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Petitioner, Bruce Craig, an historian and doctoral candidate at the American University, respectfully petitions this Court for an order releasing historically significant grand jury records pertaining to a McCarthy era espionage investigation. As his detailed affidavit states, Craig is writing a dissertation on Harry Dexter White, a high-ranking Treasury Department official accused of being a Communist spy. Affidavit of Bruce Craig Par. 1 (September 15, 1995) ("Craig Affidavit"). White appeared before a special grand jury in March 1948 to answer these allegations. That August, he appeared before the House Un-American Activities Committee and denied the charges; two days later, he died. Petitioner's dissertation seeks to address the many unanswered questions that remained after White's untimely death. Id. Par. 5.

Craig has already examined all available sources of information on the case. Access to the grand jury records is essential to the completion of his research on this important and troubling episode in American history. Thus, petitioner asks this Court to exercise its discretion under its inherent supervisory authority and the All Writs Act, 28 U.S.C. 1651, to unseal the transcript of White's testimony before the grand jury.(See Footnote 1)

As Craig's affidavit attests, and as this memorandum spells out more fully below, there is an overwhelming public interest in disclosure of the grand jury transcript and little interest in maintaining its secrecy. The public interest stems from the historical importance of the White case as a medium for understanding the impact of Communist subversion, real and imagined, on American politics. White died before he had a chance to defend himself from the full range of allegations against him. After his death, he became a symbol of the supposed Communist infiltration of Washington's New Deal establishment. Not only is it likely that the grand jury records provide White's perspective on the charges against him, but the records will provide insight into the extent of the allegations by revealing the questions posed by the prosecutors.

In contrast to the strong public interest in learning what transpired before the grand jury, there is little or no interest in keeping these records from the public. The passage of almost fifty years since the grand jury's investigation concluded has eliminated any governmental interest in continuing grand jury secrecy. Most of the principals have died, and the tensions surrounding the incident have long since subsided. Accordingly, these grand jury records should be disclosed.

In order to appreciate the significance of the grand jury records in this case, the interest of petitioner and the public generally in disclosure, and the absence of any overriding interest in continued secrecy, it is necessary to review the events underlying the grand jury proceedings. Craig's affidavit sets forth the factual background of the White case in more detail.

A. WHITE AND HIS ACCUSERS

Harry Dexter White, an economist by training, began his career in government service at the Treasury Department in 1934. At the height of his career, White was named Assistant Secretary of the Treasury in 1945 and American Executive Director of the International Monetary Fund in 1946. During his decade-long tenure at the Treasury Department, White was entrusted with substantial responsibility for shaping U.S. international monetary policy. He managed the two-billion dollar Stabilization Fund of the U.S. Treasury, represented the department on the Economic Defense Board and served as a trustee of the Export-Import Bank. Most importantly, along with noted British economist John Maynard Keynes, White was the co-architect of the Bretton Woods agreements in 1944-45, which created the framework for the post-war economic structure by establishing the World Bank and the International Monetary Fund. Craig Affidavit Pars. 8-11.

Rumors of White's ties to the Communist underground had circulated in Washington since 1939. In 1948, these suggestions were transformed into public accusations of espionage by Elizabeth Bentley and Whittaker Chambers. Bentley figured prominently in many of that era's conspiracy dramas, beginning with her confession in 1945 that she had been a member of the Communist Party and part of a Russian spy ring headed by her lover, Jacob Golos. Bentley claimed that White had been a member of the "Silvermaster Group", a communist underground cell in the Treasury Department in the early 1940s. She claimed that White had passed confidential documents to several of her contacts. Documents since released by the FBI indicate that Bentley never actually met White and that all her information about him was gained second-hand from conversations she claimed to have overheard from the kitchen of the Silvermaster residence. Bentley initially characterized White as a minor player in the conspiracy, but after his death her estimation of his importance grew until by 1953 she claimed he was "one of the most important members of the [Silvermaster] group". Craig Affidavit Pars. 12-17, Exhibits 3 & 4.

