FOIA 58707 8: 58708 (URTS 16380} Dodd: 70105980 Page 2 mu. can mm to cum; mag:- NICHOLAS mm 0mm mm 4800-1? um sums 000M 302m; FOIA 58707 58708 (URTS 16380) Docld: '70105980 Page 1 Transcript of Proceedings Mar 6, 1974 re GRAN) JURY REPORT 5: WATIW 5 to House of Represautatives. FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page _3 ?In: mm. ~.mm.mw um momma In.? 4Q must-mm. mmuxwmu . mama; mm: ?MIC-Illiwa in. mum-m. meummg lam? ?mm-Mmmaam ubwmu FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 4 MudWMh-Ihnl mo- mwmumm??wm ?mom a: u. mm?? M. "murmawm?ww' mamm?wuw. mamasme mm new: My?; u.mm thtnumm FOIA 58707 8: 58708 (URTS 16380) Docid: 70105980 Page 5 6 ?1 it than M. - - m. an! mm In. In!- ?hummuumc-Mumma t; a mums-1mm m: mumm,mumMu?uuc?mm mum: ?it! mm: mm,mmumummapzmumm nuummt,mnmm FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 6 mm m: hillumwammuumm? mmwmam.m m! am mm. WV. m, ?mam~m ?comm-mum.? munmumtuwumm FOIA 58707 58708 (U RTS 16380) Docld: 70105980 Page hm, mm. me. am. ran-um main-?ml. a mumuum WamMMhu-Wm?lm. a My o! m. Im't?ummn away-mumcummym by a a m. w. 2) FOIA 5370? 8; 58708 (URTS 16380) Docld: 70105980 Page 8 In)? m. :t Illu- sauna-a e! run mm m,mhamamwmm?mm to it. was a! mu ?nu mummxm. nay?, Wm. Immumd?nm? mumu?tm?mmum. mum? art-I. that it mm mm?. FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 9 :qhhmunmmummo ?mm. ?Mann-M Wuummuw ?mem.umnuM, gimme-mammal:qu ?whW?uammMJ agar-mum - um.m FOIA 58707 58708 (U RTS 16380) Docid: 70105980 Page 10 Manna-mi. um. and.? m. WnMuthumm MWcan: than ?an. an, run-mum:- with m2mil-It. Mun-tn ?Mammal-Mammy FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 11 16 Ma I ?a of ?mum. m, :Mmuumm anhth-mlgm xmumwim .. FOEA 58707 St 58708 (URTS 16380) Docld: 70105980 Page 12 11 nurse-H at. put a! mm mm?. mmnmumwma mmumximmwm mam. mammal-l 0? 3} FOIA 58707 8m 58708 (URTS 16380) Docld: 70105980 Page 13 12 I Ni ?mumwumwnu. m: M. MW about it. I ?.1th n' I in mmxw?.? . mum I ?m I sun-mun 1- pm mgamuwmmu ?mun-um 'm Inn-cum my to am this w? In. has .- anmwungM! m3 I ammume FOIA 58707 58708 (URTS 15380} Docid: 70105980 Page 14 13 .?mem.mmhum itzumum 2nallOldMd-u,xm1t,m. FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 15 1! mm: mama?um, mumzmmuw Maizmxwumamgmuumuum mtamuamwtil. m: ?ll a? *3 u.m; Inaugu- war-km, ?Manama. mm, FOIA 58707 58708 (URTS 16330) Docld: 70105980 Page 16 13 mummxanm?tu-dummam nummgn?ndeImMu~ W- w. In. til-11y. In: mm .. ?mm-mama5.: mummnmumummumwm a ?sum FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 17 mummumumum,ux 1 Mn ?but pun-ma a It .1 in out. all I a d??amd Mm o! ?In. my .. ?haMWM?u-MHtm? 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FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 23 23 mm 1m. mmwmum.mm.m MummMa-?mmum FOIA 58707 81 58708 (URTS 15380) Docld: 70105980 Page 24 83 ?mu. Wtde mun my. ?llin: menu-0mm: m. m,hmm may? mmaamun-memmu ?taint-imam, FOIA 58707 81 58708 (URTS 16380) Docld: 70105980 Page mm; Inquiry. that: ?u Wm am pm 20! mu. mmusmmumuumm I. "in ?at no right! at with an: mm at a his. 12mmmm: Mata-tats.? mama-mammalian mum-man FOIA 58707 58708 16380) Docld: 70105980 Page 26 ammuum?mnmmumM a M. mm: man-t 3a mu: an. as ?mammamummum Nam p. M. 1mm ii. .. 525-5: FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 27 16 mm. um. mom d3mehth-Mdm.tw ?mamas-am ?minim ammuamxu.;wmh FOIA 58707 8: 58708 (URTS 15330) Docld: 70105980 Page 28 'mwamuum sum-m. .. M: manual-um humble-tutu? ?Mmuzmwm? ?Mutiny-Wannabe?. mm?. mm with? gin to may and mmFOIA 58707 58708 (URTS 16380) Doctd: 70105980 Page 29 mm,mmtm,unmuumm awmm. ?.mw?mmnw?ummau WW. 6) FOIA 58707 58708 (URTS 15380} Docld: 70105980 Page 30 2! Minty. was mu an NI. wasmm. will go mu, :1 - much}. into my a: the FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 31 30 lulu mm, ?a mm mm wmmdeqdma-num, nummemWMI-u Mm mm: MM mn.mm mrmumx.wm mm: m. manna-um rwmmumm m. ?mmn 3 nu. an? M, a. FOIA 58707 8: 58708 (URTS 16380} DocEd: 70105980 Page 32 nmumuwwmumm-mn at?: M'tm?uth? utqmunmu mummy; mm: ?Hum mm?.auxmnw ?m.u.mmx:mmw. Vim, gum. m: M?s all at?. nil-I. In. a. mm w. mm: ?amuwumwmm.mu't hum has. mm in In that tiny inFOIA 58707 8: 58708 (U RTS 16380) Docld: 70105980 Page 33 a of anthat mm}. "h mm mm If M. ?Wm: an. m. It. manmm: mm. mm: ?.mumum I m. ammummuamwmvu ?hum. FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 34 33 wmm,uu1m,mmwm mammal-thumb? . m. mu hath-chum? Inn-r. dunk. mgmeNMOLM?hymm human me mam I an?: II 13;. xm'tmuhuzu'tmamamwm FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page his. a? M. W?M?MMdamuth 5* ?y am mi mm hummus?yaw; Chuth mmuwmummum m. no.? mmuou mmuom Exam Hmwmo. Dena? 33m.Illa in?: {it I. 3! Quinn on 33 i SIRE if: 853$ a 55.3 i. ;Egguga?ag?ggngigii. lizangigiliug ?Sign. gaunt-algongsi; in: In! :1 II uni. i In. gol?ng?. iigg?anulol?fr ?ll In all. it. i; a: if or. Riga-Eppgfiigig. 3.3303FOIA 58?07 58?08 (URTS 16380) Docld: 70105980 Page 37 1m: Win- Manama-mm. lawman-unojmt: m, ?mum Wyatt. FOIA 58707 8: 58?08 (URTS 16330) Docld: 70105980 Page any anus-u a! an a at only In a a may. all In. uln:mwuwmg than; Mu aim-m?- m. with!? a! FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 39 a! 0? magnum Wdeu-lm?umwm snowman-?auqu mummuwuuwm in a m; uh alt ISMWIHMWM mwm?thwm nunw.mw.hmm ?l?hmmg, milk humewwd?I-?mm?? FOIA $1 58707 8: 58708 (URTS 16380) Docld: 70105980 Page an?: th- nm a! In. tin. m. smumwmmammum ammuma m'umgmmuu all? a. an no canany. and ?at July ha- Maul mm: 3 an you. ?mm FOIA 58707 8: 58708 (URTS 15380) Docld: 70105980 Page 41 mummy:qu Mm mm: la. mm mm: mum. manta-gm - was and Watson flg. Sokal FOEA 58707 8: 58708 (URTS 15380} Beds]: 70105980 Page 42 51 THE COURT: Does any other counsel for a Defendant wish to argue now? MR. HUNDLEY: Your Honor, if'I might suggest, I think it might be more helpful to defense counsel, who have only a peripheral.smnding on this matter anyway, if we heard what Mr. Jaworski?s position was, how far he feels this report ought to go. Perhaps he agrees with Mr. Wilson and that would short- eircuit a lot of problems here. THE COURT: It doesn't make any difference to me. Mr. Jaworski. MR. JAWORSKI: May it please Your Honor, if it pleases you, we are prepared to proceed. Mr. Lacovara will present the argument. THE COURT: We usually hear from all the defense first and the Government on rebuttal. It doesn't make any difference to me. You gentlemen handle it the way you wish. MR. HUNDLEY: I will be very brief. THE COURT: Suppose you make your statement. MR. HUNDLEY: Yes. As the Court knows, I represent Mr. Mitchell in this matter. I am really not prepared to make any full-fledged argument to the Court for the simple reason that I don't know what is in the report; and, of course, what is in the report would dictate what the argument should be. I would say this: That if there is anything in the "Km- FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 43 1 52 report that pertains to Mr. Mitchell, I would ask this Court to expunge that from the report. 