U.S. v. Mitchell

Decision Date28 March 1977
Docket NumberNos. 75-1409 and 75-1410,s. 75-1409 and 75-1410
Citation179 U.S.App.D.C. 293,551 F.2d 1252
Parties, 2 Media L. Rep. 1097 UNITED STATES of America v. John MITCHELL et al. Appeal of NATIONAL BROADCASTING COMPANY, INC., et al. UNITED STATES of America v. John MITCHELL et al. Appeal of WARNER COMMUNICATIONS, INC.
CourtU.S. Court of Appeals — District of Columbia Circuit

Floyd Abrams, New York City, for appellants in No. 75-1409.

Joseph A. Califano, Jr., Washington, D.C., with whom Richard M. Cooper, Washington, D.C., and Sidney Rosdeitcher, New York City, were on the brief for appellant in No. 75-1410.

William H. Jeffress, Jr., Washington, D.C., with whom Herbert J. Miller, Jr., Washington, D.C., was on the brief for appellee, Richard Nixon. R. Stan Morenson, also entered an appearance for appellee Richard Nixon.

Henry S. Ruth, Jr., Sp. Prosecutor, Washington, D.C., entered an appearance for appellee United States.

Frank H. Strickler, Washington, D.C., entered an appearance for appellee Haldeman.

Before BAZELON, Chief Judge, MacKINNON, Circuit Judge, and MERHIGE, * United States District Judge for the Eastern District of Virginia.

Opinion for the Court filed by BAZELON, Chief Judge.

Dissenting opinion filed by MacKINNON, Circuit Judge.

BAZELON, Chief Judge:

In this action the three commercial television networks joined by the Public Broadcasting System, the Radio Television News Directors Association, and a large manufacturer of phonograph records, seek to inspect and copy those portions of former President Nixon's "White House tapes" that were played before the jury at the criminal trial of several of Nixon's top aides. It is conceded that one who listens to the tapes the inflections, pauses, emphasis and the like will be better able to understand the conversations than one who only reads the written transcripts that already have been published. The district court nonetheless held that at least until the former aides' pending appeals from their convictions are decided, the tapes cannot be distributed. We reverse.


On June 17, 1972, five men employed directly or indirectly by the Committee to Reelect the President were arrested inside the Democratic National Committee's offices in the Watergate office building. They were there to photograph documents and to repair a hidden listening device installed during a previous burglary. On September 15, 1972, these men and two others were indicted for conspiracy, burglary, and an unlawful endeavor to intercept wire communications. They were all convicted. 1

On March 1, 1974, seven additional individuals, including former Attorney General Mitchell and three former top White House aides were indicted for, inter alia, conspiring to obstruct justice by concealing the identities of the persons responsible for the Watergate break-in. Trial began in that case on October 1, 1974 and concluded three months later with four convictions and one acquittal. 2

Prior to trial, the Watergate Special Prosecutor subpoenaed certain tape recordings of conversations between then-President Nixon and his former aides. The President contested the validity of the subpoena, but the Supreme Court eventually upheld it. 3 The tapes were then turned over to the district court which, after listening to them in camera, arranged to have a copy made of the admissible and relevant portions. These "edited tapes" were given to the Special Prosecutor. At the trial of Messrs. Mitchell et. al. hereinafter referred to as "the Watergate trial" most but not all of the edited tapes between 16 and 22 hours worth were played and the reels of tape were introduced into evidence as exhibits. During the playing of the tapes, those in attendance were furnished with earphones and with transcripts prepared by the Special Prosecutor's office. These transcripts were not introduced into evidence; however, the press and public were permitted to retain their copies, and the transcripts were widely reprinted.

On November 12, 1974, six weeks after the Watergate trial had begun, the broadcast-appellants filed a motion before Judge Sirica, the trial judge in the Watergate case, seeking permission to reproduce and broadcast the portions of the tapes introduced into evidence. 4 Copies of the motion were served on all parties to the trial and on former President Nixon. Judge Sirica decided that the movants lacked standing to make a motion in the criminal case, and therefore directed that the motion be turned into a miscellaneous civil action. He gave all persons desiring to respond one week to do so. Since Judge Sirica did not have time to study the request during the Watergate trial, the action was referred to another district judge, Judge Gesell. 5 Judge Gesell directed the Clerk of the Court to prepare a report on the feasibility of reproducing the tapes.