Chambers was also a confessed spy. He claimed that White had met with him several times between 1935 and 1938, when his own involvement with the communist underground ended. Though he alleged that White had given him confidential information several times during this period, he nonetheless characterized him as one of his "least productive" contacts. In 1948, Chambers joined Bentley in testifying against White before the House Un-American Activities Committee ("HUAC"). Craig Affidavit Pars. 19-21, Exhibit 5.

B. WHITE'S RESPONSE TO THE CHARGES

In private interviews with the FBI and his public appearance before HUAC, White insisted that he was not a Communist and had never given unauthorized information to a foreign power. His testimony before the grand jury has never been made public. At the time of his death -- just two days after his appearance before HUAC -- rumors that he had committed suicide to avoid the embarrassment of a perjury trial began to circulate. An exhaustive search of the historical record has revealed no evidence that this was true. Nor is there any direct evidence that he was ever a part of a Communist conspiracy. After years of investigation, the FBI was only able to the conclude that White had "associated with" other alleged members of the groups; there was no evidence that he was actively engaged in espionage. Similarly, before White's death, the grand jury declined to issue an indictment against him. Craig Affidavit Pars. 24-30, Exhibits 8-12.

C. EVENTS AFTER WHITE'S DEATH

White's untimely death forestalled further investigation of his case by HUAC, but the FBI and several Senate subcommittees continued to pursue leads in the matter through the 1960s. Throughout the Cold War era, the FBI frequently provided information on White to reporters and politicians as background for various reports on alleged communist subversion in government agencies. Craig Affidavit Par. 31.

In fact, the allegations against White arguably became more politically significant after his death. In 1953, U.S. Attorney General Herbert Brownell launched a general attack on previous Democratic administrations as "soft on Communism." Brownell asserted that President Truman had appointed White to the executive board of the International Monetary Fund knowing that White "was a Russian spy." The remark touched off a major controversy. Former President Truman appeared on television to deny the charges, provoking FBI Director J. Edgar Hoover to appear before a Congressional committee to denounce Truman and present his own version of the White story. Craig Affidavit Pars. 32-36.

The rumors broadened, and it was alleged that White had not only conveyed secret information to the Soviets but had actively subverted American foreign policy in his work at the Treasury Department. The controversy finally faded from public attention when President Eisenhower intervened. Craig Affidavit Pars. 35-36. But Harry Dexter White had already been convicted in the court of public opinion. Along with Alger Hiss and others, he remains a symbol of the alleged communist infiltrations of the Cold War era. Because of his untimely death, many questions about the White story remain. The extent of Communist influence over prominent New Deal liberals like White is still unknown; what is known is that the allegations against White and others had a significant impact on domestic politics in the 1950s and beyond. The history of this important period in American government cannot be complete without a greater understanding of these issues. Craig Affidavit Par. 37.

D. NEED FOR THE GRAND JURY RECORDS

Mr. Craig has thoroughly examined all available sources of information on the White case. These records include 45,000 pages of FBI records related to the Harry Dexter White case, Elizabeth Bentley, and the "Silvermaster" interlocking subversion. In addition, he has reviewed Treasury Department files on White, as well as the collections at the International Monetary Fund, the Library of Congress, several Presidential libraries, and the Princeton and Harvard Law School libraries. Craig Affidavit Pars. 38-43.

The transcript of White's testimony before the grand jury, consisting of 79 pages, is located at the National Archives in New York. Craig Affidavit Par. 47. These records are essential for the completion of Mr. Craig's investigation. The transcript is the only available source that is likely to provide White's perspective on the full range of allegations against him.

The public interest in disclosure of these records outweighs any continuing interest in grand jury secrecy. The Harry Dexter White case is a significant episode in the history of American politics, highlighting the tensions present in the early Cold War era. The grand jury record is key to making an objective historical judgment about the charges against White.

I. THE SUPERVISORY COURT HAS INHERENT DISCRETION OVER GRAND JURY RECORDS.

It is a well-established principle that the supervising trial court has inherent discretion over grand jury transcripts and records. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979); United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986); accord United States v. John Doe I, 481 U.S. 102 (1987); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233-34 (1940). Accordingly, as the overseer of the grand jury proceedings and the custodian of the grand jury records, see Levine v. United States, 362 U.S. 610, 617 (1960); United States v. Procter & Gamble Co., 356 U.S. 677, 684-85 (1958) (Whittaker, J., concurring), this Court has the authority to determine whether petitioner will have access to these grand jury records.

