The Significance of the Ellsberg-Russo Trial by Lawyer Leonard Boudin

 

The Trial Within the Trial

 

   by Leonard B. Boudin, Defense Counsel for Daniel Ellsberg

 

from The Pentagon Papers Case Collection, Ann Fagan Ginger, Editor, Meiklejohn Civil Liberties Institute, Berkeley, California, 1975

 

 

Today, two years after the judgment of dismissal in the Ellsberg case, it is appropriate to reflect upon the contributions made by Dr. Daniel R. Ellsberg, and indeed by his co-defendant Anthony J. Russo, to the processes of government and to the ending of the Vietnamese War. This is particularly appropriate because the passage of time permits quiet reflection as well as the occurrence of events flowing out of Dr. Ellsberg's appearance on the national scene.

 

On June 13, 1971, the New York Times began publishing the Pentagon Papers, a secret Defense Department compilation of the history of our involvement in Vietnam. The person ultimately responsible for that publication was Ellsberg, who had worked on the Pentagon Papers and had possession of a copy of them.  The publication of these papers was an important step in the opposition to the Vietnamese War that, like the War itself, had been escalating with the massive entry of United States troops in 1965. This opposition had been punctuated by the resistance of many middle-class  Americans to the draft, hundreds of criminal prosecutions of these young men, and by the famous Call to Resist, which led to the prosecution of Dr. Benjamin Spock and others in 1968, and to other prosecutions, such as those of the Harrisburg Seven in 1970 and 1971 (United States v Spock (1st Cir 1969) 416 F2d 165; United States v Ahmad (US Dist Ct, MD Pa, #14886)).

 

The publication of the Pentagon Papers, however, was a contribution of a different kind; it consisted not of the public attacks upon the war by such eminent critics as I.F. Stone, Richard Falk, Noam Chomsky, and Howard Zinn — to name only a few — but of an inside picture into government thinking supplemented by government documentation that showed how correct were these critics of the war.

 

It is obviously impossible to isolate a specific event as contributing to the end of the war, particularly since ultimately it was the people in Vietnam, North and South, who held back the massive military forces of the United States. Nevertheless, the educational value of the publication of the Pentagon Papers cannot be minimized as an important factor in this development, and also in the restraint that it exercised over even more dangerous adventurist military and foreign policies of the Nixon administration.

 

The Nixon administration was well aware of the dangers to it and indeed to all administrations, of the exposure of intergovernmental thinking and conduct. One might have thought that President Nixon would have been satisfied by the revelations with respect to his Democratic predecessors;

on the contrary he correctly saw in publication of the Pentagon Papers, so damaging to Presidents Johnson and Kennedy, not only an exposure of the anatomy of the government as it was, but the potential exposure of the government as it might be in the years that followed. The impeachment proceedings revealed, to the nation's astonishment, virtual hysteria on the part of Nixon concerning such exposure and a similar, if lesser, reaction by his associates.

 

Nixon's response led to the first federal government attempt in American history to enjoin the publication of a newspaper. When the government briefly succeeded in securing temporary relief against the New York Times, the Washington Post proceeded to publish the Pentagon Papers; when it was subjected to injunctive relief, other newspapers then took up the torch and published the papers. The result was a decision of the United States Supreme Court on June 30, 1971 holding that "any system of prior restraints and expression comes to this Court bearing a heavy presumption against its constitutional validity" and that "the government had not met that burden" (New York Times Company v United States, 403 US 713 (1971)).