0n general principles, I agree with Mr. Wilson. If the report does create some sort of a problem of the nature that he indicates then, of course, I think it was an illegal act on the part of the grand jury. I think it would be imprope: for me, as Mr. Mitchell's counsel, to even look at the report. I think that if Your Honor did anything further than expunge the full report, assuming it is of that nature,,then Your Honor would only be, in a sense, compounding the illegalit: of the criminal action. Since I only represent Mr. Mitchell, my only concern would be as to his right to a fair trial here, that if there is anything at all in the report concerning Mr. Mitchell, eithe: directly or indirectly, that that, of course, should be expunged. Let me add this one other note, again only confining myself to my client, Mr. Mitchell. If the suitcase contains documents -- we have had a situation in New York where Judge Gagliardi has turned over certain information to our counsel as being Brady material, as having some exculpatory value to the defense. Again Your Honor realizes_I am talking in a complete vacuum here, because I don?t know what is in the report. If any of the material in the suitcase is of that ?n FOM 58707 58708 (URTS 16380) Docld: 70105980 Page 44 53 nature, then, of course, it is evidence and it is evidence that should only be made available to me and my client, and should not be turned over to the Committee. I noticed with some interest that Your Honor ad- dressed a question to Mr. Wilson, asking if there were any other judges who had followed Judge Weinfeld's very erudite and scholarly opinion in New York on that matter. There was a proceeding before Judge Bryan when Judge Bryan was the Chief Judge in Alexandria, in the matter of Petition for Disclosure of Evidence before the October 1959 Grand Jury of this Court. In that opinion, Judge Bryan cites Judge Weinfeld with favor; and Specifically points out that there has to be rigid restraints upon these grand jury pre- sentments or reports, or whatever you might want to call them, to avoid obtrusion upon the spheres of the Legislative and Executive branches of the Government. He drew the line, just as did Judge Weinfeld in that case. The citation is 18d F. Supp. 38. In that case Judge Bryan made the presentment available only to the local Commonwealth attorney, again on the theory that that could be preliminary to a judicial proceeding. He felt that Rule 6(a) did not confine the judicial proceeding to only a Federal judicial proceeding,but that is where Judge Bryan drew the line. And in the cases that I have looked over, I don't see that any judge has gone beyond that point. FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 45 54 So, as I say, in speaking for Mr. Mitchell, my sole concern would be that if anything in the report pertained to him in any way, I would ask this Honorable Court to expunge it. Thank you, Your Honor. THE COURT: Thank you. All right, next? Mr. Green. MR. GREEN: If Your Honor please, Thomas Green on behalf of Defendant Mardian. My only purpose in addressing the Court this morning is to preserve the objection that I made yesterday in our session, that any release of the report would create undesir- able and unwarranted pretrial publicity; I think that is evidenced by the congregation assembled here this morning. I am handicapped to go further, as are probably all defenSe counsel, without knowing what is in the report, to make any more specific my objections. One short response to something Mr. Jenner said about Rule My recollection of the grand jury practice was simply that when documents are taken before the grand jury, they are frequently read to the grand jurors; they become part of the transcribed record, if the record is indeed recorded and later transcribed. i FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 46 35 That falls directly within the language of Rule which forbids recorded testimony from being disclosed other than in connection with a judicial proceeding. Furthermore, I think to take the position here when we all know that in many cases before grand juries, the evidence is presented purely by documents,with maybe a custodian to introduce the records and an agent to read them to the grand jurors -- and to now state that Rule 6(a) doesn't cover such a case because that kind of documentary presentation is not a matter before the grand jury, with all due respect, I think is to engage in mental gymnastics. I think the rule is clear and must be interpreted in a reasonable manner. Thank you. THE COURT: Thank you, Mr. Green. MR. DICKSTEIN: May it please the Court, my name is Sidney Dickstein and I represent Charles W. Colson, Defendant, in Criminal No. 74-110.~ I think it is fair to assnme from the fact that I have been invited to appear before Your Honor on this matter this morning that this matter touches upon the interests of my client. However, I do not know what is in the report that has been discussed today. I do not know what is in the accompan) ing briefcase. I do understand that the Special Prosecutor's FOIA 58707 8; 58708 (URTS 16380} Docid: 70105980 Page 47 56 Office has submitted a memorandum to Your Honor. We do not know the content of that memorandum; and as far as we are concerned, it is an ex?parte communication to us. As tempting as it is, we will refrain from engaging in what has been America's favorite guessing game for the past week or so. we will not make any assumptions whatever as to the content of the memorandum of the grand jury, if, indeed, that is what it is, the accompanying briefcase, or the memorandum submitted by Mr. Jaworski. . Since we are not in a position to know what the content or the nature of this material is, we will also refrain from taking any position before Your Honor as to what disposition should be made with regard to this material. I would, howevor, wish to express my concern as to what the consequence of the disclosure could or might be. I believe it was Mr. Dear who indicated to Your Honor that he could not absolutely guarantee the privacy of this material; the control of this material; and in View of the history of what has happened to statements and documents which have been in the possession of members of the Congress and Congressional Committees during the pro-indictment phase of these proceedings, I can well understand Mr. Doar's reticence. We just wish tostate this, Your Honor: That whatever Your Honor decides to do with respect to this material, we do not acquiesce in it; we do not waive any rights that may flow FOIA 5870? 