In RE Petition of Luke NICHTER

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
IN RE PETITION OF LUKE NICHTER)
) Misc. Action No. 12-74 (RCL)
)
MEMQRANDUM OPINION & ORDER
Before the Court is Luke Nichter’s request to unseal certain categories of records
included in his Petition to Unseal Specified Documents Related to Unitea' States v. Lia’a'y,
Distlict Court criminal docket number 1827-72 [l]. On June 10, 2013, this Court granted
his petition in part and denied it in part. 949 F. Supp. 2d 205 (D.D.C. 2013). In a letter
dated June 24, 2013, Dr. Nichter requested the Court reconsider its ruling with respect to
two categories of documents _ the content of illegally obtained wiretaps, and grand jury
records. Nichter Ltr., June 24, 2013.l The Court will treat Prof. Nicter’s letter of June 24,
2013 as a motion to alter or amend the judgment of June 10, 2013. Fed. R. Civ. P. 59(e).
Upon consideration of the petition, the entire record herein, and the applicable law, the
Court will deny the petitioner’s motion for the reasons set forth below.
I. BACKGROUND
Petitioner Luke Nichter, a professor at Texas A&M University, submitted a letter
asking the Court to unseal certain records associated with the Watergate scandal. Prof. Nichter
1 Professor Nichter's correspondence with the Court between May 2009 and November 2011 was consolidated and
posted on the docket as ECF entry number one. His letters of June 24, 2013, April 28, 2015, and September 30,
2016 are likewise consolidated and docketed by separate order on this docket. When citing to Professor Nichter‘s
various letters and emails, the Court will use the date of correspondence The letter of June 24, 2013 also requests
production of documents turned over to the district court by John W. Dean, Ill on May 14, 1973. The Court will
treat that request as a new petition, which the Clerk will docket with a new miscellaneous number. The request for
the Dean materials will therefore not be addressed further in the present Order.
l
desired to determine “why the Watergate break-in occurred, who ordered it, and what the
burglars were looking for,” and he believed the Court's files would resolve this historical
mystery. Nichter Ltr., Sep. 6, 2010 [l]. He originally sought only documents at issue in
United States v. Lia’dy, 354 F. Supp. 208 (D.D.C. 1972), specifically records disclosing what
Alfred C. Baldwin, III, the individual tasked with monitoring the wiretap of the Democratic
National Committee, overheard. See Nichter Ltr., May 1, 2009 [l]. Later, Prof. Nichter
requested that the Court unseal the entire file in United States v. Liddy, criminal docket number
1827-72. Nichter Email to Jeremy Baron, Nov. 22, 2011 [l].
ln its response, the Department of Justice agreed that certain files should be unsealed,
but objected to the unsealing of documents in three specific categories: (1) presentence reports
and other documents implicating the privacy of living individuals; (2) documents reflecting the
content of illegally obtained wiretaps; and (3) grand jury information Prof. Nichter filed a
Reply asking the Court to (a) immediately unseal all uncontested materials and order the
National Archives and Records Administration ("NARA") to expeditiously review and release
those records; to (b) hold in abeyance ruling on those documents whose unsealing and release
the government objected to; and to (c) order an investigation into the extent of the breach of
grand jury secrecy by Washington Post reporters during the Watergate era. Nichter Reply 1-2
[11].
On November 2, 2012, the undersigned Judge granted in part and denied in part Prof.
Nichter‘s request. In re Petition of Luke Nichter, Misc. No. 12-74 (RCL), 2012 WL 53 82733,
at *l (D.D.C. Nov. 2, 2012). The Court's order unsealed all District Court records that the
government did not object to unsealing. Ia'. The Court also ordered the Department of Justice
to submit, ex parte and under seal, copies of all District Court records it believed should remain
2
sealed. Prof. Nichter's request that the Court order an investigation into the breach of grand
jury secrecy during the Watergate era was denied. Id.
ln accordance with that order, on November 30, 2012, the NARA released and made
available online approximately 950 pages of documents. On December 10, 2012, the Justice
Department submitted the requested surreply along with copies of 15 sets of documents it
believed should remain under seal because they would disclose private, personal information,
constitute a breach of grand jury secrecy, or reveal information obtained by an illegal wiretap.
On June 10, 2013, this Court granted in-part the unsealing of certain additional
documents implicated by Prof. Nichter’s petition. The Court ordered to be unsealed and
released the presentencing reports and some personal documents related to the Lida'y case,
subject to appropriate NARA redactions, 949 F. Supp. 2d at 210, as well as the names of
individuals overheard on the illegal wiretaps. Id. at 211. The Court denied Prof. Nichter’s
motion with respect to the substance of the illegally tapped conversations and the grand jury
materials, however, which remain under seal. Ia’. at 212-14.
