Nixon's Legal Battle with the NY Times and Washington Post

On Saturday afternoon I saw the outstanding new Steven Spielberg movie, "The Post." I highly recommend it, even though there is one important historical omission in the film.

The movie tells the story of the Washington Post's famous 1971 decision to publish the Pentagon Papers, a top secret study of the Vietnam War that exposed the government's long history of lying to the country about the stalemated nature of the conflict. Daniel Ellsberg, a former Marine officer and Rand Corporation analyst, leaked the classified study to the New York Times and later to the Post. The Times was the first to publish, setting in motion a dramatic showdown with President Richard Nixon.

The acting is terrific, particularly Meryl Streep as the Post's publisher Katherine Graham, the hero of the story. Against the advice of her lawyers, but with the enthusiastic support of her editors and reporters, Graham decided to publish excerpts of the classified study. The decision was legally and financially risky because, just two days earlier, the Nixon Administration had succeeded in securing a court order to enjoin the Times from continuing to publish its bombshell stories on the Pentagon Papers. Moreover, less than 24 hours after the Washington Post began to run its own Pentagon Papers stories, the Nixon Administration secured a temporary restraining order against the Post. 

In the end, Graham was vindicated both by history and the Supreme Court. Twelve days after Graham's decision to publish, the Supreme Court overturned the injunctions, ruling 6-3 in favor of the Times and Post.

But the movie omits one important detail. In the film, we hear the actual Oval Office audiotapes in which Nixon expressed his rage at the Times and Post. But what we don't hear is the full context of Nixon's reaction to the Pentagon Papers' release. Ellsberg's documents included damaging revelations about the Vietnam secrets of the Kennedy and Johnson administrations, but the Pentagon Papers study ended in 1967, two years before the Nixon Administration began. Accordingly, there was nothing for Nixon to fear from the study's release. 

Consequently, Nixon did not even bother to read the Times story when it first broke, until General Al Haig worriedly claimed that the leak undermined national security. Later that day Nixon still saw the leak as politically advantageous to him, since it only harmed the reputations of Kennedy and Johnson. Nixon planned to fire Pentagon officials for failing to prevent the leak, but he did not originally plan to wage a full-scale legal war against the Times. 

Nixon's initial view of the matter was confirmed during a meeting with Henry Kissinger, the National Security Adviser. As the Oval Office audiotapes reveal, Nixon noted with relief: "Of course, it’s . . . it’s unconscionable on the part of the people that leaked it. Fortunately, it didn’t come out on our administration. . . . according to Haig, it’s all relates to the two previous administrations. Is that correct?"   

Kissinger agreed, observing: "In public opinion, it actually, if anything, will help us a little bit, because this is a gold mine of showing how the previous administration got us in there. . . . Oh, well, it just shows massive mismanagement of how we got there. And it pins it all on Kennedy and Johnson."

But the next day, in a momentous development, Attorney General John Mitchell recommended that the White House pursue an injunction against the Times. Before committing himself, Nixon asked the Attorney General point blank: "Have you—has the government ever done this to a paper before?"  

Mitchell, wrongly, assured Nixon: "Yes, we've done this before."  

After more discussion with Mitchell, Nixon made his fateful decision: "Well, look, look, as far as the Times is concerned, hell, they're our enemies. I think we just ought to do it."

The rest, as they say, is history. Events would soon demonstrate just how misguided Mitchell's advice to Nixon was. As Justice Brennan noted in his concurring opinion in New York Times Co. v. United States, "[N]ever before has the United States sought to enjoin a newspaper from publishing information in its possession."

Nixon's decision to rely on Mitchell's bad legal advice had grave consequences for the administration. The humiliating Supreme Court defeat further inflamed Nixon's fear and loathing of the Washington political, legal, and journalistic establishment, a paranoia that would increasingly lead the president to embrace criminal measures to strike at his critics.

And the Pentagon Papers case wouldn't be the last time Mitchell would enmesh the Nixon White House in a historic debacle. Mitchell would later play a key role in the Watergate scandal, and Nixon's effort to cover up Mitchell's connection to G. Gordon Liddy would help set in motion the events that ultimately destroyed Nixon's presidency.  

For those interested, the University of Virginia's Miller Center on the Presidency website houses a gold mine of information, including the Nixon Pentagon Papers transcripts and audiotapes. 

 
 

Comments

[anon]

Amazing that today, the leaking of truthful information (e.g., emails that showed the primary was fixed) is demonized by Democrats, as are the those who leaked such information (smeared as "Russians," evoking McCarthy but without the added charm of the "communist" label, leaving only the ethnic slurring). Revelations about government corruption are labeled an "attack on our institutions" by Democrats.

The roles have reversed, indeed. Seems that heroes in the media can only be those who are attacking Republicans, because, as we all know, Democrats fight for truth and justice and Republicans are evil. That means stifling free speech, by active means or by failing to report the truth of leaked information when it hurts "the Party."

[Deep State Special Legal Counsel]

If Nixon was president today, he wouldn't need to burglarize the DNC headquarters. A distant third party could just hack the DNC's emails and it could somehow end up in his lap. He would be one of our greatest presidents... He could just explain away his anti-sematism as "locker room talk" or bar talk.