460 F.

2d 328

UNITED STATES of America

v.
John DOE.
Appeal of Samuel L. POPKIN.
No. 72-1090.

United States Court of Appeals,

First Circuit.
Argued April 19, 1972.
Decided May 3, 1972.

William P. Homans, Jr., Boston, Mass., with whom Daniel Klubock and
Featherston, Homans & Klubock, Boston, Mass., were on brief, for
appellant.
Warren P. Reese, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S.
Atty., and Richard J. Barry, Asst. U. S. Atty., were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.

This is an appeal by Samuel Popkin from an order of the district court holding
him in civil contempt for refusing to answer certain questions propounded to
him by a federal grand jury in Massachusetts. An assistant professor of
government at Harvard University, Popkin has written numerous articles on the
war in Indochina.1 He contends first that he should not be forced to respond
without a demonstration by the government of the relevance of both the general
inquiry and the specific questions. He urges also that he should be excused
from answering those questions by virtue of a scholar's First Amendment
privilege not to divulge his sources of information insofar as those sources are
confidential and supply him with information relating to his field. Finally, he
claims that he need not testify until the government has disclaimed the use of
illegal electronic surveillance.
The grand jury which issued a subpoena to Popkin is the same as that involved

in United States v. Doe (Mike Gravel, United States Senator, Intervenor), 455
F.2d 753 (1st Cir. 1972), cert. granted, 405 U.S. 916, 92 S.Ct. 1243, 30 L.Ed.2d
785 (Feb. 22, 1972 [hereinafter Gravel]).

In ordering Popkin to testify, the district court found that the grand jury is
"engaged in an inquiry into alleged violations of Chapter 37 [Espionage and
Censorship] and Sections 2314 [Transportation of stolen goods etc.] and 2315
[Sale or receipt of stolen goods etc.] of Title 18, United States Code", with its
primary focus the dissemination of the classified Defense Department study
known as the Pentagon Papers.

Popkin was first subpoenaed to appear before the grand jury on August 19,
1971. Before that date, he moved to quash the subpoena and for disclosure of
electronic surveillance, which motions were denied. The grand jury did not,
however, ask him to testify at that time. He received a second subpoena to
appear before the grand jury on October 13. Having refused to testify on
October 14, he was ordered to reappear on October 27. On that date, he filed
motions, supported by his own affidavit and those of twenty-four other social
scientists, for an order to protect him from inquiry as to "information obtained
by him in his capacity as a scholar, author and teacher", for a transcript of his
testimony, and for disclosure of surveillance. After these motions were denied
on October 28, Popkin was granted immunity from prosecution and ordered to
testify. Again excused, he was not subsequently required to appear until
January 18, 1972. His renewed motions for a protective order and for a
transcript were denied. Upon his refusal to answer three questions, the
government sought and obtained a contempt order on March 21. Popkin purged
himself of contempt by answering these three questions on March 27, then
answered further questions but, relying on his asserted First Amendment
privilege as a scholar, refused to answer a number of other questions. Motions
for a protective order and for disclosure were again denied on March 29, and he
was held in contempt. He now appeals from the March 29 contempt order.

The district court, without opinion, based its contempt order on Popkin's refusal
to answer nine questions, of which the government now presses seven. In order
to understand the scope of Popkin's refusal to testify, it may be useful first to
sketch the relevant parts of his testimony in response to the questions he did
answer. He did state, among other things, that he had never seen a copy of the
Pentagon Papers other than those in mass distribution, that he had not discussed
with Daniel Ellsberg the possibility of releasing a copy of the Pentagon Papers
to Neil Sheehan (of the New York Times), that he had no knowledge other than
from public sources as to how various newspapers had obtained copies of the
Pentagon Papers, and that he "was never given definitive information that

someone possessed" the Pentagon Papers in Massachusetts. In addition, Popkin

admitted having an opinion that certain unnamed persons had possession of the
Pentagon Papers in Massachusetts, explaining that this opinion was formed on
the basis of conversations "with numerous persons about numerous decisions
and documents, I see now that a lot of those decisions and documents are in the
Pentagon Papers".
6

The questions Popkin refused to answer represent three lines of inquiry which,
while overlapping, we will consider separately. One line of inquiry attempted to
identify the participants in the Pentagon Papers study or, more precisely,
persons having knowledge as to who participated in the study. This inquiry
began with the question: "Who are the persons you interviewed in order to
acquire this knowledge of who participated in the Pentagon Papers study?"
(chronologically, question 2). This was followed, after Popkin had declined to
answer and had indicated in response to subsequent questions that it had never
been his research object to discover who participated in the study, by the
colloquy (question 3):

