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

• Decision Date: 08 January 1975
• Docket Number: Misc. No. 74-128.
• Parties: UNITED STATES of America v. John MITCHELL et al. In re NATIONAL BROADCASTING COMPANY, INC., et al.
• Court: U.S. District Court — District of Columbia

386 F. Supp. 639

UNITED STATES of America v. John MITCHELL et al.

In re NATIONAL BROADCASTING COMPANY, INC., et al.

Misc. No. 74-128.

United States District Court, District of Columbia.

December 5, 1974.

Order January 8, 1975.

James Neal, Associate Spec. Prosecutor, Peter M. Kreindler, Counsel to Spec. Prosecutor, Washington, D. C., for United States.

Floyd Abrams, New York City, Donald J. Mulvihill, Washington, D. C., for applicants National Broadcasting Company, Inc., American Broadcasting Companies, Inc., CBS Inc., and Radio Television News Directors Association.

Joseph A. Califano, Jr., Richard M. Cooper. Washington, D. C., for applicant Warner Communications, Inc.

Herbert J. Miller, Jr., Raymond G. Larroca, William H. Jeffress, Jr., Washington, D. C., for former President Nixon.

Ronald L. Plesser, Washington, D. C., for Amicus Reporters Committee for Freedom of the Press.

MEMORANDUM AND ORDER

GESELL, District Judge.

Several television and radio broadcasters noted in the caption moved pursuant to Rule 47 of the Federal Rules of Criminal Procedure requesting copies of those portions of taped conversations initially recorded in former President Nixon's offices which were subpoenaed, received in evidence, and played to the jury in this widely publicized criminal case still on trial before Judge John J. Sirica. Copying would be accomplished at applicants' expense with the aid of the Clerk of Court from the evidentiary tapes. There would be no recording in the courtroom. Applicants propose to broadcast at least portions of the tapes locally and nationwide over both television and radio.

The reproduction of trial evidence received in tape form for subsequent public use raises an issue of first impression in this District and the Clerk of Court, James F. Davey, properly seeks guidance from the Court. No published precedent directly in point has been cited or found in any other jurisdiction. The matter has been treated as a miscellaneous proceeding and separately assigned at Judge Sirica's request. All defendants and the Special Prosecutor have been served and the Court has before it various briefs and affidavits, including an affidavit from the Clerk of Court explaining some of the mechanical and administrative considerations presented. Former President Nixon, by his attorneys, opposes the motion. The Reporters' Committee for Freedom of the Press has been granted permission to file a brief amicus.¹

Applicants claim a constitutional right to reproduction of the tapes under the First Amendment to the Constitution. This claim is wholly without merit. A public trial is taking place, all media, including applicants, have been present, and, by order of the trial judge, provided with earphones to enable their representatives to hear exactly what the jury heard when the tapes were actually played in the courtroom. There were no restraints placed on their subsequent reporting. Indeed, the contents of the tapes have been fully reported and written transcripts were made available to all media to assure reasonable accuracy.

The Supreme Court has repeatedly held in recent years, although admittedly by split votes, that members of the press are not constitutionally guaranteed a "right of access" greater than that afforded the general public. Pell v. Procunier, 94 S.Ct. 2800, 2810 (1974); Saxbe v. Washington Post, 94 S.Ct. 2811, 2815 (1974); Branzburg v. Hayes, 408 U.S. 665, 684-685 (1972); Estes v. Texas, 381 U.S. 532, 540 (1965). See also, Address of Mr. Justice Stewart, "Or of the Press," Yale Law School Sesquicentennial Convocation, Nov. 2, 1974, at p. 9:

So far as the Constitution goes, the autonomous press may publish what it knows, and may seek to learn what it can. But this autonomy cuts both ways. The press is free to do battle against secrecy and deception in government. But the press cannot expect from the Constitution any guarantee that it will succeed. There is no constitutional right to have access to particular government information or to require openness from the bureaucracy. . . . The Constitution, in other words, establishes the contest, not its resolution.

The question presented by the applications then boils down to a far simpler issue. Are representatives of broadcast media entitled along with the general public to aural copies of exhibits after they have been received in evidence in a criminal trial as a normal concomitant of the constitutional requirements of a public trial found in the Sixth Amendment to the Constitution?

As a matter of practice in this court, if requested, a copy of any document or photograph received in evidence is made by the Clerk and furnished at cost of duplicating to any applicant, subject only to contrary instructions that may be given by the trial judge at the time of trial. This privilege of the public to inspect and obtain copies of all court records, including exhibits while in the custody of the Clerk, is of long standing in this jurisdiction and reaches far back into our common law and traditions. Absent special circumstances, any member of the public has a right to inspect and obtain copies of such judicial records. Ex parte Drawbaugh, 2 App.D.C. 404, 407 (1894). See also, United States v. Burka, 289 A.2d 376 (1972); Belt v. Pr. George's County Abstract Co., 73 Md. 289, 20 A. 982 (1890).

The Court stated in Drawbaugh,

. . . any attempt to maintain secrecy, as to the records of the court, would seem to be inconsistent with the common understanding of what belongs to a public court of record, to which all persons have the right of access and to its records, according to long-established usage and practice.

2 App.D.C. at 407-408. This proposition applies without a showing of a particular "legitimate interest" in the records requested. In re Mosher, 248 F.2d 956, 958 (C.C.P.A.1957).²

In this particular instance this general right to have access and copy exhibits is especially reinforced by directives of the Judicial Conference of the United States issued under authority of 28 U. S.C. § 457. The Clerks of Court for District Courts throughout the United States are specifically instructed to retain on file for public inspection for ten years documentation in cases of significant historical importance and then to deposit such materials with the Federal Records Center under the aegis of the General Services Administration for subsequent years under the guidelines set by 44 U.S.C. § 3301 and the implementing regulations appearing at 41 C. F.R. §§ 101-11.101 et seq. Administrative Office of U. S. Courts, Manual for Clerks of United States District Courts, Chapter 13, Exhibit 2, (Ref. 1301.4) at pp. 4-5, item 6(a) (1954), directs, among other things, that "case papers and documentary exhibits" filed in criminal cases involving the President or officials appointed by the President must not be disposed of even after ten years. Cases of this type are considered to contain "documentary evidence of movements of historical forces" and "biographical data" of obvious importance for persons interested in "social, economic and political research." Ibid., note to item 6, p. 16.

Thus there is congressional, judicial and executive recognition of the need to make available and preserve materials from a trial like the present, including the evidentiary tapes, bearing as they do directly on executive conduct at the highest levels. It should be noted that Warner Communications, Inc. by its separate application specifically requests access in order to disseminate permanent phonograph and tape recordings of evidentiary tapes for use in homes, libraries and schools.

Neither the defendants in this case nor the Special Prosecutor object to release of the tapes, nor has Judge Sirica indicated any reason to deviate from general practice in this instance in the interests of a fair trial. Former President Nixon does object. He seeks to avoid embarrassment and wide publicity, asserting that he still has a property right in the tapes and accordingly a privilege against disclosure, except to the extent that that privilege has been invaded by the doctrine of United States v. Nixon, 417 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Former President Nixon is before the jury as an alleged co-conspirator and his acts, as reflected in the tapes, are pertinent to the theory of the case on which the Special...