The BLT Blog of Legal Times, November 02, 2012
A federal judge in Washington today ordered the U.S. Justice Department to justify the continued need for secrecy over certain Watergate-era wiretap and grand jury records that remain sealed in a high-profile criminal prosecution.
Chief Judge Royce Lamberth of U.S. District Court for the District of Columbia told the government to send him copies of documents placed under seal in the criminal case against G. Gordon Liddy, charged in connection with the burglary at the Watergate Hotel in Washington. The sealed records include grand jury information and “documents reflecting the content of illegally obtained wiretaps.”
Government lawyers oppose the public disclosure of any papers about illegally obtained wiretaps tied to the Watergate scandal. The Justice Department this summer, in response to a demand for those records, argued there’s no First Amendment or public right of access to illegally obtained wiretaps. Historical or scholarly interest, the government said, doesn’t justify discretionary disclosure.
DOJ lawyers said in their brief to Lamberth that “we are unaware of any court that has unsealed previously undisclosed illegal wiretap content for reasons for historical interest.”
Lamberth’s ruling today was issued in a case in which a historian of the presidency of Richard Nixon requested access to court documents that were sealed in the Liddy case in Washington’s federal trial court. Liddy was convicted in 1973 on charges that included burglary and conspiracy rooted in the Watergate Hotel break-in.
The historian, Luke Nichter of Texas A&M University, said in his request for the court papers that “these and other sealed materials may be the key to determining why the Watergate break-in occurred, who ordered it and what the burglars were looking [for].” The late U.S. District Judge John Sirica sealed wiretap information in the Liddy prosecution, Nichter said.
Lamberth today gave the Justice Department a 30-day deadline to provide the court copies of all the records that the government argues should remain under seal in the Liddy case. DOJ, the judge said, must summarize each document and state the reason that each document should remain confidential.
Nichter will get some presently-secret records based on Lamberth’s decision today. DOJ didn’t fight the historian on the release of some information in the Liddy case, and the uncontested sealed material will be disclosed. Those documents include sealed proceedings that involved evidence and pretrial discussions between the defendants’ lawyers and the trial judge.
“With respect to these documents, the passage of time, the completion of the criminal proceedings, and the non-invasive nature of the content, weigh in favor of some unsealing,” DOJ lawyers said in court papers earlier this year.
Lamberth said he’ll revisit the wiretap and grand jury records after the government submits its filing to the court that justifies any need to keep the information out of the public spotlight. Lamberth is the same judge who, last year, ordered the government to publicly reveal Nixon’s grand jury testimony. (DOJ lost that fight.)
There’s one thing the judge wasn’t interested in: ordering an investigation to look at any breach of grand jury secrecy by reporters from The Washington Post. Nichter asked for the inquiry. The judge today denied it.
Phi Beta Iota: In 1973 Gordon Liddy testified before Congress in open session broadcast on television that he was ordered to kill columnist Jack Anderson, and he would have, but the order was rescinded before he could carry it out. It is quite possible that the Watergate records in combination with a full, open, and honest investigation into the 1991 murder of Col James Sabow, USMC (Aviation) in his quarters at El Toro — could blow the lid off the renegade shadow CIA (or at least one of them). There are at least four levels of criminality to be contemplated. First, was CIA in the drug business, abusing its ability to get DoD to do anything it wanted without being questioned? Second, whether or not CIA was in the drug business, was it official CIA practice, with the collaboration of the Department of Justice, to provide persistent immunity for high-volume drug dealers such as Oscar Danilo Blandon? Third, was CIA, either in an official institutional capacity, or as “host” to one or more shadow renegade elements, routinely doing domestic break-ins as well as murders (into the 1990’s)? Fourth, and this appears to be a persistent problem with the Department of Justice, does the Executive routinely lie to the Court both by omission and by active seclusion of records on the basis of false claims of national security? We already have the Department of Justice, during the incumbent Administration, telling the Court that it reserves the right to lie to the Court, and of course we have CIA persistently refusing to release historical records mandated by law as essential to the writing of the history of US foreign relations. A fifth level of criminality needs to be mentioned as well: in every instance where someone has been murdered by the US Government or a contractor acting on behalf of the US Government, and military or civilian officials have looked the other way and let it go, that is criminal conspiracy, as well as the most unethical, despicable failure of leadership. It appears that a number of Marine Corps flag officers are guilty of the latter form of criminality, the truth remains to be known.