7 Who are those persons to whom you are referring with regard to conversations
"Q.
in the District of Massachusetts which led you to the knowledge of who are the
participants in the Pentagon Papers study?"
8******
9* * *
"Q. Would you please name them?
10
A. I respectfully and regretfully decline [etc.]."
11
12

The second line of inquiry is more explicit and is self-explanatory. Popkin

refused to answer the question "Did Daniel Ellsberg ever discuss with you the
content or existence of the Pentagon Papers between January 1, 1971 and June
13, 1971?" (question 4).

13

The third line of inquiry, finally, related to his conceded opinion as to

possession of the Pentagon Papers, beginning with the question: "[W]hat is the
opinion as to persons you believe possessed a copy of the Pentagon Papers in
Massachusetts prior to June 13, 1971" (question 1). The line of inquiry was
then temporarily dropped, but was later resumed by repetition of the question
(question 5). Subsequently, he refused to answer the question "Would you
please name them, those persons who furnished you information which caused
you to form an opinion as to persons you believe possessed a copy of the

Pentagon Papers in Massachusetts prior to June 13, 1971?" (question 6) and the
similar, but somewhat more focussed, question "Who was the conversation
with discussing the documents or decisions indicating that person had
knowledge or possession of the Pentagon Papers?" (question 7).
14

We first discuss appellant's concept that, at least when a grand jury inquiry
impinges on the First Amendment rights of a witness, a preliminary showing of
relevancy is required. Despite the long-standing doctrine of Blair v. United
States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919), that a grand
jury witness is "not entitled to urge objections of incompetency or irrelevancy"
appellant relies on such legislative inquiry cases as Watkins v. United States,
354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957) and Scull v.
Commonwealth of Virginia, etc., 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865
(1959).

15

We are in effect being asked to make new law on the basis of the assumption
that grand jury and legislative inquiries function in so similar a fashion that they
should be treated alike. The argument, so considered, is not without initial
appeal. But a legislative investigation has as its object the resolution of a
previously identified problem of a general nature. The power, while broad, is
limited to advancing the general resolution. To the extent that individuals can
supply information related to the legislative task, they must respond. When the
broad brush seeks not only to paint the scene but to detail individual portraits
unnecessary to that scene, it ventures too far. The concept of relevance to the
legislative purpose is necessary to preserve the boundary between the
legislative and the individual, and can ordinarily be enforced by reference to
statements of purpose and prior testimony which are already matters of public
record.

16

A grand jury generally has a much smaller object in view, but one in which
society has intense interest. At least when inquiring into specific crimes, a
grand jury paints with a small brush and necessarily with painstaking detail. Its
purpose is to see if there is probable cause to believe that particular crimes have
been committed by particular persons, although further crimes and perpetrators
may be discovered in the course of taking evidence. In either case, the number
of facts which would help to identify the crime and the criminal may well be
few, and the relevance of one fact may only become apparent after another is
uncovered. Thus while the public product of a grand jury is a limited number of
indictments, its processes may include the pursuit of numerous strands of
evidence, many of which may uitimately be of no use, but none of which can
safely be abandoned. From another perspective, even where a grand jury is
working on the clear hypothesis of a prosecutor, its success may often depend

upon its ability to offer to witnesses a guarantee of secrecy and to suspects the
protection of secrecy unless probable cause is found to indict. Any meaningful
statement of relevance in response to a witness's request would entail the
naming of suspects and the description of prior testimony. Even if a present
witness has no wish for secrecy, disclosure would injure other witnesses and
suspects. We therefore reject appellant's argument based on the asserted
similarity of this grand jury to a legislative hearing.
17

Appellant also attempts to draw support for a rule of relevance from Fourth
Amendment cases, such as Oklahoma Press Publishing Co. v. Walling, 327 U.
S. 186, 209, 66 S.Ct. 494, 90 L.Ed. 614 (1946). As to this, we deem sufficient
Judge Hamley's reference in United States v. Weinberg, 439 F.2d 743, 749 (9th
Cir. 1971), to the following language of Judge Zirpoli in In re Grand Jury
Witnesses Sherrie Bursey and Brenda Joyce Presley, 322 F.Supp. 573, 576
(N.D.Cal.1970):