58708 (URTS 16380) Docld: 70105980 Page 48 as a consequence of the disclosure or dissemination, if that is Your Honor's decision. That is our position today. THE COURT: Thankyou, Mr. Dickstein. MR. BRAY: Good morning, Your Honor. I am John Bray, representing Gordon Strachan. - Mr. Strachan, of course, appeared as a witness before the grand jury that handed up the document in issue and he has also been indicted by it. - I mightnote that from the newspaper reports it ap- pears that that grand jury is still in session. As I indicated in the meeting we had yesterday, it was my View that even if a regular grand jury has the authority to issue any sort of a traditional presentment, and if this grand jury otherwise at the time of this document was a legal grand jury, that under no circumstances could the grand jury return a presentment while the grand jury remains in session. I refer the Court to a Second Circuit case, In re Bonano. I THE COURT: Have you filed a memorandum? MR. BRAY: No, Your Honor, I haven't, but I can give the citation. THE Give me the citation. MR. BRAY: In re Bonano, 344 F. 2d 830; and at Page 834 the Court said: (3 FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 49 58 "We have not been referred to a single case authorizing disclosure of a witnessL testimony during the pendency of grand jury investigations.? Now, we, of course, don't know whether the briefcase contains testimony, but I think the Supreme Court cases also have indicated that grand jury material disclosures in general must in any event, if proper in the interests of justice, await termination of the grand jury. Therefore, in the event the Court otherwise decides that this information should be disclosed because of a com- pelling public need, it is my reqaest, among others, that the grand jury immediately be terminated. Furthermore, I would like to mention, with respect to the question whether under the Federal Rules of Criminal Procedure the House proceeding constitutes a judicial proceed- ing, such that a grand jury may transmit information to it upon order of the Court, that the case that Mr. Wilson referred Your Honor to, Kilbourn v. Thompson, while, as Mr, Wilson said, it does throughout speak of the House of Representatives having judicial powers, in my reading of that decision, they were talking about something quite entirely different from Rule as to whether or not that is then a judicial proceeding. In one portion of the opinion, and I think perhaps the only portion where the term, judicial proceeding, rather than FOIA 58707 8: 58708 (URTS 16380} Docld: 70105980 Page 50 59 judicial powers is mention, is on Page 387 of the opinion, where the Court specifically seemed to have withheld judgment whether the House of Representatives in matters like this was vested with judiCial powers and as such constituted a judicial proceeding. With respect to the term, judicial proceeding, the Court raised the question whether if this had been done, that is, if they had clothed themselves with the power of a judicial proceeding, whether that might not in fact violate the separation of powers of our Constitution. Your Honor, with respect to the rights of the Defendant, Mr. Strachan, I do want to note my objection to any disclosure of whatever might be in the report or in the brief- case, both in his status as a witness before the grand jury and in his status here as a Defendant. I furthermore would like to note with respect to the possibility of fair trial, which is everyone's pointed concern here today, that we are doing this on the heels of what has already been probably the most massive disseminated amount of publicity in this country's history; and I believe that it is particularly appropriate to realize, as Judge Gesell realized in a recent tapes case, in the suit by the Senate Select Committee for disclosure of tapes, that, as he put it: critical factor in the whole decision as to the weighing of the various interests involved here is this fair trial question.? FOIA 58707 81 581708 (U 16380) Docld: 70105980 Page 51 60 He noted that even the disclosro of those tapes that may perhaps be wholly unrelated to many of these Defendant could generate a whole new round of additional publicity. I note, although we come before the Special Prosecutor's office, I do have the impression that the dis- closure of this information at least to the House is sought by the Special Prosecutor's office and, therefore, if this is done, if it does create the kind of publicity we fear, this most clearly would be Thank you, Your Honor. THE COURT: Thank you, Mr. Bray. Anyone else? Mr. Stein. MR. STEIN: If the Court please, my name is Jacob A. Stein and I represent Kenneth W. Parkinson in Criminal No.74-110. On behalf of my client, I object to the making public of the grand jury materials. The gratuitous introduction of the materials into public discussion will serve to sustain the swirl of pretrial publicity. I also object to the materials being transmitted to a Committee of Congress. To do so increases the risk of public disclosure and creates the possibility and perhaps the likelihood of an intertwining of the grand jury materials with the Committee's action. {3 FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 52 61 Your Honor has entered an order promulgated in the interest of controlling pretrial publicity; and it deals with comments by counsel and the Defendants. I question whether it would conform and be compatible with the spirit of that order to place these materials in a position where the public can get at them. I move, therefore, that the materials be held in camera and protected from any further disclosure even to those who promise confidentiality. . As a footnote, Your Honor, neither I nor my client knows what the contents of these materials are and we have no reason to believe that they would affect our position on the facts in any trial; but we do fear that we are going to be thrown further into a vortex that is well-nigh unctrollable at this point. Thank you, Your Honor. COURT: Does that conclude all the attorneys representing the various Defendants? Mr. Lacovara. MR. LACOVARA: Good Morning, Your Honor. Philip Lacovara, counsel for the Special Prosecutor. I am appearing this morning on behalf of the United States and the grand jury. It is our submission, Your Honor, on behalf of the Government and the grand jury, that the Court has the power FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 53 s_2 to receive the report and recommendation which was handed up by the foreman last Friday; and that in the circumstances of this matter, the Court should exercise its power and discretion to grand the grand jury?s request. I would like to make one or two preliminary points about the status of the information in this area. As several counsel have observed, the Special Prosecutor?s office did file with the Court yesterday a memorandum of points and authorities expressing this position. That memorandum was available to he served on all counsel at the meeting of counsel in camera yesterday but the Court de- cided that because the memorandum did discuss in a very general way the contents of the report, that it would be appropriate to place it under seal for the time being, pending the hearing this morning. We did, at Mr. Wilson's request, furnish him with a list of all of the authorities cited in that memorandum. I find myself in the unusual position of being charged with having given defense counsel too many citations rather than too few. THE COURT: Isn't it the fact that Government counsel, Mr. Jaworski, requested that it be filed under seal? MR. LACOVARA: I am not sure, Your Honor. I wasn't present at the meeting myself. MR. JAWORSKI: That is correct, Your Honor. 