Case 1:18-mc-91539 Document 4 Filed 12/17/18 Page 1 of 18 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS IN RE: Misc. Action No. PETITION OF JILL LEPORE DECLARATION OF JILL LEPORE I, Jill Lepore, hereby declare as follows: 1. I am a historian and journalist with a particular interest in American political and legal history. I submit this declaration in support of the above-captioned petition to unseal the records of the federal grand juries convened in Boston in April of 1971 and in August of 1971 to investigate the copying and release of the Pentagon Papers. In this declaration, I explain my interest in the grand jury investigation at issue; why this significant event in U.S. history continues to interest historians, the media, and the public; and why unsealing this material would be of significant value to scholars, reporters, and the public. 2. I am the David Woods Kemper ’41 Professor of American History at Harvard University, where I have been teaching since 2003. I am the author of eleven books, including These Truths: A History of the United States (2018), a best-selling, single-volume history of the nation. I am a past president of the Society of American Historians. In 2014, I was named the American Historian Laureate. I am also a staff writer at the New Yorker, a national magazine to which I have been contributing essays in American history, politics, and the law since 2005. I have a B.A. from Tufts (1987), an M.A. in American Culture from the University of Michigan (1990) and a Ph.D. in American Studies from Yale (1995). I am the recipient of a number of Case 1:18-mc-91539 Document 4 Filed 12/17/18 Page 2 of 18 honorary degrees. I am an elected member of the American Academy of Arts and Sciences and of the American Philosophical Society. 3. I am an expert in the history of evidence and, in particular, in the tension between the competing claims and needs of archival preservation and publicity, on the one hand, and of secrecy and privacy, on the other. Since 2014, I have been affiliated with Harvard Law School, where I teach History of Evidence, which considers the rules of evidence in law, history, journalism, and science, from the Middle Ages to the present. 4. I have published a number of essays, both scholarly and popular, and delivered a number of lectures on the history of privacy, secrecy, and evidence. 5. My journal articles include Asymmetry in the Archives1 on the consequences of asymmetrical acquisition policies; and On Evidence: Proving Frye as a Matter of Law, Science, and History,2 a deep archival investigation into the 1922 criminal trial that lies behind the Frye rule, which deals with the admissibility of scientific evidence. 6. My magazine essays include The Prism: Privacy in an Age of Publicity,3 an investigation into the history of the tension between the assertion of a right to privacy and government surveillance on private citizens, establishing the long backstory to the National Security Administration’s Prism program; and The Great Paper Caper,4 an investigation into the 1971 theft from the Library of Congress of several hundred items from the papers of Supreme Court Justice Felix Frankfurter. My work on the Frankfurter theft is closely related to my interest in the 1971 Boston grand jury records, as my research into the Frankfurter Papers affair sets that crime within the scandals associated with the Nixon administration, and the resulting attempts to 1 160 Proceedings of the Am. Philosophical Soc’y 1 (2016). 2 124 Yale L.J. 882 (2015). 3 The New Yorker, June 24, 2013. 4 The New Yorker, Dec. 2, 2014. 2 Case 1:18-mc-91539 Document 4 Filed 12/17/18 Page 3 of 18 preserve presidential, if not judicial, records. (Two scholars have argued that the theft was perpetrated by the Nixon administration, to protect his nomination of William Rehnquist to the Supreme Court, since the Frankfurter papers may have contained records incriminating to Rehnquist.) 7. As part of a commitment to bringing investigative scholarship before a public audience and fostering public debate on matters of evidence, I have delivered many public lectures on the history of the relationship between evidence and secrecy. These include “Hidden,” a three-part lecture series delivered at the New York Public Library in 2013 as the Joanna Jackson Goldman Memorial Lectures; “Unseen: From Mystery to Privacy” and “Unknown: From Facts to Data,” delivered as the Patten Lectures at the University of Indiana in 2016; and “The End of Knowledge,” a three-part lecture series delivered in 2017 at the University of Toronto as the F.E.I. Priestley Lectures in the History of Ideas. 