 

There were three dissenters: Chief Justice Burger and Justices Harlan and Blackmun. The dissenting opinion of Mr. Justice Blackmun and the concurring opinion of Mr. Justice White (joined in by Justice Stewart) show the persuasive power that the executive branch still has over the judiciary in the area of so-called national security. Justice White took it upon himself, without any but perfunctory briefing, to discuss the espionage laws in a manner that was not only incorrect, but was clearly prejudicial to the trial of

Ellsberg and Russo then pending in the U.S. District Court for the Central District of California. Justice Blackmun adopted the view of Judge Wilkey in the Washington Post case, after his review of the affidavits in that case, that some of the documents, if published, could lead to “great harm to the nation," i.e., "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate . . . . " Justice Blackmun said that having given "at least some cursory study not only to the affidavits, but the material itself" he concluded that "Judge Wilkey's statements have possible foundation." (403 US 713, at 762) No one who has read the documents themselves and has heard the testimony in the Ellsberg case could possibly come to that conclusion. I mention it, not in criticism of the justice, who is a devoted, well-meaning jurist, but to emphasize the influence of the executive in these matters.

 

The criminal case against Ellsberg and Russo was the first criminal prosecution in American history of American citizens for revealing information concerning the process of government to the public. The first indictment against Dr. Ellsberg charged a violation of the espionage laws (18 USC § 793), of the theft of government property studies (18 USC §641), in that Dr. Ellsberg, while in possession of government documents, failed to deliver them to the person allegedly entitled to have possession of them.  The criminal complaint against Dr. Ellsberg was filed on July 25, 1971, the day before the Supreme Court heard oral argument in the New York Times case; the indictment itself was filed June 28, 1971, at a time when the government clearly could not have presented before the grand jury sufficient evidence to make even a plausible case for an indictment. I suggested then and still believe that the original purpose of the indictment was to

emphasize for the Supreme Court that although it was deciding a civil case (against the New York Times and the Washington Post) it was really dealing with the subject of criminal behavior.

 

Shortly after this indictment was issued, there occurred an event that was to have extraordinary significance in the history of our country, namely, the creation of the "Plumbers" group in the White House and its use in January, 1972 to engage in a Watergate burglary. Only a month earlier that group of refugee Cubans had engaged in a public attack at the Capitol on Dr. Ellsberg, attempting a physical assault on him, William Kunstler, and Judy Collins while shouting " traitor." Just as it was a natural step for the "Plumbers" group to use methods against Dr. Ellsberg that we had used abroad, so the existence of that group made it available for and possibly an inducement to the raid on the Democratic headquarters. That raid, as we know, led to the discovery of the burglars, and to the cover-up that was uncovered, to the criminal prosecutions against the Watergate burglars, the resignation of Attorney General Kleindienst and the appointment of a Special Prosecutor, Archibald Cox, without whom it would have been impossible to secure the confirmation of a new Attorney General, in this case, William Saxbe.

 

As we now look back, the events that followed seemed to have a certain inevitability that they probably did not have: the revelations of the existence of the Oval Office tapes, the subpoena of the President that he resisted, the

Court of Appeals decision in Nixon v Sirica (487 F2d 700 (1973)) and the production of those tapes, under compulsion. The other lines of action were the prosecutions of Ehrlichman, Mitchell, et al., and the trial court subpoenas issued by Special Prosecutor Jaworski that resulted in the Supreme Court decision in United States v Nixon (418 US 323 (1974)).

 

Alongside these events were the Senate Judiciary Committee hearings under Senator Sam Ervin followed by the House Judiciary Committee impeachment proceedings. The result was the resignation of Mr. Nixon, the accession of Mr. Ford, who then pardoned Mr. Nixon, and almost pardoned the other Watergate defendants.

 

The Ellsberg criminal case was deeply intertwined with all of these proceedings. The case itself, if we can consider it in isolation for the moment, was scheduled for argument on motions to dismiss and for related relief for January, 1972, when the grand jury filed a superseding indictment, this time naming Anthony J. Russo as an additional defendant, and two co-conspirators. The nature of the new indictment creates admiration for Howard Hunt's prescience. For in the famous telephone conversation taped by Charles Colson, Hunt suggested to him, not only that the case be tried in public but that the charges be changed to theft and conspiracy. And so it happened — a multi-count indictment charging Russo and Ellsberg with theft, multiple violations of the conspiracy laws, and conspiracy to commit both sets of crimes. It was clear also that Russo had been named a defendant at least partially in retaliation for his insistence upon the right to a grand jury transcript, which was ordered by District Judge Warren Ferguson and which the government refused to accede to.

