The U.S. Justice Department has asked a federal judge in Washington to keep sealed illegal wiretap recordings rooted in the Watergate scandal.
Responding to a Nixon historian's request for the wiretap information, DOJ lawyers in Washington said there is no First Amendment or public right of access to illegally obtained wiretaps.
The historian, Luke Nichter, is seeking access to information that was sealed in the 1972 prosecution of G. Gordon Liddy in U.S. District Court for the District of Columbia. Nichter’s request encompasses grand jury records, too. He is exploring the motive behind the break-in at the Watergate hotel in Washington.
DOJ lawyer Elizabeth Shapiro said in court papers (PDF) filed late Friday that federal wiretap laws do not allow “discretionary disclosures based on historical or scholarly interest.” She urged a trial judge here not to release wiretap information and grand jury records.
Federal law, Shapiro said, “makes such knowing disclosure a crime, and we are unaware of any court that has unsealed previously undisclosed illegal wiretap content for reasons of historical interest.”
DOJ’s legal team said the governing law was meant to safeguard “the privacy of innocent persons who have not consented to the interception of their communication.” One person who was recorded, R. Spencer Oliver, sued Nixon campaign officials and settled for an undisclosed amount, DOJ said. Oliver was in 1972 the executive director of the Association of State Democratic Chairmen.
Nichter, in his request for access to records, pointed to a ruling in U.S. District Court for the Southern District of New York in which a judge granted the press access to wiretap records in the Eliot Spitzer prostitution ring case.
U.S. District Judge Jed Rakoff’s ruling in favor of public access was overturned by a federal appeals court, DOJ said.
The government said it is not opposed to the release of some court papers that are sealed in the Liddy case. That information, DOJ lawyers said, includes bench conferences about evidentiary disputes and pretrial meetings in chambers.
“With the passage of forty years, these kinds of documents add to the historical record of the trial without negatively impacting on the administration of justice,” Shapiro said. “There is, accordingly, a public interest in their disclosure.”
Chief Judge Royce Lamberth of Washington’s federal trial court, who last year ordered the unsealing of President Nixon’s grand jury testimony, has not ruled on Nichter’s request for documents in the Liddy prosecution.
Lamberth released the Nixon grand jury testimony over the government’s objection, concluding that the historical value of the information trumped any lingering privacy concerns.
DOJ said Friday “the department continues to disagree that courts possess inherent authority to reach outside” the federal rule of criminal procedure that controls grand jury secrecy.
“Whether or not historical interest, as a policy matter, should be considered as a justification to release grand jury information where the need for secrecy demonstrably has waned, presents a question for legislators and policymakers, not for courts,” Shapiro said.
The Justice Department in October proposed changes to the grand jury secrecy rule to allow judges to release historically significant records after the passage of 30 years. But an advisory committee of the Judicial Conference of the United States rejected the DOJ proposal.