Popkin: The Limits of Academic Privilege
When the Pentagon Papers appeared in newspapers around the United States last June, Samuel L. Popkin, assistant professor of Government, was about 8000 miles away, in Hong Kong. The study, he said later, "certainly did not light bulbs and ring bells in my head."
The fact that Popkin was a Vietnam scholar and had worked with Daniel Ellsberg '52 at MIT did light bulbs and ring bells in the heads of government investigators, however. And when a grand jury was empanelled in Boston to probe possible Pentagon Paper-related crimes in Massachusetts, Popkin found himself on its list.
So it was that on August 19, 1971, Sam Popkin received his first subpoena from the grand jury, beginning a long ride on a legal merry-go-round. That subpoena eventually opened not only the personal question of what relevance Popkin's "testimony" had on the investigation, but also the broader legal question of whether a scholar has the same right as a journalist to protect his confidential sources.
Not surprisingly, the first subpoena was greeted with displeasure by Popkin and, represented by attorneys William P. Homans Jr. '41 and Daniel Klubock, he filed a motion to have the order quashed and moved that the government be required to reveal any intercepted wire communications, (i.e., wire tapping). Both motions were denied, but Popkin was not required to testify at that time.
About two months later, Popkin was subpoenaed again. Appearing before the grand jury on October 14, he answered some of the questions put to him but refused to answer others. The grand jury excused Popkin temporarily, only to recall him on October 29.
At that point, Popkin filed a motion for a protective order, with affidavits from several Harvard colleagues, asking that he not be required to answer questions dealing with "information obtained by him in his capacity as a scholar, author and teacher" and that he not be made to reveal his confidential sources. That motion was also denied.
But at the October 29 hearing, the government had apparently not yet established within its own ranks its intention to probe Popkin for other possible sources of information. "We are not interested in exposing or compromising miscellaneous sources of information which Mr. Popkin may rely upon in his research and in his writing," Assistant U. S. Attorney Warren P. Reese told Judge W. Arthur Garrity of Boston's Federal District Court. "We are concerned with illegal activity involving the acquisition and dissemination of government documents, and that limits the subject matter of our inquiry."
Later in the investigation, however, the government would be asking Popkin not only whom he knew had possessed the Pentagon Papers in Massachusetts prior to their publication--he replied he knew no one--but also whom he had interviewed in the course of his research who had led him to form an opinion on who may have possessed the papers.
The government said it was not considering this type of question on October 29, and it moved for immunity for Popkin. The court granted that motion, and ordered that Popkin "appear forthwith before the grand jury and testify and produce evidence with respect to all matters under inquiry by the grand jury." Popkin followed the order, appeared before the grand jury and was again excused temporarily.
Subpoenaed again on January 18, Popkin asked for a clarification by the court on whether prior rulings applied to the new order to appear, and simultaneously sought a protective order. The court refused to hear the motions.
And so it was back to the grand jury room on the 11th floor of the dank federal building in Boston's Post Office Square, where Popkin appeared before the jury once again, but refused to answer three of its questions. At that point, a few doors down the hall, the government decided to move for the first time to have Popkin found in contempt of court.
In response to that action, the Harvard Faculty Council passed unanimously on January 19 the first public statement of support for Popkin's position to be issued by any official body of the University.
In a resolution introduced by James Q. Wilson, chairman of the Government Department, the Council stated that "an unlimited right of grand juries to ask any question and to expose a witness to citations for contempt could easily threaten scholarly research."
It added that "when questioning a scholar about matters connected with his research, the government should demonstrate a strong need for having the questions answered. Without such a demonstration or a showing that the questions relate to the scholar's own participation or direct involvement in the commission of a crime, a scholar should be permitted to refuse to answer questions about his contacts and sources."
There the matter stood for two months until, on March 21, the court found Popkin in contempt and, at the same time, provided the clarification that he had earlier requested. Popkin offered in court to answer the three specific questions the grand jury had posed in the January hearing, but refused to answer further inquiries.
Judge Frank J. Murray found the offer unsatisfactory, and Popkin was handcuffed and removed to a detention cell in the Federal building to await placement in the Charles Street Jail. His only reading material there, he said later, was an old Life magazine article about Daniel Ellsberg.
