NEFAC, Media Groups Argue for Access to Grand Jury Documents About Pentagon Papers

Coalition Joins Amicus Brief Explaining Historical Significance of Records

CONTACT Justin Silverman | 774.244.2365 |


The New England First Amendment Coalition and media groups across the country today argued for access to the records of Boston grand juries charged with investigating the disclosure of the Pentagon Papers nearly 50 years ago.

The groups filed an amicus brief — drafted by the Reporters Committee for Freedom of the Press — in Lepore v. United States, a case before the U.S. Court of Appeals for the First Circuit.

The case involves Jill Lepore, a historian and staff writer for The New Yorker, who in 2018 requested access to records from two grand juries convened in Boston to investigate the Pentagon Papers leak in 1971, one of the most consequential unauthorized disclosures of government information to the news media in history.

The district court ordered the records disclosed, invoking its inherent authority to do so. It also held that it had the authority to unseal some of the materials that had already been partially disclosed under the rules for grand jury secrecy. The government then appealed to the U.S. Court of Appeals for the First Circuit.

“When district courts exercise their inherent authority to disclose grand jury materials, the press, historians, and scholars use that access to create a more complete, accurate public record of historically significant events,” wrote amici in the April 12 brief.

In the brief, amici argue that:

• Under its supervisory authority, a district court has the power to authorize the disclosure of grand jury records to the public in appropriate, exceptional cases, even in circumstances not expressly provided for by Federal Rule of Criminal Procedure 6(e).

• The district court’s application of the factors identified by the U.S. Court of Appeals for the Second Circuit in Craig v. United States appropriately reconciled the importance of grand jury secrecy with the public interest in disclosure.

• Affirming the district court’s disclosure serves the public interest as the historical significance of the requested materials outweighs continued grand jury secrecy. Disclosure is particularly important given the recent uptick in Espionage Act prosecutions against individuals accused of leaking sensitive government information to the news media since 2009.

NEFAC regularly files and joins amicus briefs in cases involving First Amendment freedoms and the public’s right to know about government. All coalition briefs, advocacy letters and statements can be found here.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC include Hearst Connecticut Media Group, Paul and Ann Sagan, The Boston Globe, WBUR, Boston University and the Robertson Foundation.