Photo Credit: The U.S. Department of Justice building is bathed in morning light at sunrise in Washington, D.C. February 14, 2020. REUTERS/Mary F. Calvert

By Alison Frankel-Reuters

A newly released pair of legal memos from 1971 — written by lawyers from the U.S. Justice Department’s Office of Legal Counsel as the Nixon administration scrambled to respond to the Pentagon Papers leak — reveal just how calamitous the case might have been for journalism.

The Justice Department memos that followed the leak of a secret Defense Department report on the roots of the Vietnam War were obtained by the Knight First Amendment Institute at Columbia University via a 2021 settlement of litigation to force the disclosure of historical memos from the Office of Legal Counsel, which provides legal advice on complex issues to the president, the attorney general and the rest of the executive branch.

What the documents show is the Nixon administration’s initial determination to wrest discretion over the publication of huge swaths of sensitive national security information away from journalists and even the courts – and the Justice Department's subsequent contemplation of criminal charges for newspapers and journalists that went ahead and published such information.

The Pentagon Papers, whose official title was “Report of the Office of the Secretary of Defense Vietnam Task Force,” was a multi-volume study of how the U.S. ended up in a bloody stalemate in Vietnam. The revelation of parts of the study was considered a bombshell because the Pentagon Papers contradicted years of government assurances about the war.

The Nixon administration cast its attempt to block The New York Times and Washington Post reporting as a matter of national security. The first memo released by the Knight Institute, dated June 16, 1971, laid out a legal strategy for the Justice Department as it went to federal court in Manhattan to request a permanent injunction barring the Times from publishing information it obtained from leaked portions of the secret report.

Frederick Lambert of the Office of Legal Counsel advised other Justice Department lawyers, including future U.S. Supreme Court Chief Justice William Rehnquist, that the government should assert an extremely aggressive position before the New York trial judge: Whenever information is designated to be top secret, the government is entitled to a heavy presumption that its interests override the general 1st Amendment prohibition on prior restraint.

“It is simply impossible to foresee with clarity the exact manner in which certain sensitive information may damage both defense efforts and foreign relations,” Lambert wrote. “The determination of what is prejudicial to the defense of the country simply cannot be left to reporters untrained in assessing the short or long-range impact of disclosing sensitive information.”

Even the judiciary, Lambert wrote, “should be exceedingly hesitant to substitute its judgment for that of the executive branch.” The Justice Department, he advised, should argue that judges are permitted to scrutinize secret national security documents “only in the most exceptional situations.”

Lambert’s view, as you know, did not prevail. A mere two weeks after his memo, the U.S. Supreme Court refused to enjoin the Times and Post from publishing stories about the Pentagon Papers, in the most resounding endorsement of press freedom in U.S. history.

But that wasn’t the end of the story for the Nixon Justice Department. In a July 28 memo to White House Counsel John Dean, Thomas Kauper of the Office of Legal Counsel analyzed whether the newspapers – and even individual reporters – could be prosecuted under a statute prohibiting the unlawful possession and transmission of national defense information.

Kauper said the law, on its face, would “appear to cover newspaper publication.” He also said facts not yet known to the government could support additional criminal charges against The New York Times for conspiring in or encouraging the theft of the Pentagon Papers.

Prosecuting journalists, the Justice Department lawyer noted in the July 28 memo, would raise “public policy and First Amendment questions.” But he seemed more concerned about the practicality of defendants’ right to demand classified information that could then be publicly revealed.

The Justice Department ultimately brought criminal charges only against the whistleblowers who leaked the Pentagon Papers to the press, Daniel Ellsberg and Anthony Russo. The charges were ultimately dismissed in 1973 after a mistrial in 1972.

The Knight Institute’s 2021 settlement with the Justice Department required the DOJ to turn over more than 200 Office of Legal Counsel opinions issued before 1994. The Pentagon Papers memos are the first of those historical opinions to be released by the institute.

“They really shed an important light,” said Knight staff lawyer Stephanie Krent. “You can see the Justice Department thinking really strategically about the release of information that reflects poorly on the government.”

The Pentagon Papers memos, she said, provide a contemporaneous account of DOJ’s analysis of issues that continue to be hugely important. If, for instance, the extreme position advocated by the Office of Legal Counsel in the June 16 memo had become law, Krent said, “it would have cut off all national security reporting at the knees.” (It’s worth noting that even the Justice Department, in its June 26, 1971, brief to the Supreme Court, took a much narrower approach than the Office of Legal Counsel had advocated just 11 days earlier. The government told the Supreme Court that it was not asking for a blanket injunction barring the publication of all top-secret information but for a targeted prohibition on publishing material that posed “a grave and immediate danger” to national security.)

The second Justice Department memo, Krent said, addresses issues that recur when journalists’ reporting arises from major leaks of national security materials, such as Chelsea Manning’s disclosure to Wikileaks of hundreds of thousands of U.S. military documents related to the Iraq War and Edward Snowden’s revelation of a National Security Agency surveillance program. No U.S. journalists were charged for publishing information from Snowden or Manning but Wikileaks founder Julian Assange is under indictment for, among other things, exposing classified sources.

The ongoing debate over the public interest in classified information – and the consequences for those who reveal it – proves the significance of these 50-year-old Justice Department memos, Krent said, even as the Knight Institute litigates in federal court in Washington, D.C., to force the Office of Legal Counsel to publish its formal written opinions when they are issued within the executive branch.

“We set out to bring historic memos to light,” Krent said. “We believe they have huge relevance to today’s debates.”