1 I FOIA 58707 St 58708 (URTS 16380) Docld: 70105980 Page 54 63 THE COURT: That is correct. I just wanted it clear on the record. MR. LACOVARA: The reason for that was that the Government, as the Court will understand, does feel it necessary to discuss some of the issues in the context of this report and recommendation. The additional point that I shuld make is that it is true, as we understand it, that no counsel for the Defendants -- who are the objecting parties here this morning -- have seen the two-page report and recommendaton. It is our understanding that counsel for the President has been granted access, without objection, to that two?page memorandum. MR. St. CLAIR: I confirm that, as Your Honor knows. THE COURT: Thank you. MR. LACOVARA: The situation is this, Your Honor: The grand jury, in the exercise of what it believes to be its lawful powers as a regular grand jury -- THE COURT: I would like to speak to counsel at the bench a minute, if you don't mind. Both sides. Excuse me, I didn't meant to interrupt you. I have something I would like to discuss with you at this point. (Whereupon counsel approached the bench and the following proceedings were held:) MR. LACOVARA: I would like to make a motion that our memorandum be unsealed, if that is permissible. i FOIA 58?07 8: 58708 (URTS 15380) Docld: 70105980 Page 55 '64 THE COURT: I wanted to talk toyou about this. A lot of people are going to be wondering, and so, I think. Mr. St.Clair saw this, and the implica- tion might be: Well, the Judge didn't let the other Defendants' counsel see it. What is wrong here? Do you understand? I would like to have some kind of agreement among counsel that certain attorneys wanted to see it and there was some objection. The Court was willing to let them see it, but Mr. Wilson has to protect his record. MR. WILSON: I am sorry that Mr. Lacovara mentioned that the White House had seen it. It was in camera. I thought that was part of our confidential session. I am not blaming Phil. Mr. St. Clair confirmed it. I haven't told anybody this. COURT: Yesterday we did discuss that. You were not there. You see why I am concerned. MR. I would initially have let all defense counsel see it. MR. DICKSTEIN: Your Honor, there is an additional problem. We are in the blind. We don't know, because we haven't seen it, whether this two-page memorandum, without the supporting accompanying documents, if indeed they are supporting accompanying documents, has any meaning. THE COURT: I understand. Mr. Jaworski. I FOIA 58707 8: 58?08 (URTS 16380) Docld: 70105980 Page 56 65 MR. JAWORSKI: If I may comment on that. As I did yesterday, I, personally, feel that the memorandum is of such a nature of a transmittal letter as to make it entirely appropri ate for it to be made public, not only for counsel to see it. You remember I took that position in camera yesterday; and I take that position again now. THE COURT: Mr. Wilson is protected on the record if you have any substantial objection to it; but I would like to see that memorandum made public, especially in View of the position taken by the President here. MR. Your Honor, ifyou should rule today by consent oi ninety per cent of the people here that that may be read aloud in this proceeding today, you don't give me my twenty-four hours to raise the question in the Court of Appeals. THE COURT: You can raise it. MR. WILSON: After it is open. THE COURT: If I decide against you if I should; I don't know what I am going to do -- you still have a right of appeal. MR. WILSON: No, but on this point I say the grand jury had no right to hand in two pages, much less the bundle. If you are going by consent of other counsel to read those two pages, you have taken away from me an appellate base. THE COURT: I see your point. Suppose we do this: Suppose we finish the argument, FOIA 53707 3. 53703 (URTS 16380) Docld: 70105980 Page 57 the legal argument. MR. WILSON: You may decide in our favor, but the thing is over with. THE COURT: Right. You can't tell. What I think I will do, out of an abundance of caution here, is to give you the twenty-four hours to apply to the Court of Appeals, Petition of Prohibition, or whatever you want to file, and let them decide the matter. MR. St. CLAIR: The President, if Your Honor please, stands indifferent, as I said at the outset. It is up to you. THE COURT: The President doesn't take any position on that. I think the two pages ought to be made public. I have read it. MR. STRICKLER: Your Honor, if I may interrupt, if they are made public, the reason for making than public is to eliminate further unfair speculation. Now, the speculation is going to continue with respect to the bundle in the brief- case; and I don't think it is going to eliminate any specula- tion. THE COURT: That is a different subject matter. Those of us who have seen the two pages know what they contain, and standing by itself, I think there is great public interest in this. ?no? {3 58707 8: 58708 16330) Decld: 70105980 Page 58 66 I know what is going to happen. There will be people saying: Well, the Judge let so-and-so see it, counsel for the President; and didn't let the others see it. Is this fair? MR. LACOVARA: It would be important to put on the record that defense counsel were offered the opportunity to see it. MR. WILSON: You can say we declined to look at it. I don't know whether other counsel will say that but we decline. THE COURT: Can I put on the record it was offered, you declined to look at it, but other counsel wanted to look at it? MR. BRAY: We indicated hypothetically, if we were given the opportunity of looking at the released memorandum, we would prefer to see it; but I don't think we were offered the opportunity. THE COURT: You didn't want to see it. MR. HUNDLEY: I took the position unless there was something in