18 grand jury does not need to have probable cause to investigate; rather its
"The
function is to determine if probable cause exists. And if probable cause is not
required to investigate, it follows that probable cause is not required to make the
preliminary showing necessary to call a witness whose testimony may shed light on
criminal activity. . . ."
19

We conclude that, even if the questions put to appellant have not been
demonstrated to be relevant to the grand jury's inquiry, this would not justify his
refusals to answer. His invocation of the First Amendment adds nothing to his
relevancy claim in the context of a grand jury investigation. Whether he has
presented a First Amendment claim strong enough to be treated as a
constitutional privilege is a separate question.

20

In determining whether appellant may refuse to answer any or all of these

questions, we are presented, as in Gravel, with a confrontation of constitutional
power and constitutional privilege, heightened by similar overclaiming on each
side. Here also there is little direct precedent to guide us, and though the
Supreme Court may soon pronounce law that bears on the balance between the
power of the grand jury and First Amendment privileges, 2 we may not await its
decision.3

21

The government argues that the scholar's privilege is a creature not to be found
in the province of jurisprudence; that the closest analogue, a reporter's
privilege, recognized by the Ninth Circuit in Caldwell v. United States, 434 F.
2d 1081 (9th Cir. 1970), cert. granted, United States v. Caldwell, 402 U.S. 942,
91 S.Ct. 1616, 29 L.Ed.2d 109 (1971),4 has been otherwise uniformly rejected

by the courts; and that even if Caldwell was correctly decided, appellant falls
outside its compass, his relationship with his sources not being so intimate as in
Caldwell, nor covered by the special canopy of free press, and the grand jury
being engaged in a specific rather than a general investigation. Appellant
discounts the lack of precedent as stemming from the past absence of efforts to
invade a scholar's privilege. He claims to serve a public interest fully as vital as
that served by a reporter, which interest would be as grievously imperilled by a
forced disclosure of his sources, absent a showing of compelling need by the
government.
22

In Gravel, supra, we held that the Speech and Debate Clause was sufficient to
block a grand jury from inquiring of a Senator and his aides about the receiving
and preparation for legislative publication, the publication, and any official
republication of the Pentagon Papers. Our decision, we recognized, could
substantially frustrate a grand jury, for the transactions embargoed from inquiry
might encompass a crime. But we thought the result compelled by the Speech
and Debate Clause, which is not involved here.

23

For perspective, it is important to recognize what has not been and could not
successfully be argued here. Appellant could not, for example, cite his
discomfort in being asked to testify about others. Although the discomfort is
real, it is shared by all grand jury witnesses. Indeed, a witness called before a
grand jury investigating organized crime may legitimately fear for life and
limb. Nor can appellant stand on a claim, however justified, that his livelihood
as a researcher is threatened. His privilege, if it exists, exists because of an
important public interest in the continued flow of information to scholars about
public problems which would stop if scholars could be forced to disclose the
sources of such information. Appellant is a political scientist. As is true of other
behavioral scientists, his research technique rests heavily on inquiry of others as
to their attitudes, knowledge, and experience. Often such inquiry is predicated
on a relationship of confidence. The question posed to us is whether this
relationship gives a scholar a constitutionally based privilege not to testify
which others do not possess.

24

Although both parties have cast their arguments in these broad terms, the
substantiated rationale of appellant and the questions put by the grand jury do
not, in our opinion, quite meet head on. The overwhelming majority of
appellant's affidavits from other scholars lay stress on the importance of a twoway communication between participants in decision making (or those
affected) and scholars. The asserted importance of non-disclosure of a network
of sources lies in the necessity for a continued flow of inside information to the
sphere of scholarly reporting, assessment, and criticism, a flow made

particularly important by the selective and self-serving release of information

by other, particularly higher officials.5 In short, the thrust of the asserted
privilege bears on the right of the scholar not to disclose the identities of his
"contacts and sources", those officials and non-governmental actors within the
purview of his specialty whose actions, knowledge, and views give him the
primary data for his work.6 The reason for the claimed 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.
25

This underlying rationale falls short of immunizing a scholar from testifying

about conversations with those who are not his sources. Of course a scholar
may also be an official or such a participant in an activity that he is also a
sensitive source. But to the extent that a scholar qua scholar is asked about
statements made to him by other scholars we do not conceive of him as in any
different position from that of a doctor asked about his conversations with other
doctors, or a lawyer about his talks with other lawyers. Nor is there reason to
believe that scholars, as opposed to public officials, will lose their jobs and thus
their usefulness as sources if the contents of their conversations are revealed to
a grand jury. And while we acknowledge that scholars customarily discuss their
work with colleagues and in doing so may perhaps violate confidences, a
privilege which would give comprehensive protection to such collateral
discussions would make scholars a uniquely privileged class in the broadest
sense.

