Memorandum, Oscar Cox (DOJ) to Attorney General Francis Biddle, Chicago Tribune Leak Trial Issues, June 16, 1942
National Security Archive
Cox’s 1942 memo shows how the DOJ sought to turn every newsstand into a crime scene, expanding federal reach across the nation in the name of wartime secrecy.
Source: Memorandum, Oscar Cox (DOJ) to Attorney General Francis Biddle, Chicago Tribune Leak Trial Issues, June 16, 1942 Date: Jun 16, 1942 Archive: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 2, June 12, 1942.” Collection: Secrecy And Leaks: When The U.S. Government Prosecuted The Chicago Tribune Oct 25, 2017
Editorial Analysis
Original analysis by the DriftSeas editorial desk. The complete primary-source document, transcribed from the National Security Archive scan, appears in full below.
The Legal Puzzle of a Wartime Leak
In June 1942 Oscar Cox, then a senior attorney in the Department of Justice, sent a terse memorandum to Attorney General Francis Biddle outlining how the government could prosecute the Chicago Tribune for publishing classified naval material. The memo is not a narrative of the case—it is a legal‑strategy paper that wrestles with a question that had never before been tested on a national‑scale press: where, geographically, could a federal espionage prosecution be anchored when the alleged crime unfolded across a network of newspaper presses, distribution centers, and countless newsstands?
Cox’s analysis was prompted by the Tribune’s October 1941 story that reproduced details of the U‑boat “wolf‑pack” tactics the Navy had kept secret. The story, based on a leaked Navy document, sparked a swift response from the War Department, which invoked the Espionage Act (Section 1(d) of Title 50) to seek criminal penalties not only for the leaker but for the newspaper’s editor, publisher, and the corporation itself. The memorandum therefore sits at the intersection of two wartime imperatives: protecting operational secrecy and preserving the constitutional limits on federal criminal jurisdiction.
Venue as a Weapon in the Espionage Fight
Cox’s memo reads like a courtroom briefing, but its import goes beyond procedural minutiae. By arguing that each defendant could be tried in any district where a copy of the offending newspaper was purchased, the Justice Department was effectively expanding the reach of federal power to every corner of the United States where a citizen might have bought a paper. This was no idle academic exercise; it was a direct response to the practical reality that the Tribune’s circulation spanned dozens of districts, meaning that a single prosecution could be launched in a jurisdiction far removed from the Navy’s Pacific theater.
The memo leans heavily on Supreme Court precedents—Haas v. Henkel, Hyde v. United States, United States v. Lombardo—to argue that a “crime” that spans districts is deemed to have occurred in each district where a substantial act took place. Cox frames the act of “communicating” classified material as complete only when the newspaper lands in a subscriber’s hands, thereby turning every newsstand into a potential crime scene. He even cites the 1911 Judicial Code provision that allows an offense begun in one district and completed in another to be tried in either, underscoring the government’s intent to avoid the logistical nightmare of proving which specific reader might have relayed the information to an enemy.
What the memo does not say, but what the subtext reveals, is a willingness to stretch venue doctrine to its limits in service of wartime security. By treating each distribution point as a locus of criminal liability, the DOJ signaled that the press could be held accountable in multiple forums, a prospect that would have had a chilling effect on newspaper editors contemplating the publication of any material deemed sensitive.
Legacy of the Chicago Tribune Case
Although the government ultimately elected not to pursue the full suite of charges outlined in Cox’s memorandum—largely because of concerns about public backlash and First‑Amendment implications—the legal reasoning it contains persisted. The venue analysis foreshadowed later debates during the Cold War and after 9/11 about whether the internet, like a newspaper, creates a diffuse crime scene that can be prosecuted in any district where content is accessed.
Cox’s memo also illuminates the internal dynamics of the Biddle administration. Biddle, a former Supreme Court justice, was navigating a delicate balance between wartime exigencies and civil liberties. The memorandum’s careful citation of constitutional text and case law suggests an awareness that any overreach could be weaponized by civil‑rights advocates after the war. In this sense, the document is a snapshot of a government trying to reconcile the Constitution with the exigencies of total war.
