NEW YORK – The Knight First Amendment Institute at Columbia University today published for the first time two Office of Legal Counsel (OLC) memos related to the Pentagon Papers, one written just before the Supreme Court decided the Pentagon Papers case on June 30, 1971, and the other written just after. The Institute obtained the documents as part of a landmark legal settlement in a case seeking disclosure of OLC opinions written more than 25 years ago. The Institute has already published hundreds of other OLC memos obtained through the settlement, and it expects to publish others over the next weeks.

“These two memos shed new light on one of the most momentous clashes in the history of the First Amendment, and on a case that helped define press freedom,” said Stephanie Krent, staff attorney at the Knight First Amendment Institute. “We’re glad these historically important documents will now be available to scholars, journalists, advocates, and others.”

The documents released today were written immediately before and soon after the Supreme Court issued its decision in New York Times v. United States. They illuminate the Nixon administration’s effort to halt the publication of the Pentagon Papers—a secret history of the Vietnam War—and its effort to prosecute those responsible for their publication. The documents the Knight Institute is publishing today are:

• A memo from OLC lawyer Frederick W. Lambert to Robert Keuch, then the head of what is now known as the Justice Department’s National Security Division, titled Permanent Injunctive Relief Against the Publication of the Defense Department Vietnam Study by the New York Times, and dated June 16, 1971. William Rehnquist, who was then the Justice Department lawyer in charge of the OLC, and who was responsible for evaluating the Justice Department’s likelihood of obtaining an injunction against the papers’ publication, was copied. The memo opined that the attorney general did not need to rely on specific statutory authorization to seek an injunction against the continued publication of the Pentagon Papers, but would likely need to demonstrate “irreparable damage to the national security” in order to succeed. Lambert suggested that the Justice Department argue that the publication of “top secret” documents would be sufficient to show irreparable damage, which, if accepted, would have given the government broad power to obtain prior restraints against reporting about national security. Read the document here. 
• A memo from OLC lawyer Thomas E. Kauper to John Dean, then Nixon’s White House counsel, titled Criminal Prosecution for Disclosure of Classified Information Relating to Defense Department Vietnam Study, and dated July 28, 1971. The memo, written shortly after the Supreme Court’s decision allowing the publication of the Pentagon Papers to continue, analyzed the Justice Department’s possible paths to “prosecuting government employees, private citizens, reporters, and newspaper entities” involved in the papers’ publication. Kauper concluded that newspapers might be subject to criminal liability under 18 U.S.C. § 793, and potentially 18 U.S.C. § 2 and 18 U.S.C. § 371, although ultimately the Justice Department only prosecuted Daniel Ellsberg and Anthony Russo. Read the document here. 

Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to its request, the Institute filed suit on behalf of five scholars, Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indexes of OLC opinions written between 1945 and February 15, 1994. It has also agreed to release hundreds of opinions reflected on those indexes. 

“Despite the historical and political significance of OLC memos, the government keeps the majority of these opinions secret, which means the public is in the dark about the government’s interpretation of laws relating to a range of issues, including national security, war, immigration, and civil rights,” said Alyssa Morones, legal fellow at the Knight Institute. “It shouldn’t take a lawsuit to unearth memos that should have been publicly released as a matter of course decades ago.”

The Knight Institute maintains an OLC Reading Room on its website that is the most comprehensive public database of opinions written by the OLC. It contains the approximately 1,400 opinions published by the OLC in its online database and the approximately 350 opinions produced to date in two FOIA lawsuits brought by the Knight Institute. In January, the Institute launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its online database—a process that generally happens without public notice. So far, @OLCforthepeople has tweeted three times, to announce the publication of two OLC opinions written in 2022 and a third that was written in 1970 but remained secret until April of this year.

Access the Knight Institute’s OLC Reading Room here.

Read more about Francis v. DOJ here.

For more information, contact: Adriana Lamirande, [email protected].