26

We therefore conclude that the two questions seeking the names of persons
interviewed who gave him knowledge of participants in the Pentagon Papers
study should be answered, at least to the extent that the persons were not
government officials or other participant-sources. One of the questions, relating
to persons in Massachusetts, seems not to be directed either to foreign affairs,
intelligence, or defense officials in government or to any person, in or out of the
government, in Vietnam. Were it to become clear that a question delved into
confidential relationships with such persons, we are not sure that the grand jury
would see fit to pursue its inquiry. If it did, however, would at least have a
factual setting enabling us to address the issue less theoretically.

27

This analysis also disposes of the question asking whether Ellsberg discussed
with appellant the content or existence of the Pentagon Papers between January
1 and June 13, 1971. There is no representation that Ellsberg during that period
was a government official, or otherwise a sensitive source, or even that Popkin
had established a confidential relationship as to these matters with Ellsberg
when the latter was a public official.

28

What this analysis does not dispose of is the remaining group of questions
seeking appellant's opinion concerning who might have possessed the Pentagon
Papers generally or in Massachusetts and the persons with whom he talked who
gave him a basis of that opinion. Appellant had candidly testified that, while he
had no knowledge of possession in Massachusetts, he had formed opinions over
the years as to persons he thought had had access to the Papers. This kind of
inquiry, at least in the present posture of this case, does not appeal to the author
of this opinion. Appellant in his brief has asserted that he knows of no case
where a witness has been held in contempt for refusing to give an opinion. Nor
do I. In the long run, the quest for opinions would not be a useful investigative
tool. If appellant 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.

29

Beyond this, and more to the point, the previously stated basis for his opinion
lay in matching the content of conversations he had had with the content of
what subsequently publicly appeared, and deducing that the source was the
Papers. Appellant testified that many people had publicly admitted having had
access to the Papers or copies thereof. It is reasonable to assume that much of
the work forming the basis of appellant's judgment is as well known to
government experts as to appellant. In this connection, note the statement, in
the Attorney General's instructions regarding subpoenas to the press, that "The
Department of Justice does not consider the press 'an investigative arm of the
government"' (quoted in Levin v. Marshall, 317 F.Supp. 169, 173-174 (D.Md.
1970). Nor has the government here shown that it cannot obtain the
information it seeks other than by procuring Popkin's opinion.

30

The generality of the opinion questions here, the apparent basis for the opinion
being pursued, and the idea of using one scholar to speculate about the sources
of others' work, without any showing of strong need therefor, are repugnant to
me. In my view, even apart from constitutional claims, we should exercise our
supervisory power to state that in this circuit scholars ought not to go to prison
for refusing to give their opinions or beliefs based on casual and retrospective
reflections on similarities of content. But while my brothers agree that the
opinion questions were improper, their objection is a narrower formal one. See
infra. Accordingly, at present we simply disapprove the questions as asked.

31

In addition to appellant's relevancy and First Amendment justifications for

refusal to answer, he asserts that he is under no further duty to testify until the
government makes a satisfactory disclosure that no illegal electronic
surveillance has tainted the questioning. We have traced the history of
appellant's attempts to force disclosure, the last and most formal and specific

motion being filed on March 28, the day after his last grand jury appearance,
and specifying as the ground for his claim that he had been asked his telephone
number.
32

