A federal judge in Washington is privately reviewing information about individuals named in the grand jury testimony of former President Richard Nixon as he addresses the privacy concerns the Justice Department asserted in urging the court to keep the testimony under seal.
American history and legal scholars sued in Washington federal district court last year to force the unsealing of the grand jury testimony Nixon gave in June 1975 following his resignation and subsequent pardon.
The Justice Department’s Civil Division said the historical significance of the testimony does not give courts authority to intrude on the secrecy of the grand jury. Additionally, the government said there are “substantial” privacy interests for those individuals named in the testimony.
Justice attorney Elizabeth Shapiro in March offered to provide the presiding federal trial judge, Royce Lamberth, “additional information regarding specific individuals named in the grand jury testimony” to aid his resolution of the dispute.
Lamberth, chief judge of U.S. District Court for the District of Columbia, in late May ordered the department to submit the information, and DOJ on Thursday obliged the request. The government provided the record to the court only, not the plaintiffs, who include University of Wisconsin Law School professor Stanley Kutler, who has written extensively about Nixon and Watergate.
Prosecutors took Nixon’s testimony via deposition in the San Mateo Loran Coast Guard Station to facilitate health concerns and his reluctance to travel, DOJ lawyers said in court papers.
Two members of the grand jury attended the deposition in California. Nixon’s testimony was later read to the full grand jury sitting in Washington. The National Archives and Records Administration maintains the record of the Watergate Special Prosecution Force, which closed its doors in 1977.
Shapiro said many of the participants in the testimony have substantial privacy interests that cut against public disclosure. Many of the Watergate investigations never led to indictments, she said.
“The judgment as to whether such an exception is wise or desirable is one best left to Congress,” Shapiro said.
The government also said it was concerned about providing ammunition for historians who argue historical significance is sufficient for the unsealing of grand jury testimony.
“The potential proliferation of requests to unseal based on historical interest—including requests for the wholesale release of entire grand jury investigations—opens the door to the erosion of grand jury secrecy based on nothing but the discretion of individual [courts],” Shapiro said.
Many federal indictments generate public interest, the government said, “yet neither the Supreme Court nor Congress has ever suggested that public interest alone merits an exception to grand jury secrecy.”
The plaintiffs in the suit include the American Historical Association and the American Society for Legal History. The plaintiffs argue, among other things, that the continued secrecy of the Nixon testimony serves no legitimate governmental purpose.
Lawyers for the plaintiffs, represented by the Public Citizen Litigation Group, also said in court papers in May that the court can deal with any privacy concern through redaction of names of specific people. The age of the records, the lawyers said, also favor public release.
"[T]he public testimony and subsequent publications of so many Watergate figures make any privacy interest minimal at best for most, if not all, of the people involved in the events," the plaintiffs' attorneys said.
Allison Zieve, director of the litigation group, today called Lamberth’s review of individuals named in the testimony a positive sign.
“The government’s argument is he has no authority to release anything,” Zieve said. “The fact that he wanted to look at this for privacy concerns involved makes me optimistic that he doesn’t agree with the government’s overall argument.”
On the other hand, Zieve said, “until he issues a decision on whatever he is thinking today he can change his mind tomorrow.”