A Lament on Grand Jury Secrecy
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President Nixon meets with Bob Haldeman on September 14, 1970. Image: White House Photo Office Photographs, Richard Nixon Presidential Library and Museum, College Park, MD and Yorba Linda, CA (Wikimedia Commons)

In his book Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General (2013), Bob Bork made the following observation:

As I slowly realized, the unspoken rule was that Nixon was not to win any cases. That’s not to say that the office of the presidency did not win any cases, for it certainly did. But the closer any particular case got to Richard Nixon the person, the quicker it was rejected.

This was recently reaffirmed by D.C. District Court Chief Justice Beryl Howell’s dismissal of my petition to unseal certain Watergate grand jury records. Her order, based on the recent D.C. Circuit Court decision in McKeever v. Barr, said,

the petitioner is not entitled to these materials. McKeever held that Federal Rule of Criminal Procedure 6(e)’s exceptions to grand jury secrecy are “exhaustive” and are the product of “a carefully considered policy judgment by the Supreme Court in its rulemaking capacity, and by the Congress,” which district courts may not “circumvent” or “disregard” by invoking “inherent authority” over grand jury materials.

The McKeever decision is in apparent conflict with earlier decisions by the Second and 11th Circuits, who have fashioned an inherent authority for judge-made exceptions to grand jury secrecy in cases of historic significance.

Only time will tell which version will prevail, but it is the back-story within the District of Columbia itself that is quite troubling for those who believe in the even-handed administration of justice.

You see, there are two earlier decisions within the District that are apparently overruled by McKeever — and yet this was done without any real discussion or analysis by the Circuit Court.

The first case arose when Watergate defendants John Mitchell and Bob Haldeman challenged the propriety of the grand jury, submitting a report to Chief Judge John Sirica and asking that it (along with an accompanying briefcase filled with additional grand jury materials) be transmitted under seal to the House Judiciary Committee, which was then considering President Nixon’s impeachment.

Judge Sirica had been approached secretly by prosecutors in advance: See Philip Lacovara memo of February 7, 1974, urging such an ex parte meeting and Leon Jaworski memo of February 12, 1974, describing that meeting. It is little wonder, then, that he found he had the authority to do this and ordered transmittal of what has become known as the “Road Map.” Sirica’s action was affirmed on appeal by the D.C. Circuit Court sitting en banc in Haldeman v. Sirica (1974).

There matters stood (again, within the District) until 2011, when historian Stanley Kutler and some 30 other professors petitioned Chief District Court Judge Royce Lamberth to unseal Richard Nixon’s grand jury testimony, which had been taken over three days beginning on July 25, 1975 — almost a year after he had resigned as president. Kutler urged the D.C. Court to fashion an exception to grand jury secrecy rules set forth in Federal Rule of Criminal Procedure 6(e), based on “historic significance,” as had been done in several decisions by the Second Circuit (which had unsealed grand jury testimony by Julius and Ethel Rosenberg, as well as by Alger Hiss). Although this disclosure was opposed by the Department of Justice — as well as by myself, in an amicus brief — Judge Lamberth ruled in favor of the Kutler petition.

Note that Judge Lamberth’s 2011 action is in direct conflict with the D.C. Circuit Court’s 2019 McKeever decision — and yet that decision (let alone the very same D.C. Circuit Court’s 1974 decision upholding the transmission of the “Road Map”) is hardly mentioned in the Circuit Court’s McKeever opinion.

The Kutler Petition also is what triggered my own involvement. This was summarized in the Joint Status Report, filed earlier this week (on August 14, 2019), before current Chief Judge Beryl Howell.