It may be, as a majority of the Third Circuit held in In the Matter of Egan, 450
F.2d 199 (3rd Cir. 1971), cert. granted United States v. Egan, 404 U.S. 990, 92
S.Ct. 531, 30 L.Ed.2d 541 (Dec. 14, 1971), that a grand jury witness has
standing in a civil contempt proceeding to raise as a defense the prohibition in
18 U.S.C. Sec. 2515 against the introduction of evidence based upon electronic
surveillance, or, as a majority of a District of Columbia Circuit panel held in In
re Evans, 452 F.2d 1239 (D.C. Cir. 1971), that a grand jury witness has
standing under 18 U.S.C. Sec. 2518(10) (a) to make a motion to suppress, or
that he has standing under 18 U.S.C. Sec. 3504(a) to make the government
affirm or deny the use of illegal electronic surveillance. On the other hand, it
may be that he has standing under none of these sections. United States v.
Gelbard, 443 F.2d 837 (9th Cir. 1971), cert. granted, Gelbard v. United States,
404 U.S. 990, 92 S.Ct. 529, 30 L.Ed.2d 540 (Dec. 14, 1971). We do not reach
the question because we find that Popkin, even if he has standing, has failed to
make sufficient claim that the issuance of the subpoena or the asking of
questions is the product of illegal surveillance.

33

Section 2518(10) (a) indicates that a motion to suppress evidence obtained by

illegal electronics surveillance may be made on any one of three "grounds"7
and that "[s]uch motion shall be made before the trial, hearing, or proceeding
unless there was no opportunity to make such motion or the person was not
aware of the grounds of the motion." The language of Sec. 3504(a) (1)-"upon a
claim by a party aggrieved that evidence is inadmissible because it is the
primary product of an unlawful act or because it was obtained by the
exploitation of an unlawful act"-carries with it, we think, a similar
responsibility on the aggrieved party to make a threshold showing, although the
threshold may be considerably lower. See In re Evans, supra, 452 F.2d at 1268
(Wilkey, J., dissenting), and the legislative history detailed there. And while
Sec. 2515 contains no comparable requirement, neither does it explicitly
provide a remedy. Any implied remedy would, in our view, import a
requirement of some showing of basis for suspecting illegal action. Otherwise,
the two last cited sections would in effect have enacted an automatic disclosure
rule, which we do not think the Congress intended.8

34

At the same time, we note the statement of Chief Judge Bazelon in In re Evans,
supra, 452 F.2d at 1247, that the duty of the government to disclose under Sec.
3504(a) (1) "is triggered . . . by the mere assertion that unlawful wiretapping
has been used", and are sensitive to the concern which underlies it.9 We

recognize full well that it is difficult, and perhaps impossible, particularly in the
early stages of a case when he is called before the grand jury, for a witness to
know that he has been the subject of electronic surveillance. We would concede
the absurdity of requiring precise information about a surveillance, which,
unless poorly done, could not be pin-pointed by the victim. Because of the
elusive nature of electronic surveillance, adequate grounds might be gleaned
from a number of circumstances, including subject matter, association,
coincidence or events.
35

In the present case, the district court found no such circumstances as would
lead it to suspect illegal electronic surveillance. At one stage of the
proceedings, on January 18, by way of preliminary questioning, the grand jury
asked his name, his address, and his telephone number. The last question was
asked again and answered on March 27. We can attach no sinister inference to
the fact that the government sought to record these identifying items. The
telephone number was in the telephone book. If we drew any inference as to
surveillance it might be, in the light of the history of the Pentagon Papers
investigation, cf. In re Marx, 451 F.2d 466 (1st Cir. 1971), that the government
wanted to be ready to prepare a disclaimer if the court ordered it, which, of
course, it never did. Furthermore, the questions asked in the grand jury were of
the broadest and most speculative kind, bearing no hallmark that the
government had any specific notion of what Popkin might be able to contribute.
On this record, we do not think that the district court erred in refusing to
compel the government to affirm or deny illegal electronic surveillance.

36

The government makes a further point. Although Popkin filed motions to the
court raising the matter of illegal surveillance, when he refused to answer
questions on March 27 he asserted at length the First Amendment privilege
which had been the basis of his original affidavit, but made no mention of his
allegation or defense of electronic surveillance. The government says this was a
waiver, and suggests that the grand jury might accept the claim. While we need
not and do not decide whether his actions constituted a waiver, because of his
failure adequately to claim illegal electronic surveillance at any time, we
believe it behooved him, particularly with the Marx precedent before him, to
reassert the surveillance point when he refused to answer.

37

Affirmed in part, reversed in part.

38

ALDRICH, Chief Judge (concurring).