it pertaining to Mr. Mitchell, I am not sure I have the right to take a look at it. THE COURT: Why can't I say this: At least we can agree to this without naming names. That the so-called two- page memorandum or order or whatever it is was offered -- I won't have to mention names of counsel by the Court for the attorneys to look at it; and it was decoined by certain defense FOEA 58707 81 58708 (URTS 16380) Docfd: 70105980 Page 59 67 counsel and approved by others. So that that is the reason it has not been disclosedthat. MR. WILSON: I think you should add the others haven't seen it yet. Isn't that right? MR. HUNDLEY: Nobody has seen it yet. THE COURT: You can write the statement out, ifyou wish. MR. HUNDLEY: That is all right. THE COURT: I want the record to show,I offered to permit counsel to see it. I am not going to name any names. Certain of the defense counsel didn't want to see it; others wanted to see it. So nobody will be under any misapprehension. MR. DICKSTEIN: The record will stand as to what the positions of respective counsel were; but lest there be some misunderstanding,it was stated, I am not sure as a hypothetical, that ninety per cent of the defense counsel might agree with the proposition that the memorandum should be disclosed to the public. Speaking for Mr. Colson, I know that was not our posi- tion. MR. WILSON: I said, if. THE COURT: This is very important, gentlemen. We don't have to rush this. I would suggest that you legal minds get together and prepare a statement that is fair to everybody and when we come back from lunch, the statement will be all FOIA 5870? 58708 (URTS 16380) Docld: 70105980 Page 60 63 settled and I will read it, so there won't be any misunderstand ing by anybody. MR. WILSON: All right. THE COURT: That is the way to do it. MR. HUNDLEY: All right. If I THE COURT: I don't want tostart ad~libhing. make a misstatement, you will jump up and object, and this one will-object. MR. GREEN: Would you contemplate an adjournment now? MR. HUNDLEY: Could you let him finish? THE COURT: Oh, surely. MR. WILSON: We would like to masticate at lunch what he said. THE COURT: We will take a little longer lunchhour, if you want. so you can get together in the room and agree upon a statement. You don't have to mention names. MR. HUNDLEY: We will agree. MR. DICKSTEIN: Thank you. (Whereupon counsel resumed their places and the fol- lowing proceedings were held:) THE COURT: Pardon the interruption, Mr. Lacovara. Let's proceed. I MR. LACOVARA: Thank you, Your Honor. The two basic propositions that we would advance to the Court this morning -- and as I listened to the arguments,'l {It FOIA 5870? 8: 58708 (URTS 16380) DocEd: 70105980 Page 61 69 am not sure that at least the first one is seriously in dispute -- are these: First, that a regular Federal grand jury does have the inherent constitutional power to submit to the Court that impanels it something other than merely an indictment and a no-true bill. In fact, Mr. Nilson's argument, as I understand it, and I hope I am doing justice to it, recognizes that Federal courts and Federal grand juries around the country do in fact have a practive of receiving such reports. We thinh-it is significant that even in this Circuit, in the most recent authoritative decision by the Court of Appeals on the procedure to be followed by Federal grand juries the Gaither case, in 1969, with which every District Judge and prosecutor is familiar, the Court of Appeals for this Circuit stated that grand juries, regular grand juries, even today, in the language of the Court, "have the power to return presentments to the Court, even if those presentments do not constitute an indictment.? THE COURT: Here is what that case said, taking an excerpt out of the opinion in the Gaither case you mentioned, 413 F. 2d 1061: "Even today grand juries may investigate, call witnesses and make a presentment charging a crime. However, the presentment, even if i i FOIA 58707 58708 (URTS 16380) Docld: 70105980 Page 62 ?0 otherwise an adequate charge, cannot serve as an indictment and hence initiate a prosecution under the Federal Rules of Criminal Procedure until approved by United States Attorney.? That was one of the questions they had. That is the language of the Court of Appeals in that case. All right, you may go ahead. MR. LACOVARA: That is correct. From reading that decision, you no doubt saw the citation that this Court of Appeals gave to the Fifth Circuit's en banc decision in the United States v. Cox, where this issue was in dispute; and the majority of judges on the Fifth Circuit stated that the grand jury had the right to return in open court, even prior to its discharge -- which was a point raised by one of defense counsel -- some sort of accusatory document that did not constitute an indictment in that case because the United States Attorney refused to give it the substance of an indictment by signing it. The Cox decision and the Gaither citation to it were also at the heart of Chief Judge Roszel Thomsen's decision up in the District Court in Baltimore to permit the very same kind of activity to take place. That grand jury before it was discharged and before it had completed all of its business announced that it wanted to make a report to the Court in the nature of a presentment mute, allowed such a report or portions of it which the court 3 record. FDIA 58707 8: 58708 (URTS 16380} Docld: 70105980 Page 63 7?1 accusing certain individuals of misconduct, nameing other persons who were not allegedly involved in misconduct but had in fact been targets of misconduct. Relying on the Fifth Circuit extensive analysis of the common law powers of a Federal grand jury, codified by the Constitution, Judge Thomsen held that Federal grand juries do have the constitutional power to decide the form in which they will report back to the court on the results of their investigations. Judge Thomsen, therefore, received that report and, in fact, fided publicly a summary of the charges that the grand jury had returned, even though they did not constitute an indictment. The other forms of grand jury reports that have been approved by other Federal Courts are also significant. The type that I have just referred to as reflected in Cox and in-the 1970 decision of Judge Roszel Thomsen are reports by Federal grand juries commenting on general matters of public concern. Just a few months ago the Court of Appeals for the Fifth Circuit, after noting the considerable historical data supporting the notion that regular Federal grand juries have the power to make reports and not simply to indict or stand found related to a Federal interest to remain on the public That was only a few months ago, Your Honor. It is the FDIA 53m? 81 53708 (U RTS 16380) Docld: 70105980 Page 64 I I'd