Petitioner’s Position

  1. Mr. Shepard disagrees and believes a little background is in order to clarify his position. He first became involved in response to the petition filed in this court by Stanley Kutler on September 8, 2010 (IN RE PETITION OF STANLEY KUTLER, ET AL, Misc. Action No. 10-mc-547 (RCL), seeking the release of Richard Nixon’s grand jury testimony, which had been taken over three days, beginning on July 23, 1975. Petitioner Shepard sought to intervene in that case in order to oppose its unsealing. His position was two-fold: First, as sick and demoralized as Richard Nixon must have been at this point, he knew one thing for certain — and that was that his testimony would remain sealed forever. Second, that what was sauce for the goose should be sauce for the gander: If Nixon’s grand jury testimony was to be unsealed “for reasons of historic importance” then so also should be all of the other Watergate grand jury testimony. To prevent the response that such a motion was not pending before the court in the Kutler petition, Shepard filed a separate petition seeking to unseal vast quantities of Watergate material, including (in addition to testimony from all three Watergate grand juries) internal documents of the Ervin Committee and the House Judiciary Committee’s Impeachment Inquiry (both of which have been sealed for fifty years), as well as the internal documents of the Church Committee (which are likely to remain sealed forever). Shepard also asked that his petition — Misc. Action No. 11-mc-44 (rcl) — be consolidated with Kutler’s, such that the unsealing of all Watergate materials be before the court at the same time and in a single case. Chief Judge Lamberth disagreed: He ruled against consolidation, but agreed to treat Shepard’s petition as an amicus brief, and denied Shepard’s expansive petition as overly broad, but gave him leave to resubmit a more limited request.
  2. Judge Lamberth then agreed with the Kutler petition and ordered the National Archives to unseal Nixon’s testimony — due to its historic interest. For its part, the Department of Justice chose not to appeal Lamberth’s decision — a decision which is now totally undermined by the Circuit Court’s decision in the McKeever case. Nixon’s grand jury testimony was released to the public on November 10, 2011.
  3. Shepard’s narrowed Petition, however, remained pending and it is that Petition which is now before this Court. Here is its justification: Documents from the files of the Watergate Special Prosecution Force, released by the National Archives in response to Shepard’s FOIA requests, suggest the special prosecutors informed Watergate grand jurors in January or February, 1974, that they could show that Richard Nixon had personally directed the payment of “hush money” to E. Howard Hunt and that he had done so on March 21, 1973, shortly after learning of Hunt’s demands from his counsel, John Dean. In response to prosecutors’ representation, the Watergate grand jury named Nixon an unindicted co-conspirator in the Watergate cover-up case indictment, dated March 1, 1974. The effect, when this action became public, was devastating to the President and a major contributor to his ultimate downfall. What makes this so fascinating is that, when prosecutors sought to prove this allegation during the course of the cover-up trial, with their witnesses under oath and subject to cross-examination, their testimony showed instead how the prosecutors’ accusation of Nixon’s personal wrongdoing, which had been made in secret to the grand jurors, could not have occurred as described. Since Nixon’s defense team (of which Petitioner Shepard was a part) never knew of the accusation in the first place, they had made no attempt to refute. The result is that the secret, but erroneous, accusation which destroyed the Nixon presidency simply disappeared. It has been Petitioner Shepard’s goal for many years that this clear prosecutorial abuse be reviewed by this Court and become known to the American public.
  4. The sequence of these events is described in detail in Chapter 5 of Petitioner’s book, The Real Watergate Scandal, Collusion, Conspiracy and the Plot that Brought Nixon Down (Regnery, 2015). The issue remains of interest even today:  Here is the link to Petitioner’s recent essay on grand jury secrecy, which describes the judicial and prosecutorial abuses that led to the Road Map’s transmittal to the House Judiciary Committee: https://spectator.org/grand-jury-secrecy-and-jerry-nadler/. In addition, here is a second link to Petitioner’s essay on the special prosecutors’ secret, but erroneous, allegations about President Nixon, which was published by The American Spectator this past Friday, August 9th, on the forty-fifth anniversary of President Nixon’s resignation: https://spectator.org/troubling-watergate-revelations-too-late-to-matter/.
  5. In sum, it is Petitioner’s contention that the special prosecutors’ secret, but erroneous, allegation that President Nixon had personally directed the “hush money” payment to Howard Hunt constitutes grand jury abuse on an epic scale. To further clarify his position: Petitioner does not seek the release of any witness testimony before the Watergate grand jury. Indeed, prosecutors could produce no witness who could testify to their contention. Their case was, and remains today, entirely circumstantial. In this sense, McKeever is not at all controlling. This Court has the right — and the responsibility — to respond to credible allegations of grand jury abuse. Thus, he seeks the unsealing of any representation by the special prosecutors concerning Richard Nixon made to grand jurors during January and February, 1974. Petitioner believes, if such records exist, they will show a level of prosecutorial abuse, not only unprecedented in our history, but perhaps actionable as a matter of law. It is the apparent prosecutorial abuse that is crucial to unseal.

My own Petition (having lingered without disposition for some eight years) was dismissed by Chief Judge Howell the same day the above Joint Status Report was filed. Thus, the law of grand jury secrecy within the District of Columbia, at least as interpreted by the current Chief Judge, is that judges are without authority to unseal grand jury material, other than on the basis of exceptions contained in Rule 6(e) — and yet in Nixon’s case, the Road Map’s transmittal and the release of his grand jury testimony had been blessed by two of her predecessors as Chief Judge: John Sirica and Royce Lamberth.

I don’t really care which it is: Either judges have the inherent authority to unseal otherwise secret grand jury materials or they don’t. Perhaps at some future point, in a case not involving Richard Nixon, another Chief Judge will distinguish McKeever and find that judges do have the right — and perhaps even the obligation — to review otherwise secret grand jury materials that are the subject of credible claims of prosecutorial abuse.

The law needs to be consistently applied. The cry during Watergate was that “No man is above the law.” It was and remains true, but those of us who believe in the Rule of Law also expect its uniform application. Such has not been the case with Richard Nixon — as observed above by Bob Bork — and the recent dismissal of my Petition is yet another example. You might even say that Richard Nixon has been “Borked” again.

Geoff Shepard joined the Nixon Administration as a White House Fellow upon graduation from Harvard Law School and then served for five years on the White House Domestic Council. He also acted as principal deputy of Nixon’s Watergate defense team (thereby losing his first case!). More of his writings can be found on his website: www.geoff@geoffshepard.com.

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