The U.S. Justice Department is proposing a change in legal rules that would give judges greater flexibility to release grand jury material of historical significance in cases that are at least 30 years old.
The request, presented in a letter from Attorney General Eric Holder Jr. to a committee of the federal judiciary’s policy-making body, comes after the government declined to challenge a judge’s order directing the government to release Richard Nixon’s grand jury testimony.
In Washington federal district court, DOJ lawyers objected to the release of Nixon’s testimony in the Watergate scandal that would end his presidency. The court’s chief judge, Royce Lamberth, ruled against the Justice Department, citing the public importance of the information.
The federal rule of criminal procedure that controls grand jury information does not recognize any point at which the secrecy of grand jury proceedings is terminated, Holder said in the letter (PDF).
“After a suitably long period, in cases of enduring historical importance, the need for continued secrecy is eventually outweighed by the public’s legitimate interest in preserving and accessing the documentary legacy of our government,” Holder said.
Holder said an amendment to the rule “would accommodate society’s legitimate interest in securing eventual public access to grand-jury materials of significant public importance, while at the same time defining the contours of that access.”
As it stands, the rule permits a federal trial judge to disclose grand jury information “in connection with a judicial proceeding” or at the request of a defendant who contends a case should be dismissed because of a matter that happened at the grand jury. Neither provision, Holder said, permits a third-party to obtain historically significant grand jury material.
The proposal, Holder said, limits the release of grand jury material that is determined to have permanent historical value. Those records are transferred to the National Archives and Records Administration as part of DOJ case files.
The amendment would apply to cases that are at least 30 years old. For those cases, the rule would allow federal trial judges to weigh the historical significance of the records against the need for continued secrecy.
For records that are 75 years or older, grand jury secrecy interests “would cease to be applicable,” Holder said, and the documents would be available to the public under the National Archives’ standards.
Holder said “no request could be entertained until the records have been in existence for 30 years.” Trial judges, the attorney general said, should evaluate requests on a case-by-case basis “to assess whether the records have true value to historians and the public and whether that value outweighs the secrecy interests in living persons.”
The proposed rule would require trial judges to make a finding that any grand jury material has “exceptional historical importance.”
The Nixon grand jury testimony is expected to be published Nov. 10.
Allison Zieve, director of the Public Citizen Litigation Group, which represented the plaintiffs in the request to unseal the Nixon grand jury testimony, argued secrecy no longer should apply to historically valuable records that are more than three decades old.
“The release of this testimony is great news for historians and anyone interested in the history of the Nixon administration,” Zieve said in a statement last month. “This key piece of history will be a valuable addition to the historical record.”