Today, as scholars reassess the boundaries of press freedom during crises, Cox’s 1942 analysis remains a touchstone. It reminds us that venue—often taken for granted as a procedural footnote—can become a strategic lever in the broader contest between state secrecy and a free press. The memo’s nuanced argument that a single newspaper issue can create multiple criminal venues continues to echo in contemporary discussions about digital publishing, jurisdiction, and national security.
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ADDRESS REPLY TO "THE ATTORNEY GENERAL" AND REFER TO INITIALS AND NUMBER
DEPARTMENT OF JUSTICE WASHINGTON, D. C.
June 16, 1942
[OFFICE OF THE ATTORNEY GENERAL RECEIVED JUN 16 1942]
M E M O R A N D U M
TO: The Attorney General
FROM: Oscar Cox
SUBJECT: Disclosure of certain naval information: problems of venue and related matters.
- In an accompanying memorandum of today's date, the substantive aspects of certain disclosures of naval information are discussed. A short statement of facts is there given.
This memorandum discusses the following questions:
(1) Assuming a violation of law by the reporter, the managing editor of B newspaper, the company publishing it, and the publisher, can they be tried in any district in which the newspaper was received by a subscriber or newsstand?
(2) Can these trials be combined?
(3) Assuming a violation of the law by the managing editors of B and C newspapers, and a conspiracy between them and A, the reporter, can all be tried jointly in a certain district in which subscribers to both B and C can be found? If no conspiracy exists?
The answers appear to be as follows:
(1) Each defendant can probably be tried in any district in which the newspaper was received.
(2) The trials will be separate, in the absence of proof of conspiracy.
FOR DEFENSE BUY UNITED STATES SAVINGS BONDS AND STAMPS
146-7-23-25 DEPARTMENT OF JUSTICE AUG 11 1950 DIVISION OF RECORDS
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(3) Assuming a conspiracy, the trial of all can be held jointly in a common district.
- Problems of venue: place of trial. Assuming a viola- tion of the law by the reporter and his superiors--managing editor, publisher, and newspaper company--it is probable that each defendant can be tried (whether separately or jointly will be discussed below) in any district in which a copy of the newspaper containing the criminal dispatch was received by a subscriber or newsstand.
The Constitution of the United States provides that:
"The trial of all crimes . . . . shall be held in the State where the said crime shall have been committed . . . ." (Article III, sec. 2) and that
"In all criminal prosecutions, the accused shall en- joy the right to a . . . . trial by an impartial jury of the state and district wherein the crime shall have been committed . . . ." (Amendment VI).
These constitutional provisions do not give a defendant a constitutional right to be tried only in the district of his resi- dence or principal place of business. Haas v. Henkel, 216 U.S. 462 (1909). His right is to a trial in the district where the crime was committed.
It seems to be reasonably well established by the Supreme Court that a "crime," which involves a sequence of acts crossing dis- trict boundaries, is committed in any district in which any substan- tial act in the sequence took place. Hyde v. United States, 225 U.S. 347 (1911); United States v. Lombardo, 241 U.S. 73 (1915). The dis- cretion of the Attorney General and the constant supervision of the courts are regarded as sufficient safeguards against double jeopardy and unnecessary multiplicity of suits.
The most significant act in the crime of "communicating" or "transmitting" a document relating to national defense to "any person not entitled to receive it" under Section 1(d) of the Espionage Act (U.S.C., title 50, sec. 31(d) ) must be the actual presentation of the contents of such a document to the person not entitled to receive it. When such communication or transmission is effected through the medium of a newspaper, that act occurs only when the recipient of the
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newspaper has it in his control. The factual chain of events which constitute the legal crime begins of course when the reporter first illegally scans the forbidden document, but it does not end until the whole institutional apparatus of newspaper publication has deposited the finished paper in the hands of the subscriber or purchaser. To seize upon any one factual event in the crime chain--such as the physical rolling of the papers off a press--and to say that such an event only is "the crime" and that the crime is "committed" only at the locus of that event would be as unrealistic as it would be subversive of the policy of the statute. It is not some physical step in the publishing process which is prohibited but the communication of defense information to unauthorized recipients. The fact that there may be unauthorized recipients in many districts only aggravates the crime. It would put an insuperable burden upon the government to require it to show which unauthorized recipients actually passed the information on to the enemy and, hence, to fix its venue there.