Prof. Nichter subsequently sent three letters to the Court, one dated June 24, 2013,
responding to the ruling, another dated April 28, 2015 sharing correspondence Prof. Nichter
sent to the Department of Justice advocating for a change to Federal Rule of Criminal
Procedure 6(e); and a third on September 30, 2016, with which he included a notification of
subsequent authority related to the release of grand jury records.2
II. DI§CU§SION
The Federal Rules of Civil Procedure allow a petitioner to move to alter or amend
2 The letters of June 24, 2013 and September 30, 2016 also included attached exhibits that have no bearing on the
present motion.
3
a judgment within 28 days of that judgment Fed. R. Civ. P. 59(e). Such a motion “need
not be granted unless the district court finds that there is an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or
prevent manifest injustice.” Fox v. Am. Airlines, lnc., 389 F.3d 1291 , 1296 (D.C. Cir. 2004)
(quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.l996) (per curiam)). Because
the Court previously explained in-h,ill its basis for maintaining the secrecy of the requested
information and none of the Fox conditions applies to the relevant materials, the Court
denies Professor Nichter’s motion.
A. Release of Illegally Intercepted Wiretap Information
Prof. Nichter originally asked the Court to unseal records containing descriptions of
information obtained through Alfred C. Baldwin lll's monitoring of the illegal wiretap placed at
the Democratic National Committee. Nichter Ltr., May l, 2009 [1 ]; Nichter Reply [4]. As the
Court previously explained, 949 F. Supp. 2d at 211-12, Title IlI of the Omnibus Crime Control
and Safe Streets Act of 1968 ("Title III"), codified at 18 U.S.C. §§ 2510-2520, prohibits
disseminating the contents of an illegal wiretap. This prohibition applies to private conduct as
much as to the conduct of the government Chana'ler v. U.S. Army, 125 F.3d 1296, 1298 (9th
Cir. 1997). Under the statute, wiretap “contents” include “any information concerning the
substance, purport, or meaning of that [intercepted] communication.” § 2510(8). No public or
historical interest exception allowing disclosure exists. Nor does Prof. Nichter or the public
have a First Amendment right to access documents containing illegally obtained wiretap
information
However, the Court also determined the names of those overheard on the illegal wiretap
could be released because § 2510 was specifically amended in 1986 to “exclude from the
4
definition of the term ‘contents’ the identity of the parties or the existence of the
communication.” S. Comm. on Judiciary. Electronic Communications Privacy Act of 1986, S.
Rep. No. 99-541, at 13 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3567. The Senate report
noted that the change “distinguishes between the substance, purport or meaning of the
communication and the existence of the communication or transactional records about it.” Id.
The Court thus ordered the release of the names of those overheard on the illegal wiretaps to
the extent the wiretap information was not otherwise sealed.
In his letter of June 24, 2013, Prof. Nichter proposes that the Court release “the records
of [Alfred] Baldwin’s recollection of the telephone calls themselves,” with “precise”
redactions, presumably as to which statements are attributable to which speakers.3 Petitioner
argues “releasing only the contents of the conversations would also maintain the current level
of privacy afforded to those overheard by Baldwin.”
Notwithstanding the Court’s disagreement with the merits of his argument,4 the privacy
interests at stake are inapposite to the basis of the Court’s earlier ruling on this issue. See 949
F. Supp. 2d at 211-12. As the Court noted in its previous opinion, absent future congressional
action allowing the disclosure of illegally obtained wiretap information that is historically
3 Dr. Nichter discussed this proposed “coinpromise” regarding the wiretapped conversations in the portion of his
letter that shared a heading concerning the released presentence investigation reports (PSRs). There is no
indication, however, that Dr. Nichter quarrels with the Court’s earlier disposition regarding those PSRs, and the
Court accordingly will not revisit that portion of its opinion.
4 The Court is highly skeptical that releasing the substance of the conversations would not impact the privacy of
those recorded on the illegal taps. In any event, that the Court has already released the names of the speakers on
the calls, leaving a finite universe of individuals to match up with certain conversations, undermines Prof.
Nichter’s argument further. Indeed, mosaic theory is a long-recognized justification for withholding sensitive
information from public release. See, e.g., Center for Nat. Sec. Studies v. U.S. Dep ’t of Justice, 331 F.3d 918,
928-29 (2003) (citing CIA v. Sims, 471 U.S. at 159, 178 (1985)); Edmonds v. U.S. Dep’t ofJustice, 405 F. Supp. 2d
23, 32-33 (2005). The Court recognizes that7 with the names of those recorded on the illegal wiretaps already
made public, releasing the substance of those conversations could only lead to speculation over which
conversations can be attributed to which individuals Such an exercise would inevitably impinge upon the very
privacy concerns the Court has already acknowledged 949 F. Supp. 2d at 211 n.10. Furthermore, perhaps worse
still than scholars surmising correctly as to which speaker said what, is the ramifications of their guessing wrong.
