Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles

7/29/2019 Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles

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J A M E S C.G O O D A L E

F I G H T I N G F O R

T H E P R E S ST H E I N S I D E S T O R Y O F T H E

P E N TA G O N PA P E R S

A N D O T H E R B A T T L E S



“THIS IS A STORY WORTHY OF

JOHN GRISHAM, EXCEPT THIS ONE

ACTUALLY HAPPENED; IT IS FACT,

NOT FICTION—AND IT’S STILL

UNFOLDING.” —Dan Rather

“A LEGAL THRILLER.

A VERY IMPORTANT BOOK

. . . BO TH ENL IGH TEN ING AND

ENTERTAINING.” —Harry Evans

“EXCI TING AND EASY TO REA D . . .

THE COMPARISON OF OBAMA

TO NIXON IS CHILLING.”

—Gay Talese

“THE MOST DETAILED AND

HONEST INSIDE ACCOUNT YET

OF THE FIGHT TO PUBLISH THE

PENTAGON PAPERS BY THE

UNCOMPROMISING LAWYER IN

THE MIDDLE OF IT. THIS

HISTORY COULD NOT COME AT A

MORE IMPORTANT TIME.”

—Seymour M. Hersh

ON JUNE 13, 1971, the New York Times

published the first of the Pentagon Papers, a

series of top-secret Defense Department

documents exposing U.S. government policies

on the unpopular war in Vietnam.

James C. Goodale, then the young chief

counsel for the Times, was there leading the

legal team every step of the way. This is

his compelling, never-before-told story of

what happened behind closed doors—the

strategies, the decisions, the larger-than-life

characters from the worlds of law, politics,

journalism, and the mi litary.

Besides recounting the story behind

the Pentagon Papers, Goodale notes Barack

Obama has threatened to pursue Julian

Assange and WikiLeaks, just as Nixon went

after Neil Sheehan and the New York Times.

Goodale warns that this threat, if effected,

may criminalize newsgathering.

J A M E S G O O D A L E

was vice chairman

and general counsel

of the New York

Times and a partner at

Debevoise & Plimpton

LLP. He has taught at

Yale, NYU and Fordham Law Schools. His

articles have been published in numerous

publications, from the New York Times to

The Stanford Law Review.

C U N Y J O U R N A L I S M P R E S S I S T H E A C A D E M I C I M P R I N T

O F T H E C U N Y G R A D U A T E S C H O O L O F J O U R N A L I S M

P A R T O F T H E C I T Y U N I V E R S I T Y O F N E W Y O R K

W W W . P R E S S . J O U R N A L I S M . C U N Y . E D U

Au thor photog ra ph © Donald MacLeod

Cover photograph © U. S. National Archivesand Records Administrat ion; Vietnam, 1966

Cover design by Bathcat Ltd.

“SUB POENA ALL T HESE BAS TARDS AND BRIN G T HE CASE . . .

DESTROY THE TIMES .” —Richard M. Nixon



F I G H T IN G F O R

T HE P R E S S





F I G H T IN G F O R

T HE P R E S STHE INS IDE STO RY OF THE

P E N TA G O N P A P E R S

A N D O T H E R B A T T L E S

J A M E S C.GOODALE



© 2013 James C. Goodale

All rights reserved. No part of this book may be reproduced or transmitted in any formor by any means, electronic or mechanical, including photocopy, recording, or anyinformation storage retrieval system, without permission in writing from the publisher,except brief passages for review purposes.

Visit our website at press.journalism.cuny.eduFirst printing 2013

Cataloging-in-Publication data is available from the Library of Congress.A catalog record for this book is available from the British Library.

ISBN 978-1-939293-08-4 paperbackISBN 978-1-939293-12-1 hardcoverISBN 978-1-939293-09-1 e-book

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Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

FIRST AMENDMENT, UNITED STATES CONSTITUTION





To my wife Toni, Ashley, C.J., Tim, Clay and Ricki and the nextgeneration: Will, Lizey, Paloma and Celeste.