 

The White House "Plumbers" group that by-passed the Department of Justice, which had jurisdiction over the prosecution of crime, had a very different purpose in the Pentagon Papers case, namely, to try Dr. Ellsberg in the press and to create a picture of a "traitor" that would help not only to meet the opposition to the war, but to defame the New Left and even the Democratic Party. The "Plumbers" consisted of Egil Krogh and David Young under John Ehrlichman's direction, and they in turn were assisted by G. Gordon Liddy and Hunt, the latter with long detective story and CIA connections (with the Bay of Pigs and other Latin-American enterprises).

 

The government then, through this group, began its massive public campaign, which included the following, among other things: First, collaboration with the House Armed Services Committee to secure a public hearing that would begin in low key on the subject of security generally and then move to the attack on Ellsberg; secondly, an attempt publicly through the press to defame Ellsberg and his counsel; thirdly, the famous burglary of Ellsberg's psychiatrist's files, carried out appropriately enough by so-called Cuban refugees, some of whom had been involved in the Bay of Pigs attack.

In this way, there was transplanted to the US domestic scene the kinds of behavior that the CIA and the military, and the civil government itself (beginning with the White House) had often used to in its foreign adventures in Iran, Cuba, Guatemala, and Vietnam, to name only a few places.

 

The trial then began in the spring of 1972 before Judge Matthew Byrne. The trial showed that it was impossible for the government to do anything honest. In fact, there were two trials going on simultaneously. The first trial was that in which Ellsberg and Russo had been indicted and that went on before a jury. The second trial was essentially of the government for misconduct before the judge alone.

 

In the first trial the government sought to prove its theft case by arguing that the government was the owner both of the physical papers comprising the Pentagon Papers and the information contained therein. It was faced with several difficulties here: 1. Ellsberg, it turned out, was the only person with lawful possession of the Pentagon Papers. 2. The removal of those papers temporarily for the purpose of photocopying and immediately returning them did not conform to the traditional criteria of theft and embezzlement of papers. 3. The theft statutes had never been applied to information, either in the enforcement of 18 USC §641 or in light of First Amendment considerations.

 

The government sought to prove the espionage act counts by putting on expert witnesses to the espionage act counts testify that if a North Vietnamese analyst had read the information in the Pentagon Papers, it might have been of value to the North Vietnamese government. The irony, of course, was that these papers were published many years after the event and that there was no evidence of delivery to this hypothetical analyst.

 

The trial judge expressed some question as to whether proof of this kind was sufficient to show a relationship to national defense but admitted it in evidence on the assumption that it would be weighed by the jury in the light of the court's instructions. While the proposed instructions were prepared by the parties, the judge never had the opportunity to submit the matter to the jury for reasons next to be discussed.

 

Just as the government's foreign adventures led to its illegal conduct with respect to Ellsberg and Watergate, so they led to misconduct in the very trial of the Pentagon Papers case. The highlights of this second aspect of the case were these:

 

First, the existence of documents inside the Department of Defense that were exculpatory in that they revealed the Department's view that a number of the Pentagon Papers did not relate to national defense, and the failure to reveal these documents to the Department of Justice;

 

Second, the existence of other exculpatory documents of a similar nature prepared by the Departments of State and Defense that were transmitted to the office of the Attorney General in Washington and then to the Assistant U.S. Attorney in Los Angeles in charge of the case, and the failure to re­ veal them to the court or to defense counsel;

 

Third, the concealment from the defense of the burglary until it came out in the course of the grand jury proceedings in Washington, D.C. (The revelation of these facts to Judge Byrne was resisted by Mr. Nixon, who was finally persuaded that they had to be given to the court; the attempt to do this ex parte failed when the judge turned them over to the defense);

 

Fourth, the existence of wiretapping, first of defense counsel and then of Ellsberg, both of which had been consistently denied by the prosecution; (this led to an early unsuccessful defense appeal to the U.S. Supreme Court, Russo v Byrne, 409 US 1013 (1972), which delayed the trial, thus necessitating the selection of a second jury);

 

Fifth, the two meetings of Ehrlichman with the presiding judge in the Ellsberg case, which were not revealed to the defense counsel by any of the participants.