Rule 6(e) of the Federal Rules of Criminal Procedure provides generally for nondisclosure of matters occurring before the grand jury, except when disclosure is permitted in the supervisory court's discretion. Fed. R. Crim. P. 6(e); see Advisory Committee Notes to Rule 6(e)("[t]his rule continues the traditional practice of secrecy on the part of members of the grand jury, except when the court permits a disclosure"). Although Rule 6(e) identifies some circumstances in which the need for disclosure has been found to be greater than the need for grand jury secrecy, this enumeration does not divest the district courts of their inherent supervisory authority to grant access to grand jury records. Indeed, Rule 6(e) has periodically been amended to embody other exceptions to grand jury secrecy that have previously evolved in the courts. See Fed. R. Crim. P. 6(e), Advisory Committee Notes to 1977 Amendment (allowing government attorneys to disclose grand jury materials to other government personnel); Fed. R. Crim. P. 6(e)(3)(C), Advisory Committee Notes to 1983 Amendment (permitting disclosures from one federal grand jury to another); Fed. R. Crim. P. 6(e)(3)(A)(ii), Advisory Committee Notes to 1985 Amendment (allowing government attorneys to disclose grand jury materials to state government personnel). Not only has the rule been amended to reflect evolving judicial trends, but the Supreme Court has recognized that "Rule 6(e) is but declaratory of [the principle regarding] disclosure as committed to the discretion of the trial judge." Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959).

Various other courts, including the Court of Appeals for this Circuit, have also recognized that federal district courts have inherent supervisory authority to order disclosure of grand jury transcripts in situations that fall outside the Rule 6(e) exceptions to grand jury secrecy. In re Biaggi, 478 F.2d 489 (2d Cir. 1973); accord In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1267-68 (11th Cir.), cert. denied, 469 U.S. 884 (1984)("The Judge Hastings Case"); In re Bullock, 103 F. Supp. 639 (D.D.C. 1952); see In re Application of Deborah Johnson, 484 F.2d 791 (7th Cir. 1973)("The Black Panther Case"); In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1227-28 (D.D.C. 1974), mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974)(en banc)("The Watergate Case"); In re Presentment of Special Grand Jury Impaneled January 1969, 315 F. Supp. 662 (D. Md. 1970)("The Rayburn Garage Case"); but see In re June 20, 1977 Concurrent Grand Jury Investigation (J. Ray McDermott & Co., Inc.), 622 F.2d 166, 172 (5th Cir. 1980). Indeed, in a case that is remarkably similar to this one, a history professor sought access to the grand jury transcripts pertaining to the indictments of William Remington, a prominent public official who was accused by Elizabeth Bentley of being a Communist spy. In re Petition of May, 13 Media L. Rep. (BNA) 2198 (S.D.N.Y. 1987) (a copy of this decision is attached as Attachment 1). Judge Whitman Knapp exercised the court's discretion and unsealed the grand jury transcripts based on the historical interest in the case. Id. at 2199; cf. Hiss v. Department of Justice, 441 F. Supp. 69 (S.D.N.Y. 1977).