TABLE OF CONTENTS

THE OTHER STORY THAT SUNDAY MORNING 1

NIXON’S WAR AGAINST THE PRESS 7

NIXON FIRES A SALVO 15

WHICH FIRST AMENDMENT? 21

DRESS REHEARSAL FOR THE PENTAGON PAPERS 29

HAS CLASSIFIED INFORMATION BEEN PUBLISHED BEFORE? 35

CAN CLASSIFIED INFORMATION BE PUBLISHED LEGALLY? 41

A STRATEGY TO PUBLISH 49

A FIRST LOOK AT THE PENTAGON PAPERS 53

LORD, DAY & LORD SINKS THE SHIP 59

WE WILL PUBLISH AFTER ALL 65

NIXON THREATENS: LORD, DAY & LORD QUITS 71

NIXON STOPS THE PRESSES 79

NIXON HAS THE PRESS WHERE HE WANTS IT 85

NIXON’S LAWYERS WANT OUR SOURCE 93

THE REPUBLIC STILL STANDS 99

WHAT SECRETS DOES THE GOVERNMENT HAVE? 105

ALEX MAKES A CONVINCING CASE 111

THE POST SURPRISES NIXON BY PUBLISHING 115

GURFEIN SETS THE TIMES FREE 119

GESELL SAYS “ABSOLUTELY NO” TO NIXON 123

SEYMOUR CUTS-AND-PASTES THE POST’S PAPERS 131

CHAPTER I |

CHAPTER II |

CHAPTER III |

CHAPTER IV |

CHAPTER V |

CHAPTER VI |

CHAPTER VII |

CHAPTER VII I |

CHAPTER IX |

CHAPTER X |

CHAPTER XI |

CHAPTER XII |

CHAPTER XII I |

CHAPTER XIV |

CHAPTER XV |

CHAPTER XVI |

CHAPTER XVII |

CHAPTER XVII I |

CHAPTER XIX |

CHAPTER XX |

CHAPTER XXI |

CHAPTER XXII |

ACKNOWLEDGMENTS XI

PREFACE XII



X | J A M E S C . G O O D A L E

GRISWOLD ENTERS THE FRAY 139

ALEX BICKEL QUITS 143

A RUSH TO THE SUPREME COURT 149

ALEX TO THE RESCUE 155

THE DAY THE PIN DROPPED 159

THE HISTORIC VICTORY 167

MITCHELL LICKS HIS CHOPS 173

NIXON’S REVENGE 181

THE POWER OF CONTEMPT 187

BUSH’S WAR AGAINST THE PRESS 195

IS OBAMA ANY BETTER? 203

WILL OBAMA SUCCEED WHERE NIXON FAILED? 211

A CASE FOR THE AGES 217

END NOTES 223

SELECTED BIBLIOGRAPHY 251

INDEX 257

CHAPTER XXII I |

CHAPTER XXIV |

CHAPTER XXV |

CHAPTER XXVI |

CHAPTER XXVII |

CHAPTER XXVII I |

CHAPTER XXIX |

CHAPTER XXX |

CHAPTER XXXI |

CHAPTER XXXII |

CHAPTER XXXII I |

CHAPTER XXXIV |

CHAPTER XXXV |



ACKNOWLEDGMENTS

I want to thank Stephen C. Shepard, dean of CUNY Journalism School, and Tim Harper, publisher of CUNY Journalism Press, for publishing this book, and an

equal thanks to John Oakes, co-publisher of OR Books, for agreeing to distributeit. More particularly, I want to thank John for serving as my understanding editor.My thanks to Victor Navasky, who urged me to write this book; if he had not,

there would not have been a book. My thanks also to Kofi Annan, Ben Bradlee,Richard Cohen, Clifton Daniel (posthumously), J immy Finkelstein, Kris Fischer,Max Frankel, Pete Gurney, Warren Hoge, Victor Kovner, Tony Lewis, TomLipsomb, Shirley Lord, Peter Matthiessen, Sidney Offit, Dan Rather, Bob Sack,

John Sicher, Bob Silvers, Paul Steiger, Mike Wallace (posthumously), and TomWinship (posthumously), all of whom have supported my writing, and to myfourth-grade teacher Jane Woodman (Chapin) and her husband E. Barton Chapin

(posthumously) for teaching me how to write.A special thanks to those who read the book before publication and gave me their

extremely helpful comments: Clay Akiwenzie, Erik Bierbauer, Jeffrey Cunard,Harry Evans, Fred Gardner, Lynn Goldberg, Ashley Goodale, Tim Goodale, ToniGoodale, Al Hruska, Bruce Keller, C.J . Muse, Paul Steiger, and J im Zirin.

