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Tuesday, February 11, 2020
MFIA Clinic Wins Unsealing of Grand Jury Documents from Historic Pentagon Papers Case
The Media Freedom and Information Access (MFIA) Clinic at Yale Law School scored a major win this past week when a Massachusetts district judge ordered the unsealing of a batch of nearly five-decades-old documents from grand juries convened during the Pentagon Papers case.
The judge has ordered the release of transcripts from the witnesses who submitted affidavits in this case, with the government having 60 days to propose redactions. In addition, the government must either release or justify the withholding of transcripts of deceased witnesses. The judge also ordered the release of any grand jury materials other than transcripts, unless the government can explain a need for continued secrecy.
“This is a major win for the public’s access to historically significant information,” said MFIA Clinic legal fellow Charles Crain. “It’s a great opinion on the legal merits and a good process for determining what should remain sealed moving forward.”
One of the most well-known incidents in U.S. history involving the leak and publication of classified government documents, the Pentagon Papers and Daniel Ellsberg have remained in the public eye for a half century. It began in 1971, when The New York Times and The Washington Post, among other newspapers, published excerpts from a report commissioned by then Secretary of Defense Robert McNamara. The report was seen to expose how the U.S. was really doing in the Vietnam War, and the government famously sought to enjoin newspapers from continuing to publish the remaining materials. The landmark Supreme Court case of New York Times Co. v. United States (1971), which upheld First Amendment press freedoms, came out of this incident.
Three grand juries were called in 1971 to investigate Daniel Ellsberg — who famously supplied the newspapers with said classified materials — about how he was able to obtain and disseminate the report. However, only the Los Angeles grand jury ever resulted in charges against Ellsberg, which were ultimately dropped. The two grand juries that were convened in Boston had been largely forgotten until Harvard historian Jill Lepore took an interest in the records. Acting on her behalf, the MFIA Clinic petitioned the United States District Court for the District of Massachusetts to unseal the records from 1971.
Lepore had been writing a book about a company that worked with the U.S. government during the Vietnam War and advised officials how to gain local support for the war in Vietnam. She stumbled into Samuel Popkin’s Boston grand jury subpoena and initial refusal to testify, which prompted her to twice request access to the full grand jury records housed at the National Archives and Records Administration at Boston (first via email and later through a Freedom of Information Act request). Both times she was denied access to all but a small and heavily-redacted portion of the records, and so this case was born.
Throughout the course of these two 1971 Boston grand juries, the Department of Justice subpoenaed at least 13 scholars, journalists, and other associates of then-Cambridge-resident Daniel Ellsberg. MFIA Clinic law students worked to track down many of those who were originally subpoenaed, including noted scholar Noam Chomsky, Samuel Popkin, and even Daniel Ellsberg himself — who submitted written affidavits in favor of unsealing their records.
Part of the Clinic’s argument rested upon the deep historical value of the case, and the public’s continued fascination with it to this day. Because of how much is already known about the Pentagon Papers as well as the near half century of time that has passed since the grand juries were empaneled to investigate Ellsberg — the Clinic argued that the need for continued secrecy is low. A key point, in which the judge agreed with the Clinic in her decision, notes that the court does, in fact, have the authority, under the rules of criminal procedure, to unseal grand jury records and that grand juries are categorized as court proceedings, not just parts of investigations.
MFIA students Jessica Baker ’20, Ellis Liang ’19, Jacob Schriner-Briggs ’21, and Rachel Cheong ’19 all contributed significantly to the case.
By Leah Ferentinos