latest decision of which we are aware. As counsel for Mr. ditchell has stated, Chief Judge Bryan, new a Senior Judge of the Court of Appeals, held in a very similar case some years ago in the Eastern District of Virginia that it was, in his language, wholly proper for that Federal grand jury to recommend to the court that it make available the evidence that grand jury had heard to other government officials, there, prosecuting officials of the State of Virginia, and the Court did, in fact, grant the grand jury's request, with the caveat and caution to the local prosecutors that they try and use the information as far as practicable so as to minimize any impact on the Federal crimina proceedings which were then pending. It is my inderstanding that in this case, as well as in Judge Thomsen's decision in Maryland, the grand jury had not been discharged and had not yet completed all of its business at the time it returned that report and requested the transmission of the evidence. I might point out in that context that this grand jury, the June 5, 1972 grand jury of this Court, has returned an indictment and in a sense, although the grand jury has not been discharged and although it does have some business or may have some business before it, it has not acted before the return of a formal indictment, naming the movants whose counsel are here this morning to object to the receipt of that report ii ?wr' FOIA 58707 St 58708 (U RTS 16380) Docld: 70105980 Page 65 13 and the honoring of that recommendation. We think that demonstrates rather clearly, Your Honor that as a matter of constitutional power, this grand jury was acting within the scope of its lawful authority. Counsel have raised a question of practice in the District of Columbia and have suggested that sine 1911, at leas it has been the practice of the District of Columbia not to re- ceiva reports of that sort. I am not, personally, familiar with that practice. I will accept counsel's representation that it has not been the practice and I underscore that word, practice -- of grand juries in this District to return such reports. Nothing in the case cited by counsel for Messrs. Haldeman and Ehrlichman, however, supports the notion that the Court of Appeals for this Circuit has forbidden the de velopment of such a practice; nor is it fair to argue in this case that allowing this grand jury to submit this kind of re- port in this over?all setting would hetoken the advent of an undesirable practice. What seems to have been lost sight of at some point in the arguments this morning is that we are dealing with an unprecedented situation, Your Honor. This is the first time in over a hundred years that the country has been faced with the prospect of an impeachment investigation, trying to 1 aims. I FOIA 58707 58708 (URTS 15380} Docld: 70105980 Page 66 determing whether there are gounds for impeaching the President of the United States. As the Court well knows, this grand jury has been investigating matters and has returned an indictment which seemed to hear on that question. We believe it would he un- thinkable under our system of Government for this Court or any court to hold that this grand jury must remain mute when it feels it has heard evidence which is material to that question. There is no attempt here, as Your Honor knows, to intrude upon the responsibilities of any other branch. The Court is familiar with the nature of this particular report and can determine that there is no usurpation intended or worked by this grand jury. The 1911 decision by the Court of Appeals in the Poston case, on which counsel have relied, involved not the practice of a Federal grand jury in the District of Columbia or, indeed, Federal grand juries anywhere else. That case in- volved only the question whether the return of a very critical, malicious, it was alleged, report by a state grand jury in Virginia violated Virginia rules on the proper scope of grand jury activity. The Court simply held that there was no privileg in a libel suit for wilful causing of the circulation of that report. I come back to the Gaither case, Your Honor, which FOIA 581m? 8: 58708 (U RTS 16330) Docld: 70105980 Page 67 35 in light of the intervening developments in Federal Courts has expressly stated in this Circuit that Federal grand juries do have the power to return accusatory presentments, even though, as the Court will be able to determine, that is not what is at issue in this case. Counsel have also suggested that the Organized Crime Control Act of 1970,which does provide certain procedures by which a new institution, a special grand jury can provide re- ports on organized crime conditions or public corruption con- ditions, somehow implies that regular grand juries -- the grand jury whom I am representing this morning --do not have any such inherent constitutional power. That argument, I suggest, does not withstand analysis. Just the single proposition that was cited in the Senate Report in the 1969 report on the proposed legislation was Judge Weinfeld's 1953 decision in the application of United Electrical Workers case, which involved extremely different facts, which involved an accusatory presentment charging that the grand jury had overstepped its proper function in leveling charges of, in effect, perjury without indicting any persons, and which made specific recommendations to a Federal administra- tive agency about what action it should take, and to Congress about what legislative changes in delicate areas of national policy it should make. FOIA 58707 S8708 (URTS 16380) Docld: 70105980 Page 68 26 Nothing in the report before the Court this morning goes to that extreme. As I have said, Judge Weinfeld's deci- sion, with all due respect to him, has not been followed by any later Federal decision that I am aware of passing upon the power of regular Federal grand juries to submit reports to the courts that impanel them. Nothing in the 1970 Organized Crime Control Act was intended to deprive regular Federal grand juries of this power that the courts over the last twenty years have_sustained. Only this morning, Your Honor -- and I apologize to the Court we discovered some legislative history on that bill. I have made a copy of that available to Mr. Wilson at the outset and I have copies for other counsel, as well. In that report, Congressman Poff, who is new, I believe, a Justice of the Supreme Court of Virginia, and who at the time was the Floor manager for that bill, shortly before it was passed by the House and enacted into law, made the following statement which, with your indulgence, I will read to the Court, in explaining the statutory provision to give special grand juries under certain procedures the ability to file reports in this area. I quote from Volume 116 of the