I also wish to thank Trevor Timm, now a lawyer with the Electronic FrontierFoundation, who served as my invaluable research assistant for two years, andspecial thanks to my agent Ike Williams.

Finally, my thanks to Devi K. Shah who assisted me in every aspect of the book.She made suggestions on every chapter, found material I had long forgotten, andwas a major force in organizing all the publishing.



PREFACE

I have been saving the inside story of the Pentagon Papers for the right time. That time has come. The WikiLeaks matter has made the Pentagon Papers case

more relevant than ever before.When the New York Times published the Pentagon Papers, it was accused of treason, damaging national security, and violating the Espionage Act. All theseclaims are being made against WikiLeaks and other whistleblowers and leakerstoday. The First Amendment was under attack then, and it is under attack today.

The principles underlying the great First Amendment victory the Times won forthe press in the case of the Pentagon Papers should protect reporters and the newsmedia today.

But to understand what the Pentagon Papers were all about, it is important to

know what actually happened inside that story and inside theNew York Times.

That case came in the middle of Nixon’s war against the press—a war that beganbefore Nixon was elected and continued through his presidency. His vice presidentcalled the establishment press “nattering nabobs of negativism.” His attorneygeneral tried to jail New York Timesreporter Earl Caldwell. And that was before thePentagon Papers. But the pressure on the press did not end when Nixon resigned.Reporters went to jail for decades after. And succeeding presidents have tried to usethe Espionage Act to stifle free expression.

The Pentagon Papers case was especially sensitive because it came in themiddle of the Vietnam War. On its front page of June 13, 1971, theNew York Times

published a series of Defense Department documents and other information that was

classified top secret, which outlined U.S. government policy on the war in Vietnam. These documents (the “Pentagon Papers”) had been leaked by Daniel Ellsberg,a researcher who had access to the Pentagon Papers at the Rand Corporation, athink tank serving as a consultant to the Defense Department. Ellsberg passed thedocuments to reporters at the Times.

There followed a period of intense debate, carried out in the board rooms of the newspaper, the offices of its legal counsel, and ultimately the law courts of thenation. The questions were clearly defined: whether publishing these documents



F I G H T I N G F O R T H E P R E S S | X I I I

would be in the country’s interest, and whether their publication was protectedby the First Amendment. On June 30, 1971, the Supreme Court decided the First

Amendment protected their publication. This decision was the first of its kind bythe Supreme Court, and put new weight behind freedom of the press.

This is the story of those weeks in June when the press’s freedom of speech

came under its most sustained assault since the Second World War. It is also thestory of efforts by the government to silence the press since that time, and theresponse of the press to those efforts.

Beyond the inside story of the Pentagon Papers, this book will look at thefreedom of the press today. In many respects, President Obama is no better thanNixon. Obama has used the Espionage Act to indict more leakers than any otherpresident in the history of this country. His Justice Department is threatening toindict J ulian Assange. Obama is ignoring the Pentagon Papers case at his peril—and the nation’s peril. It is a case for the ages and matters as much, or more, today.





CHAPTER I

T H E O T H E R S T O R Y T H A T S U N D A Y M O R N I N G

On Sunday June 13, 1971, a story was published on the front page of theNew

York Times under a three-column headline: “Vietnam Archive: Study Traces 3

Decades of Growing U.S. Involvement.”1

I thought it was the most boring headlineI had ever read; no one would read this article.It was the first installment of the series of articles that became known as the

Pentagon Papers. When we published it, my colleagues at the Times and I hadbeen expecting all hell to break loose. It was the first article in a planned seriesbased on leaked Defense Department documents showing decades of deceptionand duplicity: how the American people had been misled about our involvement inVietnam. But with this boring headline, I wondered if all our expectations of a hugeexplosion following publication would be wrong. All that day, I kept waiting for theother shoe to drop, but it didn’t.

Indeed, the nation’s press on that Sunday was more interested in Tricia Nixon’swedding the previous evening. I had watched excerpts of it on TV. I noted withinterest some of the high-placed dignitaries who were there, and wondered howthey would react to the bombshell story right there on the front page the nextmorning, next to coverage of the wedding.

I took a radio with me out to my dock on the lake next to my house and turnedit to the news stations to see what sort of commotion the publication had created.None to speak of. The news broadcasts were all about Tricia’s wedding, with aword or two about the Times’ publication of a Vietnam archive.