Although the government has often taken the position that district courts may unseal grand jury records only for reasons that are set forth in Rule 6(e), the above cases have held that courts retain inherent authority to unseal grand jury records for other reasons, including historical significance, as well. Moreover, the government appears to have abandoned the restrictive view of Rule 6(e) it held at one time. Thus, in In re Petition of Newman, Misc. No. 87-0230 (D.D.C. Sept. 17, 1987), summarily aff'd, No. 87-5345 (D.C. Cir., April 20, 1988) (opinions attached as Attachments 2 & 3), in which an historian sought access to the transcripts of the grand jury proceedings that led to the McCarthy-era indictments of Owen Lattimore, the government initially argued that district courts have no authority to disclose grand jury records beyond that expressly conferred by Rule 6(e), and the district court and court of appeals denied the petition on that basis. However, while Professor Newman's petition for a writ of certiorari was pending before the Supreme Court, the government affirmatively urged the same district court to disclose grand jury records pertaining to Representative Fernand J. St. Germain to the House of Representatives' Committee on Standards of Official Conduct, even though such a disclosure falls outside the terms of Rule 6(e). Department of Justice's Memorandum in Support of Committee's Application for Order Permitting Disclosure of Grand Jury Materials, In re Possible Violations of 18 U.S.C. Sec. 201, Misc. No. 88-253 (D.D.C. filed Sept. 2, 1988) (copy attached as Attachment 4). Based, in part, on the government's position favoring disclosure, the district court granted the House Committee access to the St. Germain grand jury records. In re Possible Violations of 18 U.S.C. Sec. 201, Misc. No. 88-253 (D.D.C. Sept. 6, 1988) (copy attached as Attachment 5). In the Supreme Court, the Solicitor General attempted to reconcile the positions taken in these two cases by abandoning the government's earlier argument in Newman that courts have no inherent authority over grand jury records. Instead, the government acknowledged the existence of courts' inherent authority to unseal grand jury records for reasons beyond those set forth in Rule 6(e), but argued that it was appropriate for the courts to deny access in Newman. Brief for the United States in Opposition to Petition for Writ of Certiorari, in Newman v. United States, No. 88-548 (Nov. 1988) (copy attached as Attachment 6). The Supreme Court denied the petition for a writ of certiorari. 109 S. Ct. 784 (1989).

Subsequently, the government did not oppose the petition of another historian seeking access to grand jury records related to a 1946 race riot in Columbia, Tennessee; and the court granted the petition. In re Petition of Gail Williams O'Brien, Gen. Docket No. 3-90-X-35, (M.D. Tenn. May 16, 1990) (copies of the government's response to the petition and the order are attached as Attachments 7 & 8).

In sum, as numerous courts have recognized, and even the government now appears to concede, federal district courts retain inherent supervisory authority to unseal grand jury records for reasons that are not contained within Rule 6(e). Thus, the question for this Court is whether to exercise that discretion to disclose the grand jury records pertaining to Harry Dexter White.

II. THE PUBLIC INTEREST IN DISCLOSURE OUTWEIGHS THE INTEREST IN CONTINUED GRAND JURY SECRECY IN THIS CASE.

In determining whether to disclose grand jury materials, the Court must balance the public interest in disclosure against the interest in continued grand jury secrecy. The Supreme Court has framed the balancing test as follows:

[D]isclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and . . . the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification.

Douglas Oil, supra, 441 U.S. at 223; accord Pittsburgh Plate Glass, supra, 360 U.S. at 400. While grand jury secrecy serves important functions, particularly during the grand jury proceedings, it may give way to other overriding interests, such as those protected by the First Amendment. Butterworth v. Smith, 494 U.S. 624 (1990) (state cannot punish a witness's disclosure of his grand jury testimony after the grand jury investigation ends). In this case, where the public has a substantial interest in full disclosure of an historically significant episode, and disclosure of the records of these grand jury proceedings will serve the public interest without impinging on the accepted purposes of grand jury secrecy, these grand jury records should be released.

A. The Public Interest Compels Disclosure of the Grand Jury Records Pertaining to Harry Dexter White.

Petitioner Bruce Craig seeks to reconstruct the complete record in this case in order to write an objective, scholarly study of this chapter of history. Craig Affidavit Pars. 1, 44. In other instances, access to grand jury records has enhanced the thoroughness and scholarly insight of academic studies of controversial cases and investigations with political overtones. Affidavit of Page Putnam Miller, Director of the National Coordinating Committee for the Promotion of History Par. 4 (Sept. 19, 1995) ("Miller Affidavit"); see, e.g., G. May, Un- American Activities: The Trials of William Remington (1994); H. Hunt, The Case of Thomas J. Mooney & Warren K. Billings (1971); W. Young & D. Kaiser, Postmortem: New Evidence in the Case of Sacco and Vanzetti (1985). Petitioner and the public have an interest in full and accurate disclosure of events that have shaped this country's political history, as Judge Knapp recognized in Petition of May, slip op. at 4. Miller Affidavit Pars. 4-7; Affidavit of John E. Haynes, Manuscript Historian for 20th Century Political History, Library of Congress Pars. 3-5 (Oct. 18, 1995) ("Haynes Affidavit").

