The Public Citizen Litigation Group, the legal arm of the Ralph Nader-founded watchdog organization, is spearheading a court challenge filed earlier this month on behalf of a group of leading Watergate historians to win the release of former President Richard Nixon’s 1975 grand jury testimony.
Federal grand jury testimony is extremely secret. While not classified (a label that applies only to national security-related information from the executive branch), it’s hard to think of a category of government information that is more closely held. Just ask Lance Williams and Mark Fainaru-Wada, the San Francisco Chronicle reporters who narrowly escaped 18-month prison sentences for reporting based on grand jury testimony in the BALCO steroids scandal.
And while there are legitimate interests in preserving the confidentiality and privacy of grand jury testimony to protect the orderly proceeding of trials, once the events covered by the testimony cross into history, it just seems more than a little silly.
Even so, there have only been the slightest cracks in the wall protecting grand jury testimony. In 1995 Gary May, a historian, won access to files surrounding the trial of William Remington, who was murdered in prison after he earned a red scare era perjury conviction in connection to charges he had passed information to a Soviet spy. May’s resulting book was a startlingly detailed account of Remington’s trial and misdeeds, one that was only possible after a federal court agreed, in another case waged by Public Citizen, that he be allowed to get a look at the files. (Fun fact: U.S. Attorney Rudolph Giuliani argued the case against disclosure.)
A similar suit seeking the grand jury testimony of another government official who fell prey to McCarthyism—Treasury official Harry Dexter White—was lodged shortly after May’s victory. It failed at both the district and appellate level. But in its decision affirming the district court’s denial, the Second Circuit laid out nine factors courts should consider when weighing such a request, leaving the door open to future disclosures if the person seeking the records could successfully convince the court on a series of rather subjective questions like whether enough time had passed since the documents were created, whether or not the disclosures would adversely affect the testifier or others potentially named in the transcripts, and so on. And the panel noted that it was possible that one day a court would agree to the requested release. That’s more or less what happened: just a few years later, in 1999, a second attempt by a broader group of historians for files surrounding the trial of Alger Hiss netted the White transcripts and many others in decision by a district court judge weighing the Second Circuit’s factors.
While the Nixon request will, necessarily, be lodged in a Washington, DC-based court that is not obligated to follow the New York-based Second Circuit’s precedent, that decision could provide a roadmap for the judge’s decision.
As John Dean, once Nixon’s White House Counsel, points out in a highly readable summary in support of the historians’ effort, Nixon’s transcripts document the only time the president was asked to describe his actions in what is perhaps the nation’s greatest crime while under oath. According to a Time account published in 1975, Nixon was questioned for eleven hours over two days on topics including what he knew about the infamous 18 minute audio tape gap, and usage of the IRS as a tool to harass political opponents.
Dean writes that he would be “shocked” if the Obama Justice Department opposed releasing the testimony. In this case, Dean may be right, but in the past, the government lawyers have argued against disclosure of grand jury testimony not because of any fear of negative repercussions due to the release of particular information but out of concern over the weakening of the institution of the grand jury. That bureaucratic impulse—tended to by the very federal prosecutors corps which uses grand juries to earn indictments—may not be lessened, no matter who is in the White House.
Given the magnitude of the case, and its location in the Washington courts, where a great deal of historically interesting grand juries have been impaneled, it’s hard to see how a victory here wouldn’t be a big step towards opening other historically valuable grand jury transcripts. As Bruce Craig, the historian who unsuccessfully sought Henry Dexter White’s records in the precedent-setting case, pointed out in a 1998 journal article in The Public Historian recounting his tale, there’s something bizarre about the current lock and key nature of these records. Even America’s greatest national security secrets have dates under which the law expects them to be available for public access, and administrative procedures to request that they be released.
But when it comes to grand jury documents, the National Archives is charged with keeping them in perpetuity, even though there’s no way for the public to access them, ever, without the great expense and trouble of begging for them before a federal court.
It makes one wonder: what’s the point in keeping these records if no one will ever get to see them?