5
significant, this Court has no authority to release any information that would identify the
contents of the wiretaps in question. There has been no intervening change of controlling law,
new evidence made available, nor an error or injustice that needs correcting Fox, 389 F.3d at
1296. The Court therefore denies petitioner’s motion as to the wiretap records.
B. Grand Jury Records
The Court also previously denied Prof. Nichter’s request for grand jury materials
in its order of June 10, 2013. 949 F. Supp. 2d at 212-14. Petitioner argues in his motion
that “many Watergate figures are either deceased or have come out in support of disclosure,
directly or indirectly, through overt statements of support, depositions and testimony in
various Watergate-related cases over the decades, or through the income generated by
decades of speaking and writing about Watergate.” He then proceeds to provide a detailed
accounting of the purported supporters for disclosure, including some prominent, still-
living Watergate figures, and a plethora of Watergate historians. On this matter, too, the
Court declines to alter its earlier judgment
There is a tradition in the United States_one that is “older than our Nation itself ’_
that proceedings before a grand jury should remain secret. In re Biaggi, 478 F.2d 489, 491
(2d Cir. 1973) (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 295, 399
(1959)). This tradition is codified in Federal Rule of Criminal Procedure 6(e). See Douglas
Oz`l Co. v. Petrol Stops Nw., 441 U.S. 211, 218_19 n. 9 (1979). The rule of grand jury
secrecy is not without exceptions, however. ln In re Petition of Kutler, this Court
recognized that “special circumstances” may justify the release of grand jury materials
outside the bounds of Rule 6(e). 800 F. Supp. 2d 42 (201 1). The Court found that the special
circumstances exception, first applied in the Second Circuit, is well grounded in courts’
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inherent supervisory authority to order the release of grand jury materials. Moreover, the
exception, by its very nature, applies only in exceptional circumstances, requiring a
nuanced and fact-intensive assessment of whether disclosure is justified.
ln assessing the Kutler petition, the Court applied the factors enumerated in In re
Petition of Crai g, 131 F.3d 99, 106 (2d Cir. 1997), finding that the relevant factors weighed
in favor of unsealing President Nixon’s testimony and associated WSPF materials
Specifically, the Court held that the undisputed historical interest in the requested records
far outweighs the need to maintain the secrecy of those records. For the reasons explained
in this Court’s June 10, 2013 order, that is not the case here. Dr. Nichter’s above-quoted
proffer of June 24, 2013 in his Rule 59(e) motion fails to meet any of the bases for granting
such a motion. See Fox 389 F.3d at 1296. It also neither mitigates nor overcomes the
privacy concerns the Court found to exist two weeks earlier.5
Nor does the Seventh Circuit’s opinion in Carlson v. United States, 837 F.3d 753
(7th Cir. 2016), alter the legal landscape in a manner meaningful to this case. Carlson
declared that circuit’s recognition and articulation of district courts’ inherent authority to
disclose grand jury information outside of the strictures of Rule 6(e), as the Second Circuit
had done in Craz'g, which merely echoes the approach this Court had already adopted.
5 The scope of records Nichter seeks also goes well beyond what this Court granted in Kutler. As the Second
Circuit noted in Craig, “There are obvious differences between releasing one witness’ testimony, the full
transcript, or merely the minutes of the proceeding.” Id. See also In re Shepard, 800 F. Supp. 2d 37 (D.D.C. 2011).
Furthermore, the broad scope of material requested implicates at least one of the reasons the Supreme Court has
recognized as justifying grand jury secrecy - that of protecting the privacy of individuals who may have been
subjects of the grand jury’s investigation, but were never indicted. See United States v. Procter & Gamble Co.,
356 U.S. 677, 681- 82 n. 6, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958) (noting that, among the goals achieved by grand
jury secrecy is protecting an innocent accused who has been exonerated “from disclosure of the fact that he has
been under investigation”) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954)). Although most
privacy protections do not extend to deceased individuals, the involvement of persons in criminal proceedings who
themselves are never indicted or tried nevertheless is presumed to merit continued secrecy, with only the rarest of
exceptions, as recognized in Kutler.
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III. CONCLUSION
For these reasons, it is hereby
ORDERED that Professor Nichter’s Rule 59(e) motion as to the illegally obtained
wiretap information and remaining grand jury records related to United States v. Lia'a'y is
DENIED.
SO ORDERED this Z',Z_)i‘day of May 2017
Z<_.C. E;FM
RoYCE' C. LAMBERTH
United States District Court