As Popkin experienced first hand the irony of the situation, his attorneys held a hearing in chambers with Judge Bailey Aldrich of the First Circuit Court of Appeals and obtained a stay of sentence.
For Popkin, it was back to the investigative merry-go-round. He appeared before the grand jury once again on March 27, purging himself of his previous contempt by answering the three questions. At the same time, however, he refused to answer nine others. And, once again, the government moved to have him found in contempt.
As the matter went before Federal District Court Judge Garrity the next afternoon, the official transcript of the hearing in question had not yet been prepared, and Garrity ordered the case continued until it was available. Later, that day, however, The Crimson obtained an unofficial, but substantially accurate, transcript of the proceedings.
That transcript, which appeared in full in the March 29 Crimson, showed that the government was now conducting a "fishing expedition" in the grand jury room, attempting to obtain again to plan information not about the subject under investigation, but about other possible leads--any leads--that it might be able to pursue.
Despite an opening statement by Popkin testifying that he had seen portions of the Pentagon Papers only after their publication in The New York Times and that he was not aware of any plans for publication or distribution, the grand jury repeatedly asked him about his involvement in both of these matters.
Failing to obtain an affirmative answer on direct knowledge, the grand jury moved into the more questionable area of opinion. They asked his opinion on who may have possessed the papers; how he had formed his opinions; and who were his sources from which he formed his opinions.
Popkin's questions on the relevance of the line of inquiry were repeatedly rebuffed: "The grand jury does not answer questions."
When court proceedings resumed March 29, the government and the court apparently were unaware that the transcript had been published. And, as Assistant U. S. Attorney Richard J. Barry refused to allow the court to remain open while portions of the transcript were being read, many of the same portions were moving over the wires of the Associated Press.
Excluded from the hearing, reporters waited on the wooden benches of the bankruptcy court next door, analyzing the Crimson transcript. And as they waited, Popkin was again being found in contempt, and Massachusetts U. S. Attorney Joseph L. Tauro was walking rapidly to the courtroom from his office at the end of the hall with copies of the Crimson under his arm.
When the press and the public returned to the courtroom, Garrity's face was obscured by a copy of the Crimson transcript. Placing it aside, he announced his decision: Popkin was found in contempt and sentenced to a maximum of 18 months in prison, or until he agreed to answer the unanswered inquiries.
The confinement was not to be punishment, Garrity stressed, but a "sanction designed to compel answers" from Popkin. He added that Popkin had "the key in your pocket" to end the sentence at any time by consenting to provide the information.
And so the merry-go-round took one more turn, to the First Circuit Court of Appeals on the 15th floor of the same building. Briefs submitted by attorneys for Popkin and for the government both relied heavily upon the issue of a scholar's First Amendment privilege to confidential sources; Popkin's brief held, with supporting affidavits from several fellow scholars and previous court decisions, that such a right is vital to academic freedom and progress, while the government's denied that any such right existed.
The Appeals Court's decision, entered May 3, affirmed part of the lower court's judgment and vacated others. "Even if the questions put to (Popkin) have not been demonstrated to be relevant to the grand jury's inquiry, this would not justify his refusals to answer," the court wrote. And it decided further that "the reason for the claimed (scholarly) privilege lies not in the importance of protecting the officials and other sources per se but in the importance of preserving the flow of their communications via scholars to the public domain. This underlying rationale falls short of immunizing a scholar from testifying about conversations with those who are not his sources."
Thus, the court ordered that Popkin answer the three questions dealing with the names of persons interviewed who gave him knowledge of the participants in the Pentagon Papers.
At the same time, the court judged that "in the long run, the quest for opinions would not be a useful investigative tool. If (Popkin) were forced to answer, scholar-sleuths would in the future think long and hard before admitting to an opinion, and grand juries would be without workable means for forcing them to do so." And it thereby struck down the lower court decision dealing with the remaining four questions that the government had decided to press.
At this point, the case has been remanded to the lower court for action. But the merry-go-round turns slowly, and no action has yet been taken by either side. When it does, the Supreme Court may have a new and important issue to consider.