Reporters Committee and historians win bid to unseal grand jury transcripts from historic 1942 leak investigation of The Chicago Tribune

Transcripts of witness testimony from a historic 1942 grand jury investigation of the Chicago Tribune are now public, following a lengthy court battle to unseal them.

The testimony was part of an investigation that arose out of a Tribune article that ran at the height of World War II.  The June 1942 report by Tribune correspondent Stanley Johnston about the famed battle of Midway noted that the U.S. Navy knew the Japanese would attack by sea – revealing the highly classified information that the U.S. had cracked the Japanese code. The subsequent grand jury investigation of Johnston and the Tribune marks the only time in U.S. history that the government has attempted to prosecute a major newspaper for violating the Espionage Act for publishing leaked classified information.  The grand jury ultimately refused to issue an indictment.

In late 2014, attorneys for the Reporters Committee for Freedom of the Press, arguing on behalf of historian Elliot Carlson and a coalition of organizations, successfully petitioned the U.S. District Court for the Northern District of Illinois for release of the transcripts, which are currently stored at the National Archives.  In June, 2015, in an opinion by Chief Judge Ruben Castillo, the district court ordered release of the Tribune transcripts, concluding that disclosure “will not only result in a more complete public record of this historic event, but will ‘in the long run build confidence in our government by affirming that it is open, in all respects, to scrutiny by the people.’”  The government appealed that decision to the U.S. Court of Appeals for the Seventh Circuit.

In September, in a majority opinion by Chief Judge Diane Wood, the Seventh Circuit affirmed the district court’s unsealing order, rejecting the government’s argument that the district court lacked any authority to order that the transcripts be made public.  The appellate court held that district courts have “long-standing inherent supervisory authority” that “includes the power to unseal grand jury materials in circumstances not addressed by Rule 6(e)(3)(E)” of the Federal Rules of Criminal Procedure.  Describing the story behind the case as “a thrilling one, involving espionage, World War II, and legal wrangling,” the Court of Appeals further concluded that the district court had not abused its discretion in ordering that the 1942 Tribune grand jury transcripts be released.  The Court of Appeals also rejected the argument that Mr. Carlson and the other petitioners lacked standing to seek access to the grand jury transcripts, holding that the fact that Mr. Carlson “is a member of the public is sufficient for him to assert his ‘general right to inspect and copy … judicial records[,]’” which include grand jury records.

“We are thrilled that the grand jury transcripts from this important, singular event in American history will now be open to the public,” said Reporters Committee Litigation Director Katie Townsend, “Reporters Committee attorneys are proud to have represented Mr. Carlson and a coalition of leading historical organizations in this case, and to have obtained a result that we believe greatly benefits journalists, historians, and the public at large.”

The successful unsealing effort of Mr. Carlson and the Reporters Committee was joined by the American Historical Association, the National Security Archive, Naval Historical Foundation, Naval Institute Press, Organization of American Historians, and Society for Military History.

For more information, contact Reporters Committee Litigation Director Katie Townsend, ktownsend@rcfp.org, 202-795-9303.

About the Reporters Committee

The Reporters Committee for Freedom of the Press was founded by leading journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential sources. Today it provides pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists. Funded by corporate, foundation and individual contributions, the Reporters Committee serves the nation’s leading news organizations; thousands of reporters, editors, and media lawyers; and many more who use our online and mobile resources. For more information, go to rcfp.org, or follow us on Twitter @rcfp.