Don [Fulsom’s] class has been most fortunate to have his personal experience to help the students toward a more perfect understanding of a chapter in American life that should have warned us of the vital purposes of politics and government. The warning stands.
– Jim McManus
In 1975, Nixon became the first president to testify before a grand jury. The 297-page transcript of his eleven hour testimony had never before been released—until now.
Pre-eminent Watergate scholar Stanley Kutler, along with the American Historical Association, the American Society for Legal History, the Organization of American Historians, and the Society of American Archivists, supported by sixteen declarations by “persons knowledgeable about the historical significance of Watergate and Nixon’s testimony,” petitioned the U.S. District Court for the District of Columbia to request an order for the release of President Nixon’s 1975 grand jury testimony, sealed at the National Records Administration for over three decades. In July of 2011, Chief District Judge Roy Lamberth ordered President Richard Nixon’s Grand Jury testimony to be unsealed.
Lamberth stated that “the special circumstances presented here – namely, undisputed historical interest in the requested records – far outweigh the need to maintain the secrecy of the records. The Court is confident that disclosure will greatly benefit the public and its understanding of Watergate without compromising the tradition and objectives of grand jury secrecy.” Grand jury testimony is kept secret both to protect innocent people (since grand jury hearings occur prior to indictment) and to protect witnesses who might otherwise be reluctant to testify.
There are exceptions to grand jury secrecy. Federal courts have found that Rule 6(e), the Federal Rule that codifies the grand jury secrecy obligation, “does not mean eternal secrecy for historically-significant information.” The Public Citizen brief petitioning for Nixon’s testimony to be released cites a series of relevant factors noted in the 1997 ruling In re Petition of Craig used to determine whether grand jury testimony should be released. These factors are: (i) the parties seeking disclosure; (ii) the party opposing disclosure; (iii) the reason the disclosure is being requested; (iv) the specific information being sought; (v) how long ago the grand jury hearings took place; (vi) whether those involved are still living or are deceased; (vii) the extent to which the grand jury records have already been made public (legally or otherwise); (viii) whether witnesses who could be affected by disclosure are still living or are deceased; and (ix) any continuing need to maintain secrecy.
Prior to the court’s ruling on the Nixon testimony, John Dean wrote an article addressing these nine criteria. The parties requesting disclosure are “a ‘Who’s Who’ of Nixon historians, and their professional organizations… that have a professional interest in the historical Nixon.” At the time the article was written, no one had yet opposed the petition. The disclosure is sought based on possible content of the testimony, which was not at the time known but was suspected to include information on the infamous eighteen and a half minute gap in the White House tapes; Nixon’s role in altering transcripts that were submitted to the Judiciary Committee during the impeachment hearings; and Nixon’s use of the IRS to harass political foes; and illegal or suspect campaign contributions, such as that of Howard Hughes. (All of these topics, except the altered transcripts, were indeed discussed at length during the grand jury proceedings.)
Even if this information was not contained in the testimony, wrote Dean, there is still a compelling case to release the material due to the historical significance of Nixon being the first president to testify before a grand jury and to resign from office. The records are over thirty-five years old, and Public Citizen listed thirty-three of the persons who could be affected by the testimony as deceased. Dean himself (who is still alive, clearly, and quite likely to be affected by the release of the testimony) did not object, and he wrote that he could not think of anyone alive who would be negatively affected by the testimony’s release. Additionally, a significant portion of the testimony had already been released—much of it leaked to columnist Jack Anderson, as well as used in the indictments of H.R. Haldeman, John Ehrlichman, and John Mitchell. Finally, Dean asserted that there were no additional reasons that might call for secrecy; in fact, traditional reasons for maintaining the secrecy of grand jury testimony simply did not exist in this case.
Prior to the testimony’s release, Stanley Kutler says that “I’m betting he told the truth,” since even Nixon knew that lying to a grand jury would make him vulnerable to perjury charges. But Nixon also knew that breaking and entering, warrantless wiretapping, criminal conspiracy, bribery, and obstruction of justice were illegal, and he had no qualms about committing those crimes. Furthermore, even if Nixon truly believed that the President of the United States was not subject to the same laws as the rest of the American public, presidential immunity from the law would logically extend to perjury—and perjury, after all, would have been the least of his crimes.
The testimony was released at noon on November 10, 2011. We, as students enrolled in American University’s course entitled Watergate: Constitutional Crisis, under the wise guidance of Professor Don Fulsom, former Washington Bureau Chief for United Press International and a White House correspondent during the Watergate scandal, took the release as a challenge, seeking to evaluate the testimony to determine whether Nixon told the truth, as Kutler believed he would, or followed his traditional path of evading questions and presenting fictionalized versions of events. This report contains our findings.