BOSTON — The government must release some documents that will shed light on two grand juries that sat in Boston nearly 50 years ago to investigate the leak of the Pentagon Papers, a federal judge ruled Tuesday.
The records detailing the probe into the publication of records that exposed the deceit of American policymakers during the Vietnam War were sought by Jill Lepore, a Harvard University professor and New Yorker staff writer.
Lepore filed a petition in 2018 seeking the long-secret documents from the 1971 grand juries, saying the records would “fill a significant gap in the public’s understanding of the Pentagon Papers episode and contribute to contemporary debates over press freedom and national security.”
But federal prosecutors fought their release, arguing that it is critical to keep grand juries secret in order to encourage witnesses to testify freely and protect the privacy of people who are later cleared of accusations.
U.S. District Judge Allison Burroughs said in her written decision that she would grant a “limited disclosure” of the grand jury materials but not allow the “unfettered” access Lepore sought.
Burroughs is allowing the release of transcripts and exhibits for witnesses who supported making the files public but will allow officials to request redactions. The judge is also allowing the release of transcripts and exhibits for witnesses who are dead, unless the government can prove they need to stay secret to protect surviving family members.
If the government objects to the release of other documents, it has 60 days to explain why they should stay under wraps, Burroughs said. The judge signaled that she may be willing to delay the release of the records so the government has a chance to appeal, “given the importance of this issue.”
The U.S. attorney’s office in Boston didn’t immediately respond to a request for comment. An email was also sent to Lepore’s attorneys Tuesday.
Burroughs said she was allowing the documents to be released “reluctantly,” expressing concern it could have “unintended consequences” or open the door to the release of other secret grand jury documents in the future.
“All of that being said, the authority of the court to allow the disclosure sought in this case seems clear and given the passage of time, the historical significance of the materials at issue and the fact that much of the matter is already in the public domain, the court must conclude that the limited disclosure allowed herein does not run afoul of any of the purposes of grand jury secrecy,” Burroughs wrote.
Among those who supported their release was Daniel Ellsberg, the former government consultant who gave the papers to The New York Times, The Washington Post and other newspapers.
Ellsberg said in a declaration filed in court that it is important “now more than ever” to release the grand jury investigation records because it represented one of the government’s earliest attempts “to use the Espionage Act to indict journalists for doing journalism.”