Appeals court says that Nixon’s attempt to prosecute Pentagon Papers reporter must stay secret — 50 years later
Trevor Timm
March 3, 2022
Fifty years ago the federal government tried to prosecute a New York Times journalist for publishing classified information. Since 2018, historians and press freedom advocates have been trying to unseal the mysterious grand jury case, but an appeals court has just ruled it will stay secret — public interest be damned.
Most everyone with an interest in press freedom knows about the seminal First Amendment Supreme Court case New York Times Co. v. United States, where then-President Richard Nixon and his administration notoriously attempted — and failed — to censor The New York Times for publishing the Pentagon Papers.
What many people do not know is that after that Supreme Court ruling, Nixon’s Justice Department also attempted to prosecute Times reporter Neil Sheehan, and potentially others, under the Espionage Act for gathering and publishing the classified study about the Vietnam War that would make up the Times’ legendary investigative series.
Threats to press freedom around the world are at an all-time high. Sign up to stay up to date and take action to protect journalists and whistleblowers everywhere.
Thanks for signing up for our newsletter. You are not yet subscribed! Please check your email for a message asking you to confirm your subscription.
Former Times general counsel James C. Goodale recounted the events in 2013, which is one of the only contemporary descriptions of this important but oft-forgotten aspect of press freedom history:
The government's "conspiracy" theory centered around how Sheehan got the Pentagon Papers in the first place. While Daniel Ellsberg had his own copy stored in his apartment in Cambridge, the government believed Ellsberg had given part of the papers to anti-war activists. It apparently theorized further that the activists had talked to Sheehan about publication in the Times, all of which it believed amounted to a conspiracy to violate the Espionage Act.
Sheehan's wife, Susan, a reporter for The New Yorker, also was named in the government's case before the grand jury. A Who's Who of Boston-based reporters and anti-war activists were then forced to testify, including New York Times reporter David Halberstam, anti-war activists Noam Chomsky, Howard Zinn, and two senatorial aides to Mike Gravel and Ted Kennedy. Harvard Professor Samuel Popkin would even serve a week in jail for refusing to testify as to his sources, citing the First Amendment right to keep them confidential.
Thankfully, the grand jury failed to bring charges and the DOJ eventually dropped its case. But we largely do not know why, or the full extent of the DOJ’s investigation.
Historian Jill Lepore has been on a years-long legal quest to have documents from this same grand jury investigation unsealed once and for all. For a while it looked like she would succeed. A district court had previously granted at least some of her request. But the First Circuit Court of Appeals overturned that ruling earlier this week, making it uncertain whether the 50+-year-old documents will ever see the light of day. It is a disappointing ruling, one that also flies in the face of precedent in other circuits that says judges can indeed release this type of information to serve the public interest.
This case is particularly important because for the first time since then, the Justice Department is again trying to charge someone with “conspiracy to violate the Espionage Act” related to receiving and publishing classified information. WikiLeaks founder Julian Assange currently sits in prison in the United Kingdom, appealing extradition to the United States, where he faces 17 counts under that same law. Virtually every press freedom group in the world has condemned the charges as a threat to press freedom.
Supporters of the Assange prosecution often argue that “the U.S. would never prosecute a real journalist using these tactics.” Well, the Nixon administration attempted to do just that, and it’s vitally important for both the historical record and current events that we see exactly what happened 50 years ago. And use that information to make sure it never happens again.
You can read the full ruling by the First Circuit Court of Appeals via Reporters Committee for Freedom of the Press, below: