In Re: Petition of National Security Archive
Filing
17
OPINION AND ORDER UNSEALING GRAND JURY TESTIMONY OF DAVID GREENGLASS AND MAX ELICHTER re: 10 MOTION to Direct Renewed Petition for an Order Directing Release of Remaining Grand Jury Minutes and Testimony filed by American Soc iety of Legal History, Sam Roberts, Society of American Archivists, American Historical Association, Petition of National Security Archive, Organization of American Historians: Petitioner's motion to unseal the testimonies of Max Elichter and David Greenglass before the Rosenberg grand jury is granted. The Clerk shall mark the motion (Doc. No. 10) terminated. (Signed by Judge Alvin K. Hellerstein on 5/19/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------- x
IN RE PETITION OF NATIONAL SECURITY
ARCHIVE, AMERICAN HISTORICAL
ASSOCIATION, AMERICAN SOCIETY OF
LEGAL HISTORY, ORGANIZATION OF
AMERICAN HISTORIANS, SOCIETY OF
AMERICAN ARCHIVISTS, AND SAM
ROBERTS FOR ORDER DIRECTING RELEASE
OF GRAND JURY MINUTES
OPINION AND ORDER
UNSEALING GRAND JURY
TESTIMONY OF DAVID
GREENGLASS AND MAX
ELICHTER
08 Civ. 6599 (AKH)
--------------------------------------------------------------- x
ALVIN K. HELLERSTEIN, U.S.D.J.:
Petitioners - a non-profit institution, four national associations of historians and
archivists, and a journalist - seek the release of grand jury records related to the prosecutions in
this Court of Ethel and Julius Rosenberg. For the following reasons, the petition is granted.
BACKGROUND
In 1950, a federal grand jury impaneled by this Court indicted Julius and Ethel
Rosenberg of conspiracy to commit espionage by passing information about the atomic bomb to
agents of the Soviet Union. The following year, they were tried and convicted, partly based on
the testimony of Ethel Rosenberg's brother and alleged co-conspirator, David Greenglass. The
Rosenbergs were sentenced to death and, on June 19, 1953, they were executed. Subsequently, in
interviews withjournalist Sam Roberts of the New York Times, Greenglass claimed to have lied
at trial about his sister's involvement in order to protect his wife, Ruth Greenglass. According to
Greenglass, it was likely Ruth, not Ethel, who typed up his notes, but government attorneys were
threatening to prosecute Ruth unless David testified against Ethel. See, e.g., Sam Roberts, The
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Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister, Ethel
Rosenberg, to the Electric Chair (2002).
In January 2008, Petitioners petitioned this Court to unseal grand jury records
relating to the Rosenbergs' indictments. 1 After briefing and oral argument, I granted Petitioners'
request with respect to the grand jury transcripts of all witnesses who were either deceased, had
consented to the release of the transcripts, or were presumed to be indifferent or incapacitated
based on their failure to object. See Order Regulating Proceedings, In re Nat'! Sec. Archive,
Misc. No. 11-188 (Part I) (S.D.N.Y. Jul. 23, 2008); Summary Order, In re Nat'! Sec. Archive,
No. 08-cv-6599 (S.D.N.Y. Aug. 26, 2008). That release covered 43 of the 46 grandjury
witnesses. The three remaining witnesses - Max Elichter, William Danziger, and David
Greenglass - objected, and their transcripts were not released. Petitioners withdrew their motion
as to Elichter and Danziger, but urged that the vital historical importance of Greenglass's
testimony warranted releasing the transcripts over his objections. I denied the motion, reasoning
that "the interest of a witness before a grand jury ... in not permitting others to disclose what he
said to the grand jury is an abiding value that I must respect." Tr. of Jul. 22, 2008 at 33:13-15.
However, I cautioned that "[w]hether that interest will survive David Greenglass is a question I
do not decide today." Id at 42:25-43:15.
Now, more than six years later, the issue comes before me again, as Petitioners
have renewed their motion following the deaths of David Greenglass and Max Elichter. The
renewed petition does not cover William Danziger, as Petitioners have been unable to determine
whether Mr. Danziger is still alive. 2 In a December 15, 2014 Order, I extended the
1 Although the Government would likely have to disclose Greenglass's grand jury testimony if the trial were held
today, the Rosenberg trial preceded the enactment of the Fed. R. Crim. P. 26.2 and the Jencks Act, 18 U.S.C. ยง 3500.
2
My 2008 ruling upholding objections to disclosure by living witnesses remains in effect, at least for the time being.
2
Government's time to respond to the renewed petition in order to allow it "to consult all potential
stakeholders." Doc. No. 13 at 1. According to the Government, the Elichter family has no
objection, so his testimony will be unsealed posthumously like those of previous witnesses.
However, the Greenglass family continues to oppose disclosure.
LEGAL STANDARD
"It is a tradition of law that proceedings before a grand jury shall generally remain
secret." In re Biaggi, 4 78 F .2d 489 (2d Cir. 1973 ). This policy is intended
(1) [t]o 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 pe1::jury 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; [and] (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. Procter & Gamble Co., 356 U.S. 677, 681-82 n.6 (1958) (quoting United States
v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954)). However, the tradition of secrecy is not absolute.
