The Law: Popkin’s Plight

If Sam Popkin were an Italian-American trucker whom the authorities believed to have useful information about the operation of the Mafia, he might very well be summoned before a grand jury. He might also refuse to answer, might be sentenced to jail for contempt, and the public might be generally delighted at the spectacle of a criminal brought to justice. But Sam Popkin, 30, is not a Mafioso. He is a lecturer on government at Harvard, a recognized expert on Vietnamese village life, and the Government seems to believe he knows something useful to the prosecution of the Pentagon papers case. So last week when Popkin became, apparently, the first American scholar ever to be jailed for protecting sources, there were angry charges of Government transgression on the freedom of scholarly inquiry. The real issue was whether grand juries should be free to ask almost any question a prosecutor wants asked, and whether witnesses who balk should be imprisoned.

Popkin is no flaming radical. Though an opponent of the Viet Nam War, he has received Government funds to support research visits to South Viet Nam. He is also a friend of Dr. Daniel Ellsberg, now under indictment for giving the Pentagon papers to the press. When a Boston federal grand jury asked Popkin what he knew about the papers, he answered that he had not read them before their publication and had no knowledge of how they had been leaked (he was in Hong Kong at the time). After some complicated legal maneuvering, he refused to answer two questions,* which he said had nothing to do with the investigation and would have meant revealing confidences of nonacademic sources. Two weeks ago, the Supreme Court refused to interfere with his contempt sentence; last week the Government asked that he be jailed.

In an unusual move, Harvard President Derek Bok, former dean of the law school, appeared in court to defend Popkin and asked that the sentence be dropped so that “a conflict not exist” between the Government and the academic community. Besides, Bok said, he had been told that the Government did not intend to call Popkin back before the grand jury anyway. Government attorneys quickly answered that if Popkin would talk the grand jury was anxious to listen. With that, Judge W. Arthur Garrity concluded that Popkin should go to jail until the grand jury is dissolved, which may happen Jan. 12.

At the sight of him in shackles, his wife Susan burst into tears, then read a statement he had prepared, claiming that “if scholars are to be questioned without restriction about their sources, grand juries will become the Government’s instrument to limit the free flow of information about Government to the public. I could not justify any part I might take in setting this precedent.”

Popkin’s Harvard colleagues were generally angered by what they felt was governmental harassment of unfriendly intellectuals. But they were wary of giving scholars a special immunity to grand jury questions. “Who is a scholar?” asked Constitutional Law Expert Martin Shapiro. “Once you establish this rule, then nearly everyone can claim it.” Political Scientist Arthur Maas agreed: “If professors continue to claim they are not subject to the normal obligations of citizens, they are going to do more harm to the scholarly enterprise than good.” In the end, grand jury excesses against scholars, like those involving newsmen, may redound against grand juries themselves, reinforcing the view that their powers are generally in need of curtailment.

* 1) Whom did you interview “to acquire this knowledge of who participated in the Pentagon papers study?” 2) Who in Massachusetts “led you to the knowledge of who the participants were?”