39

We are, to the extent that we are asked to recognize any privilege here at all,

exploring very new ground, and while Judge McEntee and I agree with the
result, and much of Judge Coffin's opinion, our cast would be somewhat
different. A minor difference relates to Judge Coffin's approach to the questions
about Popkin's "opinions" as to who had had possession of the Pentagon
Papers. Our only objection to those questions is the semantic one that they are
badly phrased. What, after all, is meant by an opinion? Had the question been,
"Is there anyone who you have reason to believe had possession of the papers in
Massachusetts, and what are the reasons?" it would have seemed just the sort of
inquiry that might lead to something useful. One cannot expect gold with every
stroke of the pick.
40

Of more significance, we are not so sure on what the court calls "decisionmaking (and those affected)" sources. A valuable, confidential source may be at
a very low, and even unrelated level. If what is sought to be protected is the
public interest in information, should not the need of confidentiality be the test,
not the position of the source?

41

This question leads us to a dilemma. What assurance does a court have that
there is a need of confidentiality in the particular case? Popkin, if we judge
from his oral argument, believes that he should have an all-encompassing
mantle in whatever may be his field, so that he can be known as a "safe" man to
talk to. We do not read Judge Coffin as going that far; nor would we. But where
does one stop?

42

Perhaps I am old-fashioned, but I was taught that a scholarly study was

valuable to the extent that it disclosed its sources. How does Popkin know that
he, and hence his public, is not being hornswoggled by a "source"? Is there
great public worth in a book, the reference table of which consists of a bare
curriculum vitae of the author?

43

The answer may be yes, and may be no. I am tempted to wonder, though I hope
uncharacteristically, if too much is not being asked of the First Amendment.
Hearst could consider Walter Winchell so valuable to it that it was willing to
agree that, in case of a libel suit, it would pick up the tab and not require him to
divulge his source. Is the public so interested in research that the government
finds itself with a similar, although diminished in scope, contract of immunity
from disclosure with every Ph.D.? If so, we believe it should be in very narrow
limits. Happily this case does not call for them to be defined.

According to his affidavit, which lists his published works, Popkin has written

on a number of war-related subjects ranging from the war's effect on

Vietnamese village life and the use of herbicides to more general questions of
American policy in Southeast Asia. The affidavit further states that he is
presently writing a book "involving the war in Viet Nam and its origins", and
that he is a researcher at Harvard's Center for International Affairs and a
member of the editorial board of the journal "Public Policy"
2

Argument has been heard in United States v. Caldwell, infra, 40 U.S.L.W. 3405
(Feb. 22, 1972). The precise issue in that case is whether a reporter, claiming a
freedom of the press First Amendment right, can be compelled to appear before
a grand jury, even though he has already been given the protection of an order
barring inquiry into his confidential sources. The witness here is making the
narrower claim that, having complied with a subpoena, he may refuse to answer
certain questions

28 U.S.C. Sec. 1826(b) requires that we decide this appeal within thirty days
after it was filed. We recognize that we have not quite met our deadline.
Although we gave this matter first priority, when faced with the choice of
exceeding the statutory period or sacrificing deliberation, we chose the former

See also Nejelski & Lerman, A Researcher-Subject Testimonial Privilege:

What To Do Before the Subpoena Arrives, 1971 Wisc.L.Rev. 1085; Note,
Reporters and Their Sources: The Constitutional Right to a Confidential
Relationship, 80 Yale L.J. 317 (1970)

This assertion seems buttressed by other experienced observers of the national

scene. C. L. Sulzberger, in A Long Row of Candles-Memoirs & Diaries 19341954 (MacMillan, 1969), states at p. xvi: "May I only summarize by saying
these things. Rule A for a newspaperman is that 'leaks' are the food of the trade;
and over the years I have found that, as with the best drinks, the leak always
fizzes from the top. The desire for indiscretion at the upper level seems
compelling."

A resolution of the Faculty Council of the Harvard Faculty of Arts and

Sciences, which appellant calls to our attention, takes a similar approach. It
states, in part, that
"Without such a demonstration [of strong need] 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." (Jan. 19, 1972).

The possible grounds are that

"(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is
insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization
or approval." 18 U.S.C. Sec. 2518(10) (a).
8

Judge Wilkey's dissent in In re Evans sketches some of the costs and

complexities of making a disclaimer. 452 F.2d at 1255. Even if a disclaimer is
not or need not be quite so great an ordeal as is there indicated, it is
nevertheless true that sufficient delay and expense are involved to suggest that
Congress must have known as much and not intended that, in effect, every
subpoena to every grand jury witness have attached to it a disclaimer or log of
surveillance

Even this must be read in light of his later statement that the claim in the case
before him was not "patently frivolous", 452 F.2d at 1250