court's grand jury

files has already become part of the public record. ld. at 3; see also id. Exhibits A-C. 11 The

government objects to releasing any grand jury material not used at trial, arguing that "no statute

or rule provides for disclosure of grand jury information for reasons of historical interest."

Gov't's Resp. 18.

In In re Petition of Kutler, Prof. Kutter and several major historical groups petitioned this

Court to release the transcript of President Richard Nixon's grand jury testimony and related

materials of the Watergate Special Prosecution Force ("WSPF"). 800 F. Supp. 2d at 43. The

Justice Department objected on the same grounds as those raised here. Id. The Court

11 Attachment A is a copy of JeifHimmelman 's article, 11re Red Flag in the Flowerpot, published in New Y Oik Magazine on April29, 2012. Attachment B is a printout of seven pages of typed notes prepared by Carl Bernstein that Professor Nichter believes were made following his contact with a grand juror. These are available at http://nvmag.com/newslfeatureslben-bradlce-z-memo-20 12-51. Attachment C comprises pages 201-210 of Jeff Hinunelman's book, "Yours in Truth, A Personal Portrait of Ben Bradlee" published by Random House in 2012.

10


determined that grand jury secrecy, codified by Federal Rule of Criminal Procedure 6(e), "is not

without exceptions."12 Id. at 44. The Court found that historical interest could trigger the

"special circumstances exception," which is grounded in the court's inherent supervisory

authority over court records. !d. at 47-48. The non-exhaustive list of factors that a court must

consider before releasing grand jury records based on the special circwnstances exception

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 grand jury proceedings who might be affected by disclosure are still alive; and (ix) the additional need for maintaining secrecy in the particular case in question.

!d. at 47-48 (citing In rePetition of Craig, 131 F.3d 99, 106 (2d Cir. 1997)). After balancing

these factors, the Court concluded that releasing President Nixon's grand jury testimony was

justified. See id. at 48-50.

While the materials here might be of historical significance, the facts of this case are

quite different from those in KutZer and weigh against disclosurc. 13 In Kut/er, only President

12 The government disagrees with the Court's analysis in In re Kut/er and believes that Court may not look beyond the plain language of Federal Rule of Criminal Procedure 6(e) when deciding whether to release grand jury materials. Gov't's Resp. 18-23. For reasons expressed in In re Kutter, the Court believes that it does, indeed, have the authority to look outside Rule 6(e) and will apply the same balancing test here. See In rePetition ofKutler, 800 F. Supp. 2d 42,44-48 (D.D.C. 2011). 13 The government notes that a "consortium of historical associations and Watergate scholars" joined Professor Kutler's petition and it asserts that Prof. Nichter's petition lacks such "broad-based and unified support." Gov't's Resp. 24. The nature and number of the parties seeking disclosure is certainly an important factor for the Court to consider. However, the simple fact that Professor Nichter's request was not joined by other parties does not mean that his request lacks the support of historians and other groups interested in the Watergate scandal. The "unified support" evident in Kutler may reveal as much about Professor Kutler's personal connections and outreach efforts as it does about the "broad-based" interest in the documents. The relevant inquiry is not the number of parties seeking disclosure but the requester's association with and intended use of grand jury materials. In both these cases, the parties seeking disclosure were ultimately interested in learning and exposing as much information as possible about a scandal that rocked the foundations of American democracy.

I I


Nixon's testimony was at issue, the fact that he testified before the grand jury was well known,

and his death in 1994 vitiated at least some of the privacy interests protected by grand jury

secrecy. See id at 49. Although the information sought by Pro£ Nichter is more than forty years

old, at least one of the subjects of grand jury testimony---is still living and these

documents should remain sealed to protect his privacy. It is also possible that other

individuals-grand jurors and witnesses-named in the materials are still living. Revealing the

names of Watergate grand jurors and grand jury witnesses could bring these individuals or their

families unwanted media attention. If interviewed, living former grand jurors and witnesses may

divulge information constituting a further breach of grand jury secrecy. 14

Prof. Nichter speculates that at least some of the information contained in the sealed

documents "has already become part of the public record." Nichter Reply 3.

Rule 6(e)(6) requires that "[r]ecords, orders, and subpoenas

relating to grand-jury proceedings" remain sealed only "to the extent and as long as necessary to

prevent the unauthorized disclosure" of grand jury matters. Material can '"los[ e) its character as

Rule 6(e) material,"' when it has been disclosed by a party and widely disseminated by the

media. In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007) (quoting

In rc North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)) ("Although not every public disclosure waives

Rule 6(c) protections, one can safely assume that the 'cat is out of the bag' when a grand jury

witness . . . discusses his role on CBS Evening News.").

14 Disclosure may be appropriate following the death of all persons named in the grand jury materials. The Court would also reconsider its ruling if it was presented with evidence that the named individuals bad consented to release.

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Thus, releasing the

Transcript of the grand jury's proceeding (found behind Tab B) would reveal

information that remains secret to this day.

Moreover, Prof. Nichter seeks information related to the motivation behind the Watergate

break-in. Nichter Ltr. 1, Sep. 6, 2010, ECF No. J. After reviewing the grand jury materials in

camera, the Court does not believe the information contained therein would help resolve any

ambiguities in the historical record or bring Prof. Nichter any closer to solving the questions he

presents. After weighing the Craig factors, the Court determines that the calculus falls in favor

of the government's position and will not unseal any grand jury materials.

III. CONCLUSION

Prof. Nichter's quest to discover the ultimate truth behind Watergate is laudable.

Unfortunately, the law does not allow the Court to release all the requested information. The

Court will unseal the PSRs and some personal documents but will allow NARA to make

appropriate redactions. Only the names of individuals overheard on the illegal wiretaps will be

unsealed. The Court will likewise order that grand jury materials remain under seal. An Order

consistent with this Memorandum Opinion shall issue this date.

SO ORDERED this 131b day of May 2013.

~~ RO CE C. LAMBERTH Chief Judge United States District Court

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