The Reporters Committee for Freedom of the Press is taking a lead role in an effort to unseal grand jury transcripts from a 1942 Department of Justice effort to prosecute the Chicago Tribune for publishing classified government information, which is the only time the government has attempted to prosecute the mainstream press under the Espionage Act of 1917.
The Reporters Committee and a coalition of historical organizations have joined author and naval historian Elliot Carlson in asking the U.S. District Court for the Northern District of Illinois to unseal records from the grand jury proceeding.
The DOJ investigation was sparked by a June 7, 1942 article in the Tribune by correspondent Stanley Johnston, who had been aboard a Navy ship in the Pacific. Johnston’s article — which appeared as the Battle of Midway, a major turning point in World War II, was coming to an end — reported that the U.S. Navy knew the Japanese had planned an attack at sea, revealing the highly classified information that the U.S. had broken the Japanese code.
It is believed that Johnston based his article on a secret May 1942 dispatch from Admiral Chester W. Nimitz that alerted commanders in the Pacific fleet to the impending attack at Midway.
By August the DOJ had convened a grand jury to investigate whether Johnston and the Tribune violated the Espionage Act by publishing leaked classified information. Witnesses included naval officers, some of whom were unidentified, and editors from other papers that had run the story. Ultimately, the grand jury declined to issue any indictments, which was heralded as a great First Amendment victory by the Tribune and other news media.
Carlson, who has spent the past two years conducting research for a book on this investigation, previously tried both informal queries and formal Freedom of Information Act requests for access to the grand jury documents, which are housed at the National Archives facility in Maryland.
“Releasing the grand jury testimony will fill in important gaps in the existing historical record and will provide valuable perspective on the relationship between the government and the press during national security crises – a subject that has never been more relevant,” Carlson stated in his declaration to the court. “Historians and writers still disagree would the details of the Tribune scandal…but the grand jury testimony could settle the dispute.”
“The grand jury investigation of Johnston and the Tribune was the subject of widespread public interest and substantial media coverage at the time,” the petition to the court stated. “More than 70 years later, it continues to capture the interest of historians, legal scholars, the press, and the public. And it has particular resonance now, at a time when suspected leaks of classified information to the press have led to an unprecedented number of Espionage Act prosecutions by the U.S. government.”
The petition and supporting memorandum were prepared by the Reporters Committee and Brendan J. Healey of Mandell Menkes LLC in Chicago, and were joined by the American Historical Association, the National Security Archive at George Washington University, the Naval Historical Foundation, the Naval Institute Press (which is publishing Carlson’s new book), the Organization of American Historians, and the Society for Military History.
“The Reporters Committee is pleased to help direct this important effort. Unsealing testimony from the 1942 Tribune grand jury investigation will provide the public with critical insight into the historical relationship between the press and the government when it comes to matters of national security,” said Reporters Committee Litigation Director Katie Townsend. “Our involvement is part of the Reporters Committee’s renewed commitment to litigating matters for the benefit of the public where important First Amendment values are at stake.”
Read the court filings online:
About the Reporters Committee
Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.