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.