Direct case authority to support this reasoning is scant. Helpful analogies can, however, be found in cases involving the unlawful transmission of goods and fraudulent mail practices. Montgomery, Manual of Federal Jurisdiction and Procedure, sec. 1150 (1942). The famous old case of In re Palliser, 136 U.S. 257 (1889), which held that the offence of tendering a contract for the payment of money in a letter mailed in one district and addressed to a public officer in another, to induce him to violate his official duty, could be tried in the district in which the letter was received by that officer, is squarely in point. The opinion contains excellent supporting language.
Opposing authority is equally scant. The federal criminal libel cases are old, by lower courts, not numerous, and poorly reasoned. They have been often criticised. Miller, Criminal Law (1934) 495; 23 Harvard L. Rev. 307; 26 Yale L. J. 308. Many state court decisions are to the contrary. Annotation: 37 A. L. R. 914. The leading case, United States v. Smith, 173 Fed. 227, could easily be distinguished or discredited.
One section of the Judicial Code, U.S.C., title 28, sec. 103, could be construed as relevant. This provides that:
"When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt
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with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein. (R.S. § 731; Mar. 3, 1911, c. 231, § 42, 36 Stat. 1100.)"
If the argument above that a significant act of the chain "crime" was "committed" in the district where the newspaper was received is accepted, an equally plausible argument could be made under this section that the offense was "completed" in such district. The argument from the facts and from policy would be substantially the same.
For determining the place of trial, and allocating power be- tween courts, the concept of "venue" serves the same function for different federal districts that the concept of "jurisdiction" serves for the states. State courts are--it should be noted by way of ano- logy--rapidly getting away from the naive notion that a "crime," in- volving a sequence of acts crossing state boundaries, is physically "located" on some one spot. Thus Mr. Berge observes in Berge, Crimi- nal Jurisdiction and the Territorial Principle, 30 Mich. L. Rev. 238 (1931) at p. 269:
". . . . the conclusion is irresistible that if
the constituent acts of a given crime occur in more
than one state, each such state has an equally valid
claim to jurisdiction over the whole crime. Such extra-
territorial elements should be frankly recognized by
courts and no attempt should be made to cover them with
legal fictions."
- Separate trials. Where two or more defendants are accused of the same crime, i.e., if they are conspirators, or princi- pal and accessory, they may be tried together. Even here, however, the court may in its discretion order separate trials, upon proper motion. Where the crimes are different, though related in nature or linked by events, the defendants are entitled to separate trials, if the objection is seasonably raised. See Montgomery's Manual of Federal Jurisdiction and Procedure (4th Ed., 1942) sec. 1238; Hughes, Federal Practice (1931, 1941 Supp.) sec. 7084.
In the instant case, unless the conspiracy theory is relied upon, the defendants would appear to be entitled to separate trials.
- Conspiracy. If a conspiracy to violate the Espionage Act can be shown (which does not appear probable on the facts now
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known to me), the defendants can be tried together in any district in which the conspiracy was formed or in which an act was done to effec- tuate the object of the conspiracy. Hughes, Federal Practice (1931, 1941 Supp.) sec. 6849.
- Questions of policy. The newspapers usually stand to- gether on questions affecting their common interest. The locus of a suit against reporters, editors and proprietors is a matter of major importance to the publishing trade. If it is established that suits based on libel or violations of the Espionage Act can be brought at any point at which even a single subscriber receives the publication, the trade would feel itself in grave jeopardy. Accordingly, an attempt to start a prosecution at a point remote from the place of publication might raise a nation-wide outcry from the press, and prevent the public from reaching an understanding of the merits of the case.
Oscar Cox
NATIONAL SECURITY ARCHIVE
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