The public has a substantial interest in disclosure because of the need to complete the historical record of this troubling period in American history and to scrutinize the role that the grand jury played in that era. The grand jury records are essential to such an inquiry because they may contain White's responses to the allegations against him. Because of White's untimely death, the grand jury transcripts are the only potential source of information on White's perspective on all of the charges made against him. Miller Affidavit Par. 5; Haynes Affidavit Par. 4-5. Even if White refused to respond in front of the grand jury, knowledge of the questions posed by prosecutors would shed new light on the incidents surrounding the charges against him.

In Petition of May, supra, Judge Knapp unsealed grand jury transcripts because of the public interest in an accurate and complete historical record of the McCarthy-era perjury trial of William Remington. Petition of May, No. M 11-189 (S.D.N.Y. Jan. 20, 1987). Judge Knapp emphasized the "undisputed historical significance" of that matter, and concluded that "the public has a strong interest in having its understanding of the administration of justice in this case based on complete and accurate historical evidence." Id. at 4. Similarly, in Petition of O'Brien, supra, the Court released grand jury records concerning a race riot in Columbia, South Carolina, in response to petitioner's argument that the public had a strong historical interest in that important episode in post-war race relations. Petition of O'Brien, Gen. Docket No. 3-90-X-35, (M.D. Tenn. May 16, 1990)

In other contexts, courts have ordered disclosure to allow the public to separate rumor from truth. Thus, in In re Biaggi, supra, 478 F.2d 489, Representative Mario Biaggi, then a candidate for Mayor of New York City, denied charges that he had invoked the Fifth Amendment in response to grand jury questions about his finances and sought release of portions of the grand jury transcripts that he claimed would show those charges to be false. Judge Friendly, writing for the Court of Appeals, rejected Representative Biaggi's request for selective disclosure, and affirmed the district court's order of full disclosure of his grand jury testimony for the purpose of uncovering the truth behind the campaign charge. 478 F.2d at 494 (supplemental opinion). Complete disclosure revealed that Representative Biaggi had refused to answer relevant grand jury questions, while his representations and the selective disclosure that he sought would have concealed his refusals to respond. Id. Similarly, in The Rayburn Garage Case, supra, 315 F. Supp. 662, the court ordered public disclosure of a grand jury presentment, which the government refused to prosecute, because of press disclosures regarding the scope of the grand jury's investigation and press speculation that the grand jury had recommended the indictment of people who, in fact, had not even been investigated. The Rayburn Garage Case, supra, 315 F. Supp. at 678-79.

In other situations, courts have ordered disclosure where release of grand jury materials would provide public scrutiny of allegedly improper governmental actions. For example, in the Rayburn Garage Case, supra, a grand jury prepared a presentment stating that it wanted to charge certain individuals with violations of the law in conjunction with the construction of the garage of the Rayburn House Office Building. Although the United States Attorney concurred in the decision of the grand jury, the Attorney General directed the United States Attorney not to sign the indictment. The district court determined that the presentment should be publicly disclosed in order to subject the executive's decision not to sign the indictment to the scrutiny of an informed electorate. 315 F. Supp. at 677-78; cf. Petition of May, supra, slip op. at 4 (alleged grand jury abuse contributed to strong public interest in disclosure). (See Footnote 2)

So here, the politically charged nature of the grand jury's investigation of Harry Dexter White counsel in favor of disclosure of the grand jury records. Although Mr. Craig has combed through thousands of documents, there are many unanswered questions. Without access to the grand jury transcripts, Mr. Craig cannot determine how or if White responded to all of the charges against him, whether his testimony there differed from his later public testimony, or why the grand jury failed to indict White. Thus, the public has an overriding interest in uncovering the historical truth, which, as demonstrated below, outweighs whatever remnants of grand jury secrecy persist.