On November 26, 1974, the Clerk filed an affidavit indicating that reproduction seemed practicable. He reported that two copies of the "edited tapes" already had been made, so that while one was being played in the courtroom the other could be used to produce additional copies. He further reported that the machinery for making copies was available to the Office of Special Prosecutor; that their professional engineer was willing to assist in the reproduction for his standard fee; and that a deputy clerk could be made available to assure that only those portions of the tapes that were actually played into evidence would be reproduced. He estimated that to make one complete copy would take five to seven days and roughly 50 reels of tape, at a cost of $4 or $5 per reel.

On the same day that the Clerk's affidavit was filed, the Government and Mr. Nixon filed memoranda responding to the broadcasters' motion. The Government stated that it did "not foresee that the rights of the defendants or of the United States to a fair trial would be jeopardized if the motion is granted," and therefore did not oppose the motion. Mr. Nixon did offer opposition, contending that to grant the motion would:

have the effect of further intruding on the policies underlying the privilege of confidentiality for presidential communications, of further invading Mr. Nixon's privacy, of further embarrassing him and others whose voices appear on the tapes . . . and of further invading the privacy and causing embarrassment to persons or groups not participating in the conversations but who are mentioned therein . . .

On December 5, 1974, Judge Gesell entered an opinion upholding appellants' right to inspect and copy the tapes. 6 He found that the court's routine practice was to provide copies of exhibits when requested, and that this practice "reaches far back into our common law and traditions." 7 He concluded that Mr. Nixon's interest in avoiding embarrassment did not justify deviating from the practice. 8 Because of anticipated "administrative and mechanical difficulties," however, Judge Gesell decided that no attempt should be made to copy the tapes before the Watergate trial, which was then in its final stages, had ended. 9 At the same time, he requested the parties to submit concrete proposals that would enable the tapes to be released after trial on a non-profit basis, "without special favoritism or priority" to all persons desiring copies. 10

In response to Judge Gesell's request, the appellants jointly filed a two-part proposal. The first part concerned preparation of a master tape: appellants proposed that the engineer who had made the copies of the "edited tapes" be retained to make a master copy, and they made suggestions as to the equipment to be used, the size of the reels, the playing speed, and various other details. The appellants agreed to assume all costs incurred in preparing the master. The second part of appellants' proposal concerned distribution: they offered to suggest the names of firms that could duplicate copies at a rapid rate (15 per day) and reasonable price ($2.20-$4.00 per reel), and suggested a two-stage distribution: first, a simultaneous delivery to all persons who made requests within 5-10 days of an initial public notice; and second, either a first come first serve delivery or a delivery at fixed intervals to all those making subsequent requests. Appellants proposed that a deputy clerk be appointed to administer the entire plan.

On January 8, 1975, Judge Gesell rejected this plan. 11 He criticized it for failing (a) to provide for distribution without profit; (b) to attempt to minimize "commercialization" and "undignified use(s)"; and (c) to identify a person or agency to administer the plan. He stated that the Court was ill-equipped to assume the administrative responsibility, and that the burden was on the appellants to develop an adequate proposal. Because the Watergate trial had ended, Judge Gesell transferred the case back to Judge Sirica.

On March 6, 1975, Judge Sirica held a status hearing at which he requested the parties to submit briefs on whether the Watergate trial had "ended" for purposes of Judge Gesell's earlier decision denying release of the tapes until the trial was over. On April 4, 1975, Judge Sirica issued an opinion on "the narrow issue of the timing of the release." 12 He found that distribution of the tapes, and the mass marketing that would result, could prejudice the rights of the Watergate defendants should their convictions be reversed and a new trial be required. 13 Reasoning that this possible prejudice outweighed any interest in immediately releasing the tapes, the court denied "without prejudice" the appellants' applications. 14 Appellants brought this appeal.


The common law has long recognized a right to inspect and copy public records. In England, the right was narrowly circumscribed, and only a limited number of persons enjoyed it. 15 But the American courts tended to view any limitation as "repugnant to the...

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