 

This and other evidence of misconduct led the trial judge to grant the defense motions for a dismissal of the indictment with prejudice against the government. Judge Byrne's opinion is the first federal decision of which we have knowledge that took this summary action against the prosecution. The judge declined to authorize its publication by West Publishing Company although that company did request his permission to do so. Even as an unpublished act, it has been widely distributed and was the basis for the similar decision in the Wounded Knee case of United States v Banks and Means (D Minn) and in at least one state court case.

 

It was, of course, regrettable that the jury never had an opportunity to render its decision on the merits of the government's case against the defendants. It appears, however, from videotape and other interviews with the jurors after the trial that the consensus of opinion was favorable to the defendants on the basis of the evidence. All of the jurors who participated in interviews were of the view that the government had not proved a violation under the Espionage Act; there was at least one juror who had some question with respect to the theft charge that would have been removed by favorable instructions that we anticipated would come from the trial judge. These reactions are all the more impressive because the jury was not aware of the government's misconduct prior to and during the trial.

 

In summary, the Ellsberg-Russo case was significant in a number of respects.

 

First, it was the first prosecution for revealing to the public the facts of governmental life, and the prosecution failed. It posed very squarely problems of secrecy in government and the citizen's right to know. The publication of the Pentagon Papers led to very extensive hearings by the House Committee on Government Operations on the subject of undue government classification of documents, to an order of President Nixon providing for more rapid declassification (whose fruits remain to be seen), and to very important amendments of the Freedom of Information Act. (There still hangs over us the shadow of future criminal prosecutions and the very dangerous provisions of the McClellan Bill, S.1, now pending before the 94th Congress, First Session, which would permit criminal prosecutions "for espionage and related offenses" and would answer some of the problems posed for the government by the defense in the Ellsberg case).

 

Secondly, the prosecution had the effect of solidifying the anti-Vietnamese War movement in the United States in several ways.  It revealed to the public, more than the casual reading of the Pentagon Papers itself could have done, the facts with respect to the war. It brought together as defense witnesses two disparate groups, the Kennedy administration men, such as Theodore Sorensen, McGeorge Bundy, Arthur Schlesinger, et al., and the long-time scholarly anti-war group, such as Falk, Chomsky, Zinn, and Thomas Hayden, as well as a third group of expert witnesses who fell into a more neutral category. (One need not speculate on the motivations of these former government officials. Their testimony might have been the result of their recognition of the coming end of the war, a desire to secure a better place in history, an accommodation of the growing anti-war sentiment and the realization that the Nixon administration was engaging in so drastic an interference with the right to know and the democratic process that they were now prepared to rebel against it.)

 

The prosecution dovetailed with the Watergate investigations and exposed and illuminated governmental misconduct that ultimately led to impeachment proceedings with the forced resignation of Mr. Nixon and to the revelations of misconduct by the CIA and the FBI, most recently noted, although inadequately, in the Rockefeller Commission's report.

 

It is very difficult, as I indicated above, to assess the effect of a single person's activity. It is even more difficult when one is actively engaged in the trauma of a trial, with the pressures of litigation and the clashes of personality that occur in any trial, heightened in a political conspiracy trial (in contrast to the relatively simpler case of conspiracy in the organized crime area). Nevertheless, this brief recital indicates very clearly to me the extraordinary contribution made by Dr. Daniel R. Ellsberg to the public welfare.

 

 

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