Congressional Record, this is the Daily Copy, Page October 7, IQID: "The United States Supreme Court has indiCated that Federal grand juries, like their early English FOIA 58707 8: 58708 (URTS 16380) Docld: 70105980 Page 69 and Colonial predecessors, may issue reports as well as render indictments. See, for example, Hanna v. Lash, 363 U. S. 420, 449, 1960; Jenkins v. McKoithen, 395 U. S. 411, 430, 1969. But the precise boundaries of that reporting power haVe not been judicially delineated. For this reason, the authority to issue reports relevant to organized crime investigations has been specifically conferred upon the special grand juries created by this Title. The Committee-does not thereby intend to restrict or in any way interfere with the right of regular Federal grand juries to issue reports as recognized by judicial custom and tradition.? We believe that that, Your Honor, should put to one side any implications that might be drawn from the 1970 Organized Crime Control Act. We think it is clear, then, that the Court has the power to receive the report from this grand jury and to act on its recommendation. Whether the Court should exercise its discretion to do so in this case is, I believe, the more troublesome issue, although we have made a strong submission stating our position that the Court should exercise its discretion to receive this report and to grant the grand jury's request. FOIA 58707 8: 58708 (URTS 16380) 70105980 Page 70 18 The factors that courts, including the District Court in Maryland and the District Court in Virginia, and the Fifth Circuit, have pointed to concerning the factors that should he considered will all illustrate why the request of this grand jury should be adopted. In open Court I feel it not appropriate to discuss the specifics of this report, to show how those factors would be advanced by granting the grand jury's request. But the factors include such issues as whether the report is an accusatory document, whether it will circulate charges which have not yet been brought to public attention, whether any persons who may incidentally he mentioned will have no other forums or remedies in which to protect their rights, whether it relates to a matter of profound public importance or is simply a private controversy. Those are the issues that the courts have looked to. Applying that calculus in this case, Your Honor, I believe ther can be no question that the need of the House of Representative to receive the information that the grand jury has submitted to the Court must be considered of supervening importance. This, obviously, is the judgment of the grand jury because they submitted the report to the Court. There is specific precedent. Your Honor may or may not have been aware of this in your hypothetical to Mr. Wilson, but in at least one instance a grand jury has made charges f} FOIA 58707 a 58708 (URTS 16330) Docld: 70105980 Page 71 i 79 about a sitting Federal Territorial Judge, who was subject to impeachment by the House of Representatives. The grand jury requested that its charges be sent to the House of Representative of the United States for the House to discharge its constitu- tional function to determine whether the charges were substan- tiated. That happened in 1511, and the House of Representative does today, to the best of our knowledge, in its precedents recognize that as an appropriate measure of cooperation between the branches of government, which are not at war but in coop- eration. The counsel for the President this morning, Mr. St. Clair, has stated that the President has authorized and directed him to make available to the House any of the in? formation that the President has submitted for use by the grand jury, and the question thus arises whether there is any longer any dispute here. We state that it is still an important question and that there still is a supervening need for the grand jury's request to be observed. As the Court will determine, the President?s directive to counsel may not necessarily be co- terminal with the content of what the grand jury has asked this Court to transmit. Therefore, that decision does not in any sense of the case meet the issue that we are before the Court here to discuss this morning; nor, I suggest, are the constrain FOIA 58707 8: 58708 (URTS 16380) Docid: 70105930 Page 72 an of Rule 6 of the Federal Rules of Criminal Procedure an obstacle to granting the grand jury's request. That rule codifies the general condition of secrecy of grand jury proceed ings. That rule, of course, has never been absolute and there are exceptions that are expressly provided for in the rule and the decisional law recognizes other exceptions. The learning that can be distilled from the rule and from the case law, including the decisions such as Judge Bryan? decision, passing on almost an identical legal question in much less compelling circumstances, is that whenever the public interest to be served is greater in disclosure than it is in secrecy, the court has the inherent power, which is codified in Rule 6, to make that grand jury material available. So counsel have focused on the question whether a proceeding before the House Judiciary Committee comes within the ambit of the rule, which talks about releasing grand jury material for cause preliminarily to or in connection with a judicial proceeding. Several points can be made on that subject, Your Hone? One is that it is unthinkable that in promulgating Rule 6(a) the Supreme Court or Congress -- in not attempting to modify or abrogate it while it lay before Congress prior to its effec- tive date -- intended to cut off the right of a Federal grand jury which has heard evidence on the most profound issue of I HI '1 \fde -ing Doe v. Rosenberry, one of the cases to which he referred FOIA 58707r 58708 (URTS 16380} Docid: 70105980 Page 73 3,1 Federal concern to make that evidence available through the proper judicial forum to the institution which is explicitly recognized in the Constitution as having primary responsibility for passing on evidence of this sort. Nothing in the rule can be read to say, for example, that the court has the power to make available grand jury in- formation in an accident case, where someone slipped on the sidewalk, because that would involve a judicial proceeding, but that court and grand jury must stand moot and decline to make available evidence of this sort to the Committee on the Judiciary of the House of Representatives. Beyond that, Your Honor, as the cases that we have in fact cited in our memorandum, and in fact the citations were included on the list that we did provide to Mr. Wilson, includ- this morning, those cases show that what constitutes a judicial proceeding for purposes of Rule even assuming that rule is somehow working some