BOSTON (CN) — A noted historian’s effort to unearth grand jury records pertaining to the Pentagon Papers led to a philosophical debate Thursday in the First Circuit about the meaning of history.
The case was brought by Jill Lepore, a Harvard professor and New Yorker writer who is working on a book about the Vietnam War analysis that was ordered up by Defense Secretary Robert McNamara in 1967.
Grand jury records are supposed to remain secret, and the question is whether a court can choose to release them anyway if they’re historically important.
"How is a court to go about making that judgment without essentially incorporating some ideological slant on what it thinks is important?” asked U.S. Circuit Judge William Kayatta, a Barack Obama appointee.
Kayatta asked Lepore’s representative, a Yale law student named Jacob Schriner-Briggs: “Can you give me an example of a grand jury proceeding that would not be disclosable 50 or 60 years after it ended?”
Schriner-Briggs suggested a “garden-variety felony case involving someone who isn’t a public figure.”
“What about an indictment of a runaway slave in 1850?” Kayatta asked.
“Well, that wouldn’t be garden-variety,” Schriner-Briggs replied.
“So there,” said Kayatta, “in two minutes you suddenly had to modify your definition of what would be discoverable and what would not, and I’m having trouble seeing what the end of it would be.”
The Pentagon Papers — which mark 50 years since their release this weekend — revealed that the U.S. government had been far more involved in the Vietnam War early on than the general public knew, and that political leaders had lied about both the extent of the war and the military’s success.
Daniel Ellsberg, a military analyst involved in a study of the war at the Pentagon, leaked some of the 7,000-page document to The New York Times. This led to extensive litigation over the press’s right to publish the report, with the Supreme Court ultimately allowing publication to go forward on June 30, 1971.
Ellsberg was indicted by a grand jury in Los Angeles for the leak, but the case was thrown out after it came to light that the Nixon administration broke into the office of Ellsberg’s psychiatrist looking for documents that could discredit him.
In Boston, meanwhile, a separate grand jury focused on who had helped Ellsberg get the report to the Times. The investigation focused on MIT linguist and antiwar activist Noam Chomsky, reporter David Halberstam, U.S. Senator Mike Gravel of Alaska, Harvard political scientist Samuel Popkin and MIT Press director Howard Webber. Popkin ultimately spent eight days in jail after refusing to testify.
Lepore wants the records of the Boston grand jury. Although there is no law or court rule specifically allowing their disclosure, a federal judge claimed to have “inherent authority” to unseal them for reasons of historical interest.
On appeal, the case drew amicus briefs from 45 organizations including historians’ groups, the Associated Press, The New York Times, Mother Jones, Vox and more.
U.S. Circuit Judge Sandra Lynch, a Bill Clinton appointee, said she was reluctant to issue a broad ruling about inherent authority and repeatedly asked if there was some way to make a narrower ruling, but nobody seemed able to offer her one.
Schriner-Briggs did suggest that “this case is not borderline,” and that even the government conceded that historical interest in the Pentagon Papers outweighed the value of secrecy — although he said the government was fighting disclosure out of “bigger-picture” concerns.
But Lynch wasn’t satisfied. “Unless one adopts a broad inherent authority view,” she finally said, “there seems to be no authorization for this decision to be made by a single federal district court judge.”
“And then,” she told Schriner-Briggs, “you exacerbate matters by saying the only appellate review is for abuse of discretion.”
Kayatta returned to the subjective nature of history.
“I read a lot of history now about things that seem very significant to me where historians 50 years ago didn’t even mention them,” he observed.
Lynch posed a series of hypotheticals to the Justice Department’s lawyer, Bradley Hinshelwood, trying to narrow down the scope. Could disclosure be limited to cases where there was an indictment? Or, if the government convened a grand jury to retaliate against a reporter and the reporter sued under the First Amendment, could the reporter see the grand jury minutes?
Hinshelwood deflected the questions and returned to his basic argument that a judge simply doesn’t have inherent authority when it comes to “messing with the fundamental attributes of a grand jury.”
Much of the argument consisted of competing views of the history of grand jury proceedings and court rules with the two advocates debating the meaning of century-old cases.
“You must admit there is some irony here,” Kayatta observed.
Lynch agreed and quipped, “Someday a historian will look into this.”
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