B. The Interest In Grand Jury Secrecy Has Eroded.

Grand jury secrecy is designed to serve certain functions. The Supreme Court has identified five traditional rationales for maintaining grand jury secrecy, none of which is applicable here:

1) To prevent the escape of those whose indictment may be contemplated; 2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; 3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; 4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; 5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

United States v. John Doe I, supra, 481 U.S. at 110 n.5 and Douglas Oil, supra, 411 U.S. at 219 n.10 (quoting United States v. Procter & Gamble Co., supra, 356 U.S. at 681 n.6). Where continued grand jury secrecy serves none of these legitimate interests, courts have allowed disclosure of grand jury records. See Butterworth v. Smith, supra (Court struck down statute prohibiting witness from disclosing his grand jury testimony because free speech concerns outweighed interests in continuing grand jury secrecy); see, e.g., United States v. Hughes, 413 F.2d 1244, 1255-57 (5th Cir. 1969).

The first three reasons for secrecy no longer apply where, as here, the grand jury has concluded its investigation and has been discharged. See United States v. Moten, 582 F.2d 654, 663 (2d Cir. 1978); The Judge Hastings Case, supra, 735 F.2d at 1274; see also United States v. Socony-Vacuum Oil Co., supra, 310 U.S. at 234 ("[A]fter the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it"). Similarly, the fifth justification for secrecy is inapplicable because it was common knowledge that White was under investigation. The Judge Hastings Case, supra, 735 F.2d at 1274. Indeed, this factor may even counsel in favor of disclosure because White may have been an innocent man, who was convicted in the court of public opinion, but never had the opportunity to answer all of the charges against him because of his untimely death.

The only remaining rationale for grand jury secrecy is the general goal of encouraging free disclosure before grand juries by those who have information about crimes. This rationale for secrecy continues even after a grand jury has been discharged because "[f]ear of retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties." Douglas Oil, supra, 411 U.S. at 222.

However, in Petition of May, supra, the court found that disclosure of grand jury transcripts 35 years after the fact would not have any such deterrent effect, noting that "the government did not dispute our suggestion that no witness would have been deterred from testifying had he or she been informed that the grand jury minutes might be disclosed after the passage of 35 years." Slip op. at 3-4, n.1. Even more so than in Petition of May, disclosure of the White grand jury records will not lead to the adverse results feared because petitioner is not asking for release of any witness statements, but instead, is only asking for the transcript of White's testimony. To the extent that the identities of the accusing witnesses and their charges are revealed in the questions posed of White, disclosure of White's testimony will not discourage candid witness disclosure before grand juries for several reasons.

First, there is no possibility of reprisal from the now- deceased subject of the investigation. Even prior to White's death, disclosure of the grand jury transcripts would not have increased the possibility of retaliatory action because White and his friends knew, from the HUAC hearings, of the damaging testimony against him. See Douglas Oil, supra, 411 U.S. at 222 n.13 (prior disclosure to witnesses' employers lessened likelihood that further court-ordered disclosure would lead to retaliation).

Second, to the extent that nondisclosure is predicated on a desire to protect witnesses from retribution or embarrassment, this purpose will not be served here, where the grand jury witnesses -- Elizabeth Bentley and Whittaker Chambers -- are now dead. The prior public revelation of the identities and charges of many of the grand jury witnesses lessens the possible deterrence effect that disclosure of the transcripts may have. Thus, release of the transcripts will not significantly heighten the risk of embarrassment to those witnesses whose identities are already known. Moreover, the courts have recognized that, where there has been extensive disclosure of witnesses' statements, the reasons for continued secrecy are diminished. See The Watergate Case, supra, 370 F. Supp. at 1229-30 (court determined that the need for disclosure outweighed any remaining interest in grand jury secrecy, in part because those other individuals identified in Watergate grand jury report had already been the subject of considerable public testimony apart from the report). Thus, since both Bentley and Chambers testified before congressional committees, and also discussed their charges openly and often, any disclosure of the substance of their grand jury statements through the questioning of White before the grand jury will have no deterrent effect. Accord Douglas Oil, supra, 441 U.S. at 222 n.13; U.S. Industries, Inc. v. United States District Court, 345 F.2d 18 (9th Cir. 1965).