constraint or may work a constraint on the Court?s power, the scope of the term, judicial proceeding, must be flexibly construed, as it has been. We have cited to you and to Mr. Wilson a very recent decision of the Court of Appeals for the Seventh Circuit saying that the public interest in disclosing grand jury material was to be advanced by making this information available to a Chicago police disciplinary proceeding, in nature of a judicial i} FOIA 58707 58708 16330) Docld: 70105980 Page 74 a2 proceeding, although not yet before the courts. It is hardly imaginable, Your Honor, that Rule 6 allows a grand jury to make available evidence in a disciplinary case of that sort and requires this grand jury in this Court to ignore the evidence that the grand jury suggests is materiah to the inquiry of the House'of Representatives. Beyond that, there have been some discussions of what constitutes judicial proceedings for one purpose or another. Kilbourn v. Thompson, of course, was a contempt_case. We are concerned here about impeachment, which is specifically recog- nized in Article I of the Constitution. The House is given the sole power to impeach and the Senate is given the sole power to try impeachment. The grounds for impeachment are the alleged commission of treason, bribery or other high crimes and misdemeanors. If the House prefers its charges, the charges are tried before the Senate sitting as a Court of Impeachment, on their oaths just as a jury, with the Chief Justice of the United States presiding. It would he an unreasonable and unrealistic construc- tion of Rule we submit, to take the view that within the broad scope that has been given to that rule to make available grand jury material where the over-all public interest is bette served by piercing the normal veil of secrecy, that the FOIA 58707 St 58703 (URTS 16380) Docld: 70105980 Page 75 impeachment process which is of such tremendous importance to the country may not have access to this material. Counsel have also raised a question that is of concern to the Court, of concern to the Government, as well as to them I and their clients. That is the issue of pretrial publicity and the effect that honoring the grand jury's request may have. It is important in this context, I believe, to take into account the situation in which we already find ourselves and in which we will be inevitably, irrespective of what happens this morning as a result of these arguments. There has been already a vast amount of publicity. No one can deny that. The publicity, however, is not of the kind that has been accusatory or inflammatory or one?sided. All of the parties to these disputes have had the opportunity to state their positions and have done so in public forums. All the Supreme Court has held on the question of pretrial publicity is not that the Court should endeavor to get jurors who are ignorant of what is going on in the world around them. In fact, that might be the worst kind of jury to have in any case, a jury that was so ignorant that it could be found that they never read newspapers or never watched televisio What the Court has said is that the trial judge must try to impanel a jury of persons who can lay aside any impressio they may have from what they have heard outside the courtroom and decide the case only on the facts in court. I15 tug FOIA 58707 St 58?08 (URTS 16380) Docld: 70105980 Page 76 84 Nothing that has gone on so far, Your Honor, we be- lieve, has endangered the ability of this Court at the proper time to select an adequate and impartial jury that can try the Defendants whose counsel are here this morning. Beyond that, the question of publicity has to some extent been rendered academic because of the President's state- ment that he will in fact supply all of the evidence to the House Judiciary Committee that has been made available to the grand jury. So that to the extent that anything in the report that this Court has received from the grand jury includes that kind of material, it will be before the House anyway. To the extent there are other items, the Court will be in a position to decide whether they would add so incrementally to the publicity that the Court should deny the grand jury?s request to make available what it has heard and what it has received. We finally would say, Your Honor, that it is prematur to consider the speculative possibilities about pretrial publi? city as a ground for suppressing this report, which is a Commun cation from the grand jury to the Court with certain recommenda- tions. As the Court of Appeals for this Circuit has made cle: in accord with the decisions of every Circuit, as, indeed, Judge Gagliardi has recognized in the case involving Messrs. Mitchell and Stans, the preper time to assess pretrial publicity is at the impaneling of the petty jury. That is the ?may FOIA 58707 8: 58708 (URTS 16380) Docid: 70105980 Page 77 3.5 only time to determine whether pretrial publicity has become prejudicial and whether that prejudice cannot be cured by some other remedies, such as a continuance or the normal method of scrupulously screening the veniremen to determine whether they can in fact lay aside any impressions they may have. It is quite premature, on March the 6th, to suppress this report, while the House of Representatives is actively at work considering this question of vital importance to the nation, as counsel for the Committee and the minority and the President have acknowledged today, and to delay these proceedings, this report until the time of trial, which Your Honor has indicated will not begin until September. There is an accommodation between the rights of the Defendants here and the rights of the people speaking through the grand jury and speaking through the House of Representatives. There is no conflict. There is no inevitable prejudice to the Defendants. If the Court grants the grand jury's request that this material be transmitted to the House forthwith, we submit that the issue of prejudice may well, as the Court of Appeals has said, in Jones v. Gasch, evaporate by the time the Court actually proceeds to impanel a jury for these Defendants. FOIA 58707 8: 58708 (URTS 15330) Docld: 70105980 P?age 78 THE COURT: Thank you, Mr. Lacovara. In View of the conference we had at the bench a while ago, I am going to recess for lunch until a quarter after two, so you gentlemen can get together in the meantime. MR. LACOVARA: Thank you, Your Honor. (Whereupon at 12:40 the hearing was recessed pursuant to reconvening at 2:15 p.m. of the same day.) Sekal fellows FOEA 581m? 8c 58708 16380) Doctd: 70105980 Page 79 Imfmm mum?h?mm?x?m?w 4 I a ya.? can cum a noun ?Mam?. mm: mum. wmm?whumummh? Maugmumm. Uranium ?mwmm. mm: W. mm? 1mm. mm,xw_. 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