8. I am currently working on an article about the 1971 Boston grand jury investigation as well as on a book called If/Then: How Simulmatics Corporation Invented the Future, to be published by W.W. Norton. Simulmatics, one of the first data-science firms, was founded in 1959 and, with multiple contracts from the Advanced Research Projects Agency of the Department of Defense, undertook significant research in Vietnam, some of it conducted by a young political scientist named Samuel Popkin. My research into Simulmatics requires understanding the relationship of the firm and its personnel to the Pentagon Papers controversy, which led me to the Boston grand jury convened in 1971, which subpoenaed Popkin. Popkin’s struggles with the grand jury lie at the heart of the story. Many of the people subpoenaed refused to speak to the grand jury, citing First, Fourth, and Fifth Amendment protections. When Popkin 3 Case 1:18-mc-91539 Document 4 Filed 12/17/18 Page 4 of 18 refused to answer certain questions, citing a “scholar’s privilege,” akin to a “reporter’s privilege,” he was sent to jail. 9. I have been trying to gain access to the records relating to the whole of the investigation, including FBI surveillance and interviews, grand jury subpoenas and testimony, and briefs and other legal documents relating to the investigation and to the grand jury proceedings. I would like to see the records of this grand jury because it constitutes a landmark in the history of the federal government’s willingness to investigate and prosecute dissidents, scholars, journalists, and anyone else suspected of involvement with the release and publication of classified government material. The investigation ended almost as suddenly as it began, and without explanation, leading to widespread concern about the use of grand jury proceedings as a cover for executive overreach. Why and when was the investigation opened? Why was it closed? To what lengths did the government go in conducting the investigation? Did those lengths include illegal wiretapping, as critics alleged at the time? On what evidence was Popkin so relentlessly pressed? Unsealing the records is the only way to answer these questions. 10. In 1971, when the federal government determined to prosecute leakers, Popkin and other scholars, as well as a bevy of reporters, tested the limits of the government’s willingness to prosecute scholars for conducting scholarship and journalists for conducting reporting. A fuller understanding of what happened in 1971 is crucial to my own scholarship, as it will inform my research into Simulmatics Corporation and Popkin’s role within it, and is the subject of the lengthy article I intend to prepare while working from the records of this case. But it is also vital to any consideration of the history of federal government surveillance of and interference with the freedoms of journalists and academics—a history with troubling resonance in our own day. 4 Case 1:18-mc-91539 Document 4 Filed 12/17/18 Page 5 of 18 BACKGROUND CONCERNING THE PENTAGON PAPERS 11. In 1967, Robert McNamara, President Lyndon Johnson’s secretary of defense, commissioned an inquiry into the entire history of U.S. involvement in Vietnam that resulted in a confidential, 7,000-page, 47-volume study, a chronicle of the lies and blunders of one administration after another in pursuing an ill-considered, cruel, and wanton campaign in Vietnam. The report weighed sixty pounds, which is significant because the subsequent investigation focused on the number of people whose assistance was required to copy and transport the document. The report, leaked to the press in 1971, became popularly known as the Pentagon Papers. 12. The publication of the Pentagon Papers changed the course of American history by contributing to both the end of the Vietnam War and Nixon’s resignation. The Pentagon Papers are commonly identified by scholars as “the single most important documentary source on U.S. policy-making during the Vietnam War”; reporters consider their publication to be “one of the greatest journalistic ‘scoops’” in American history; and legal scholars agree that “the court case that followed posed, as few others have, the fundamental issue of governmental secrecy against the people’s right to know.”5 13. Daniel Ellsberg, an economist, former Marine officer, and analyst with the RAND Corporation, who had worked on the report, photocopied portions of McNamara’s report with the idea of leaking it, in hopes that its exposure would bring an end to the war. Beginning in 1969, Ellsberg tried to gain the interest of members of Nixon’s administration, including Kissinger, to no avail. He had tried to get a member of Congress to leak the report, without success. 5 George C. Herring, The Pentagon Papers: Abridged Edition xiii-xxii (1993). 5 Case 1:18-mc-91539 Document 4 Filed 12/17/18 Page 6 of 18 14.