Third, grand jury testimony is now so routinely disclosed at trial that it weakens any argument that disclosure will deter future witnesses from testifying before grand juries. As a result of the 1970 amendments to the Jencks Act, 18 U.S.C. Sec. 3500, and the 1977 amendments to the Federal Rules of Criminal Procedure, codified in Rule 26.2, a trial witness' grand jury testimony is now automatically disclosed to a defendant after the witness testifies at trial or at a pretrial hearing, and hence the release of grand jury testimony has become an everyday occurrence. Thus, as the Second Circuit has concluded:

Every sophisticated grand jury witness knows that, if he becomes a witness at trial, his grand jury testimony will most likely be revealed to the public. For future witnesses trying to decide whether to testify before grand juries, the marginal deterrent effect of releasing one more transcript on the facts of this case can only be trivial.

Executive Securities Corp. v. Doe, 702 F.2d 406, 409-10 n.4 (2d Cir.), cert. denied, 464 U.S. 818 (1983). In addition, the circumstances in this case are unique so that it is implausible to claim that release of 1948 transcripts in 1995 will have any deterrent effect on future grand jury witnesses.

In sum, the reasons for grand jury secrecy are virtually eliminated here with the discharge of the grand jury and the passage of more than forty years. It has been recognized in other contexts that interests in secrecy diminish over time. See Schmerler v. FBI, 696 F. Supp. 717, 721, 722, reh. denied, 700 F. Supp. 73 (D.D.C. 1988) (interests in secrecy of FBI investigation greatly diminished under Freedom of Information Act, 5 U.S.C. Sec. 552, after passage of 50 years); Wilkinson v. FBI, 633 F. Supp. 336, 345 (C.D. Cal. 1986) (age of 20-40 year old documents and diminished privacy interest of those mentioned in such documents counsel in favor of disclosure under the Freedom of Information Act); Exec. Order No. 12,958, 60 Fed. Reg. 19825 (1995) (classified records are automatically declassified when they are more than 25 years old with limited exceptions). Although grand jury secrecy serves an important function during, and shortly after, the grand jury proceedings, the justifications for secrecy have little weight forty years after the proceedings have ended when most of the principals have died. Thus, in the circumstances of this case, the traditional rationales for grand jury secrecy no longer apply, or do so only with greatly diminished force.

1 Petitioner has followed the procedure established by the Supreme Court for seeking access to grand jury records. In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 225 (1979), the Court stated that "those who seek grand jury transcripts have little choice other than to file a request with the court that supervised the grand jury, as it is the only court with control over the transcripts." Although, for reasons set forth below, Rule 6(e) of the Federal Rules of Criminal Procedure does not control the outcome of this proceeding, petitioner has followed the procedure set forth in Rule 6(e)(3)(D) and served a copy of this petition on the United States Attorney for the Southern District of New York.

2 At its inception in the Twelfth Century, the English grand jury's deliberations were open to the public. The tradition of grand jury secrecy evolved beginning in the Seventeenth Century to protect the grand jury from government coercion, rather than to shield the grand jury from public scrutiny after its proceedings had ended. Calkins, Grand Jury Secrecy, 63 Mich. L. Rev. 455, 456-58 (1965).

For an historian, such as petitioner, and for the public generally, the Harry Dexter White episode can receive the full scrutiny it deserves only if the grand jury records are disclosed. Because the traditional reasons for grand jury secrecy no longer apply to these decades-old proceedings, and disclosure of these records will complete the historical record and facilitate the search for truth about the Harry Dexter White case, petitioner respectfully requests that this Court order release of the records of these grand jury proceedings.

Respectfully submitted,

Vladeck, Waldman, Elias & Englehard, P.C.

By: Debra L. Raskin

Lucinda A. Sikes

David Vladeck

Attorneys for Petitioner*

May 30, 1996

* Counsel wish to acknowledge the assistance of Jennifer Martinez, a student at Harvard Law School, in the preparation of this brief.

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