Memorandum for the Record, William D. Mitchell (DOJ), “TRIBUNE Case,” July 15, 1942
National Security Archive
A 1942 DOJ memo reveals why the government chose not to prosecute Chicago Tribune reporters for leaking a classified naval dispatch, exposing early limits of the Espionage Act.
Source: Memorandum for the Record, William D. Mitchell (DOJ), “TRIBUNE Case,” July 15, 1942 Date: Jul 15, 1942 Archive: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 6, July 1-August 13, 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.
A Wartime Leak Case at the Crossroads of Law and Censorship
The memorandum dated July 15 1942 is a legal assessment drafted by William D. Mitchell, then serving as special counsel for the Department of Justice, on the feasibility of prosecuting two Chicago Tribune journalists—reporter John A. Johnston and managing editor Joseph H. Maloney—for violating Navy censorship during World War II. The document was produced in the immediate aftermath of a June 7 article that described the movement of the destroyer USS Barnett, a piece the Navy had classified as subject to prior review. Mitchell’s memo was circulated among senior DOJ officials and the Navy’s Office of Censorship as part of a broader decision‑making process that ultimately led the government to drop the case.
The memo belongs to the larger episode of wartime press‑censorship that unfolded after the United States entered the war in December 1941. In the early months of 1942, the Navy instituted a strict “censorship of war material” program, requiring any reporting on ship movements, convoy routes, or operational details to be cleared through a naval censor before publication. The program was codified in the Espionage Act of 1917 and later amendments, which criminalized the willful disclosure of “documents, notes, or writings” relating to national defense. The government’s aggressive enforcement of these statutes was intended to prevent the kind of intelligence leaks that had plagued the Atlantic theater in 1941.
Johnston, a reporter stationed aboard the Barnett, copied a secret dispatch and passed its gist to Maloney, who then rewrote the story to appear as an analysis from Washington sources. The Navy argued that the story constituted an illegal disclosure of a classified document. Mitchell’s memorandum, however, reads like a forensic legal brief: it dissects the statutory language, the factual record, and the practicalities of proving “willful” intent. He notes that the only applicable law punishes the disclosure of tangible written materials, not the transmission of “information” per se. Because the paper left on the ship was described as a “estimate” that had been discussed openly, Mitchell concludes that the prosecution would struggle to prove that a protected “document” had actually been disclosed.
Mitchell’s analysis also reveals the internal tensions between the press and the military. He acknowledges the “eagerness for a ‘scoop’” that drove Maloney to sidestep the censor, yet he ultimately recommends dropping the case, citing both legal weakness and the “inter‑ferences with Navy operations” caused by calling many officers as witnesses. This reflects a pragmatic calculus: the government could enforce the law, but doing so would risk exposing operational details in the courtroom and further straining a press that the administration still needed to cooperate with for morale and public support.
The memo’s recommendation to amend subsection (d) of section 31 to cover “information” regardless of form underscores a key legacy of the episode. Although the immediate case was abandoned, the doctrinal gap identified by Mitchell foreshadowed later expansions of the Espionage Act during the Cold War and after‑9/11, when the definition of “information” would be broadened to capture electronic communications and oral leaks. The document thus serves as an early articulation of a legal problem that would re‑emerge in the Pentagon Papers (1971) and the recent WikiLeaks prosecutions.
The actors named in the memo—Johnston, Maloney, and Mitchell—embody the competing imperatives of wartime journalism and national security. Johnston’s claim that he relied on the managing editor to obtain clearance, and Maloney’s insistence that he was unaware the material originated from a classified document, illustrate the gray zones journalists navigated when reporting on a rapidly evolving conflict. Mitchell’s measured tone, “reached this conclusion with regret,” betrays a personal discomfort with curtailing a free press, even as he acknowledges the potential damage of reckless reporting.
Why does this 1942 memorandum matter today? First, it provides a rare glimpse into the DOJ’s internal deliberations on press freedom during a period of heightened security. Second, it highlights the statutory limits of the Espionage Act as originally written—a limit that later legislators would deliberately erase. Finally, it reminds contemporary readers that the balance between a free press and national defense is not a modern invention; it has been negotiated, contested, and re‑shaped in every major conflict since World War II.
From a Censored War to an Open Archive
The declassification of this memo in the National Security Archive’s “Secrecy and Leaks” collection transforms a once‑secret legal footnote into a public artifact of constitutional history. By exposing the government’s own doubts about prosecuting journalists, the document invites renewed debate about the proper scope of the Espionage Act, the responsibilities of editors in wartime, and the enduring tension between transparency and security.
DECLASSIFIED Authority NND 76716
July 15, 1942
TRIBUNЕ CASE
Summary
The serious doubts as to the prospects of conviction arise because of defects in the statute.
The only statute applicable punishes disclosure of written instruments, viz., "documents", "notes","writings."
The case against Johnston is clear up to the point of disclosure. He obtained on the Barnett a copy of a document, viz., a secret dispatch, and communicated its contents to his editor. The proof shows, however, that he had already informed his editor about the requirement of Navy censorship. He says he therefore relied on the Managing Editor to clear the article through the Navy and was surprised it was published without such clearance.
The Navy censorship requirements did not specifically forbid his giving his stories to his editor with a view to having the editor invite censorship.
If we could establish that Johnston purloined information that he knew he had no right to he might be convicted for merely giving the story to his editor; but there was nothing about the paper he found on the ship to show it was taken from any secret dispatch or was anything more than an estimate which had been the subject of general discussion. The fact that it had been left lying around suggested there was nothing secret about it.
Johnston's conviction is therefore doubtful. Reliance on his Managing Editor to have the article censored was natural.
As to Maloney, the proof shows he knew or had reason to believe Johnston's article of June 7 contained information obtained on the Barnett and was therefore subject to Navy censorship.
DECLASSIFIED Authority NND 76716
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The proof also seems clear that Maloney in his eagerness for a "scoop", deliberately violated the Navy requirement for censor- ship. The difficulty is that we must go further and prove a violation of the statute. The statute only penalizes wilful disclosure of the contents of a "document", "writing" or "note."
Maloney says he did not know Johnston's information was obtained from any writing or document. Johnston says he did not reveal to Maloney that he had seen or copied any document or writing while on the Barnett.
Maloney can claim that he did not "wilfully" offend because he knew nothing about any document or writing and that defense seems likely to be sustained. I doubt if the notes which Johnston had made would be a document, writing or note as defined in the statute.
The Tribune Corporation cannot be convicted unless either Johnston or Maloney is guilty.
The statute (subsection (d) section 31) should be amended to include the disclosure of "information" relating to national defense whether or not in documentary form.
In view of these doubts as to conviction and the inter- ferences with Navy operations by using many officers as witnesses, it is my judgment that the case should not be prosecuted.
I have reached this conclusion with regret because of the clear demonstration from the record in this case that Maloney's eagerness for "scoops" and "hot" stories is such that if he thinks he can "get away with" it, he will publish any material relating to national defense, in a reckless disregard of any other considera- tion. In this case, to avoid Navy censorship, he concealed the fact that the story came from Johnston and had it written as emanating from Washington and attributed the disclosures as emanating from unnamed officers of Naval Intelligence in Washington, in reckless disregard of the suspicion of "leakage" he was casting on them.
William D. Mitchell
NATIONAL SECURITY ARCHIVE
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