Nearly 50 years ago, during the administration of President Richard Nixon, federal prosecutors convened two grand juries in Boston to investigate the leak that hadled to one of the greatest newspaper scoops of all time: the publication of the secret Pentagon Papers detailing America’s involvement in Vietnam.
Records of those grand juries remain sealed today.
Now, Harvard University historian and journalist Jill Lepore is asking a federal court to order the documents’ release, arguing that “the historical significance of the Boston grand jury proceedings outweighs any remaining need for secrecy.”
“It is now recognized as central to one of the most infamous abuses of executive power in American history, as one of the most consequential leaks in the history of American government, and as a crucial turning point in the history of American press freedom,” her lawyers wrote in a brief. “And yet, despite the multitude of books, articles, and films that have examined the Pentagon Papers, a crucial portion of the story remains hidden from public view.”
Lepore, the author of 11 books and a staff writer for The New Yorker, is working on an article about the 1971 Boston grand jury investigation and a related book, she said in court filings and a short telephone interview.
“I would like to see the records of this grand jury because it constitutes a landmark in the history of the federal government’s willingness to investigate and prosecute dissidents, scholars, journalists and anyone else suspected of involvement with the release and publication of classified government material,” Lepore said in a motion filed in US District Court in Boston.
The Boston grand jury investigations ended suddenly and without explanation, Lepore states, “leading to widespread concern about the use of grand jury proceedings as a cover for executive overreach. Why and when was the investigation opened? Why was it closed? To what lengths did the government go in conducting the investigation? Did those lengths include illegal wiretapping, as critics alleged at the time?”
“Unsealing the records is the only way to answer these questions.”
The Associated Press first reported Lepore’s legal effort to release the documents.
The Pentagon Papers are at the heart of one of the most important cases in the modern history of American press freedom. The papers were a massive, top-secret analysis of US involvement in Vietnam, comprising some 7,000 pages.
Whistleblower Daniel Ellsberg photocopied and leaked the report, parts of which were published by The New York Times and Washington Post in June 1971, events dramatized in the 2017 Steven Spielberg movie, “The Post.”
The Globe was the third American newspaper to publish the Pentagon Papers, the Globe has reported. In a 2008 column, former Globe editor Matthew V. Storin wrote that in June 1971, Globe editor Tom Winship “had been contacted by someone identifying himself simply as ‘Mr. Boston,’ offering the possibility of the documents. Two editors were instructed to stand by telephone booths in Cambridge and Newton. The Newton ‘drop’ was the fruitful one, and Tom Ryan, national news editor, walked triumphantly into the Globe with a red plaid zipper suitcase full of Pentagon Papers excerpts.
The Globe produced four front page stories and four inside pages of stories and texts the next day.”
The Nixon administration went to court to stop the publication of the Pentagon Papers. But the Supreme Court ultimately sided with the newspapers in a landmark decision affirming the freedom of the press.
In 1971, the Justice Department empaneled grand juries to investigate the leak. A Los Angeles jury focused on Ellsberg, who had copied the documents; a Boston grand jury was to investigate the distribution of the massive report, Lepore’s filings state.
The role of the Boston grand juries has been largely overlooked in history, Lepore said.
The New York Times in July 1971 made reference to the two Boston grand juries investigating the leak, reporting that the first was dismissed and replaced with another, ironically, because one of the grand jurors may have leaked information to the press. The Times story referenced other contemporary news reports that said the grand jury was investigating printing houses around Boston that could have been involved in copying the Pentagon Papers.
In December 1971, the Times reported that “it was widely assumed . . . that the Boston investigation was aimed at persons who helped Dr. Ellsberg distribute the documents or who had access to them before they became public.”
Ellsberg supports Lepore’s efforts to unseal the records, writing in a court filing that “it is very important, now more than ever, to unseal the Boston grand jury records, because it is one of the earliest — perhaps the very first — government attempt to use the Espionage Act to indict journalists for doing journalism.”
Lepore requested the documents from the National Archives at Boston under the Freedom of Information Act. The archives declined to produce them, citing grand jury secrecy provisions, she said.
“The [Pentagon] papers exposed government deception surrounding the Vietnam War, raising concerns about a lack of government transparency and accountability,” Lepore wrote in filings. “The Nixon administration’s attempt to halt publication of the leaked documents helped define the relationship between the government and the free press.
“Tensions between the press and the president are as evident today as it was then, and the debate that raged in the 1970s over freedom of speech and government transparency rages still. Access to the grand jury records will advance that debate and improve our understanding of a chapter in American history that has fascinated the public for decades,” she said.Mark Arsenault can be reached at firstname.lastname@example.org. Follow him on Twitter @bostonglobemark