United States v. Mitchell, Misc. No. 74-128.

• Decision Date: 04 April 1975
• Docket Number: Misc. No. 74-128.
• Citation: 397 F. Supp. 186
• Parties: UNITED STATES of America v. John N. MITCHELL et al. In re NATIONAL BROADCASTING COMPANY, INC., et al.
• Court: U.S. District Court — District of Columbia

397 F. Supp. 186

UNITED STATES of America v. John N. MITCHELL et al. In re NATIONAL BROADCASTING COMPANY, INC., et al.

Misc. No. 74-128.

United States District Court, District of Columbia.

April 4, 1975.

Floyd Abrams, Eugene R. Scheiman, New York City, Cahill, Gordon & Reindel, Washington, D. C., Henry S. Ruth, Sp. Prosecutor, Peter M. Kreindler, Counsel to the Sp. Prosecutor, Richard BenVeniste, Asst. Sp. Prosecutor, Watergate Sp. Prosecution Force, Washington, D. C., for National Broadcasting Co., Inc., American Broadcasting Companies, Inc., CBS Inc., Radio Television News Directors Association, and Public Broadcasting Service.

William G. Hundley, Plato Cacheris, Hundley, Cacheris & Sharp, P. C., Washington, D. C., for John Mitchell.

John J. Wilson, Whiteford, Hart, Carmody & Wilson, Washington, D. C., for H. R. Haldeman.

Thomas C. Green, Ginsburg, Feldman & Bress, Washington, D. C., for Robert C. Mardian.

William S. Frates, Andrew C. Hall, Frates, Floyd, Pearson, Stewart Proenza & Richman, Miami, Fla., for John Ehrlichman.

Joseph A. Califano, Jr., Richard M. Cooper, Williams, Connolly & Califano, Washington, D. C., and Sidney S. Rosdeitcher, Paul, Weiss, Rifkin, Wharton & Garrison, New York City, for Warner Communications, Inc.

Herbert J. Miller Jr., William H. Jeffress, Jr., Miller, Cassidy, Larroca & Lewin, Washington, D. C., for Richard Nixon.

MEMORANDUM OPINION AND ORDER

SIRICA, District Judge.

This matter comes before the Court solely for consideration of the narrow issue of the timing of the release, if ever, of certain tapes received in evidence in the case of United States v. Mitchell, et al., CR 74-110. Since this case was returned to the Court by Judge Gesell on January 8, 1975, the Court has given serious consideration to this issue.

As noted by Judge Gesell in his Memorandum and Order of December 5, 1974, 385 F.Supp. 1190, and as further indicated in his Order of January 8, 1975, there are several obstacles which must be overcome before the tapes might be released. Because of the difficulties which Judge Gesell anticipated, including such problems as administration, funds, technology and manpower, he ordered that no attempt to copy the tapes should be made "until after the trial." (Memorandum and Order, December 5, 1974, at 7, 385 F.Supp. 1190.)

This Court, as the trial court, is well aware of the many problems that must be resolved before any presidential tapes might be reproduced and distributed to the public at large. At present the Court is seriously concerned about the problem of the timing of any release or reproduction of the tapes. On March 6, 1975, the Court presided at a hearing at which counsel for the applicants, as well as Mr. Nixon's attorney and a representative of the Watergate Special Prosecution Force addressed this single issue. At the Court's request briefs were submitted thereafter and the Court took the matter under advisement.

All four defendants convicted in the aforementioned criminal trial have filed notices of appeal in the U. S. Court of Appeals for the District of Columbia. Should one or more of the defendants prevail on appeal the case might have to be retried, which would mean that a new jury would have to be empanelled and the evidence resubmitted. Thus, the Court still must be careful to protect the rights of the defendants as well as the integrity of the evidence. Absent some compelling reason, the Court should not take any action which carries the risk of causing possible prejudice to the rights of the defendants should a retrial be necessary.

This much would be expected of any judge and, indeed, no less has been specifically required of this Court by the Supreme Court's opinion of July 24, 1974, in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). After a careful review of the very sensitive matter of requiring a President to produce, pursuant to subpoena, information which he claimed was privileged, the Supreme Court held that the subpoenaed presidential tapes had to be produced by President Nixon for in camera judicial inspection. Then the high Court turned to the matter of the enforcement of the subpoena by this Court. Again it stressed the sensitive nature of the presidential tapes, particularly the privileged or otherwise inadmissible or irrelevant portions, and noted: "We have no doubt that the District Judge will at all times accord to presidential records that high degree of deference suggested in United States v. Burr , 25 Fed.Cas. 30 (No. 14,692d) (1807) . . .." Id. 94 S.Ct. at 3111. (Italics added.) It is in the light of this solemn responsibility as well as a concern for the rights of the defendants that the applicants' request for immediate access to the tapes must be examined.

Mr. Nixon's attorneys point out that the release of the tapes for reproduction and distribution envisioned by the applicants and their friends would result in the manufacture of permanent phonograph records and tape recordings, perhaps with commentary by journalists or entertainers; marketing of the tapes would probably involve mass merchandising techniques designed to generate excitement in an air of ridicule to stimulate sales. It is further implied that the tape copies would be put to untold varieties of inappropriate and...