In re Biaggi, 478 F.2d at 492. For example, Fed. R. Crim. P. 6(e)(3) allows for disclosure under
certain circumstances, such as disclosure to a criminal defendant if the grand jury witness will
testify against him at trial. And the Second Circuit has recognized that "there are certain 'special
circumstances' in which release of grand jury records is appropriate even outside the boundaries
of the rule." In re Craig, 131F.3d99 (2d Cir. 1999). One such special circumstance is significant
historical interest by the public. Id. at 105. The determination of whether such an interest
outweighs the countervailing interests in privacy and secrecy falls within the district court's
discretion. See id. at 104 ("We note at the outset that the discretion of a trial court in deciding
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whether to make public the ordinarily secret proceedings of a grand jury investigation is one of
the broadest and most sensitive exercises of careful judgment that a trial judge can make.").
DISCUSSION
The historical significance of the Rosenberg trial is undisputed. Their crime was
called "The Crime of the Century." J. Edgar Hoover, The Crime of the Century, Reader's Digest,
May 1959. In sentencing the couple to die, U.S. District Judge Irving R. Kaufman blamed their
treason for the Korean War and at least 50,000 lives lost because of it. United States v.
Rosenberg, 195 F.2d 583, 605 n.29 (2d Cir. 1952) ("I consider your crime worse than murder. ..
. I believe your conduct in putting into the hands of the Russians the A-bomb years before our
best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the
Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows
but that millions more of innocent people may pay the price of your treason."). The Rosenbergs'
name is infamous to a generation of Americans who grew up during the Cold War fearing the
nuclear threat posed by the U.S.S.R. The Rosenbergs were the only American civilians executed
for espionage activities in that period. Many continue to believe that Ethel was innocent,
although intercepted Russian cables that appear to confirm Julius's espionage activities. 3 Many
historians, Petitioners included, have spent countless hours documenting the Rosenbergs' story.
Many questions remain unanswered, and the public's interest remains. See In re Craig, 131 F.3d
at 106 ("[I]fhistorical interest in a specific case has persisted over a number of years, that serves
as an important indication that the public's interest in release of the information is substantial.").
In 2008, I found that David Greenglass's interest in preserving the secrecy of his
grand jury testimony was sufficient to prevent its unsealing during his life, despite the public
3
See Ronald Radosh & Joyce Milton, The Rosenberg File xv-xvi (2000).
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interest in the case. But neither his posthumous interest nor the interest of his family can prevent
unsealing. The Government claims that disclosure will rekindle antipathy toward the Greenglass
family and thrust them into an unwanted spotlight. It argues that "the continued existence and
vulnerability" of the principal parties involved and their immediate families is grounds to keep
the records sealed. I do not agree. The family has lived under assumed names for fifty years. The
family makes objections, not by appearing or intervening, but through a lawyer, allowing them to
preserve their assumed identities. The Government fails to explain how publicity arising from the
release of David Greenglass's testimony will prejudice people living under different identities,
particularly since Greenglass himself publicly revealed much about his testimony over the years,
apparently without repercussions for the family.
Other considerations beyond historical interest weigh in favor of disclosure as
well. For example, Judge Knapp and Judge Leisure have each ordered grand jury records
unsealed in other cases in part because of credible allegations of prosecutorial misconduct. See In
re American Historical Ass 'n, 49 F. Supp. 2d 274 (S.D.N.Y. 1999); In re May, 651 F. Supp. 457
(S.D.N.Y. 1987). In this case, David Greenglass stated in interviews that prosecutors pressured
him into falsifying testimony against his sister. See Roberts Deel. iii! 7-8. And as the Second
Circuit explained, "the extent to which the grand jury material ... has been made public is
clearly relevant because even partial previous disclosure often undercuts many of the reasons for
secrecy." In re Craig, 131 F.3d at 106. Here, Greenglass himself has been a willing interviewee
on the subject of his testimony for books, newspapers, and television reports over the years. 4
The family's contention that disclosure should be postponed until all immediate
family members are deceased is not compelling. As I explained in 2008,
4
See, e.g., Cold War, Colder Brother, David Greenglass Tells CBS He Wanted to Save Himself(Dec. 5, 2001),
available at http://www.cbsnews.com/stories/2001/l2/05/6011/main32013 5 .shtml?source=search_story.
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like information, time is precious with respect to those who research.
The researchers and writers have a limited life span themselves.
There is a very great public interest. The public interest is best
satisfied by the proper responsive disclosure of information .... So
unless there is a good reason [cautioning against disclosure], I think
I would rule to require them to be released.
Tr. of Jun. 22, 2008, at 23:5-13.
The requested records are critical pieces of an important moment in our nation's
history. The time for the public to guess what they contain should end. The transcripts of David
Greenglass and Max Elichter shall be made available. The testimony of William Danziger
remains sealed for the time being.
CONCLUSION
Petitioner's motion to unseal the testimonies of Max Elichter and David
Greenglass before the Rosenberg grand jury is granted. The Clerk shall mark the motion (Doc.
No. 10) terminated.
SO ORDERED.
Dated:
(jg_ /, rt:AJ~
New~' New York
May
7
2015
AL VIN K. HELLERSTEIN
United States District Judge
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