The White House had no reaction. President Richard Nixon had not even readthe article. Attorney General John Mitchell hadn’t read it either. The headline,

apparently, had put everyone off.2 General Alexander Haig, the president’s deputy national security adviser, had

read it, however. He reached Nixon in the afternoon to discuss the progress of the Vietnam War. Nixon asked him, “Is there anything else going on in the worldtoday?” to which Haig replied, “Yes sir—very significant—this, uh, goddamnNew York Timesexposé of the most highly classified documents of the war.”



2 | J A M E S C . G O O D A L E

In his phone call with Nixon, Haig called it, “a devastating…security breach of the greatest magnitude of anything I’ve ever seen.”3Nixon was much more worried

about the leak than the story. He suggested an easy solution: he would just startfiring people at the Department of Defense—whoever could be held responsible.4

Secretary of State William Rogers was next to call Nixon. Their conversation

was mostly about the coverage of Tricia Nixon’s wedding.5Admitting that he hadn’tread the story yet—wedding coverage was a higher priority—Nixon brushed itoff as a story about the former administration of President Lyndon B. Johnson,not his. A few minutes later, Henry Kissinger, Nixon’s national security advisor,called the White House. Perhaps Nixon had read the story by this time. He agreedwith Kissinger that printing the Pentagon Papers was an unconscionable thingfor a newspaper to do. “It’s treasonable, there’s no question—it’s actionable, I’mabsolutely certain that this violates all sorts of security laws,” Kissinger said.6 Hetold Nixon not to ignore the story: “It shows you are a weakling, Mr. President.”7

Nixon told Kissinger to call Attorney General John Mitchell to discuss what to do.I was the chief counsel for theNew York Times. As the newspaper’s top lawyerfor all its business, including journalism, I had been closely involved in our internaldiscussions with editors, reporters, and the publisher about whether we could orshould publish the Pentagon Papers. I had told the Timesthat in my view there wasa high probability that Secretary of Defense Melvin Laird would call for Mitchellor Nixon to take action against the Times.

But on Sunday, Laird called neither Mitchell nor Nixon. He did, however,prepare for a TV appearance onMeet the Press, assuming the program would beentirely devoted to the Pentagon Papers. He did not receive one question on the

story. It may have been because the producers of that show hadn’t read the story,either. Laird did, however, call Mitchell the next day. That call set off a chain of events that led to one of the most important Supreme Court cases ever.

Let’s go back to the beginning. My first inkling that there was trouble brewinghad come several weeks earlier, on March 13, 1971, at the annual Gridiron Clubdinner. There was hardly a more important dinner for politicians and journalists inWashington, D.C. than the Gridiron Club. The greats of the political and journalisticworld attended in tails. The President of the United States was usually the mainspeaker, expected to create hilarity at both his own and the media’s expense.

On this particular evening, however, Nixon was with his pal Bebe Rebozo inFlorida. Vice President Spiro Agnew stood in for him. Most of the members of Nixon’s cabinet were there, as well as governors, senators, publishers, Supreme

Court justices, and the like. I was thirty-seven, one of the younger men in attendance,and one of the few without a national reputation in government or media. I was therebecause I was vice president and general counsel of the New York Times Co. It wasan impressive title, but among the glitterati at the Gridiron, it counted for little.

There were only limited invitations to the event held at the Statler Hilton Hotel. The Gridiron had only fifty members then; all were male. My wife, Toni, had



F I G H T I N G F O R T H E P R E S S | 3

come with me to Washington, but not to the dinner. Women were barred. In fact,thirty-five women, including the Washington Post writer Sally Quinn, picketed

the dinner.8 Limousines for Spiro Agnew, Henry Kissinger, Chief Justice WarrenBurger, and Teddy Kennedy rolled through the picket line.9

With limited invitations, the Timesparsed them out to those it wished to impress.

Sharing this prized invitation in-house was unusual, so I was surprised when I wasinvited by Arthur Ochs “Punch” Sulzberger, the publisher of the Times.

I had two theories about why I was there. First, I was being thanked for severalsuccessful years. I had been leading the press’s fight against Nixon’s attempts tosubpoena reporters and it had been my idea to take the New York Times Co. publicwhile retaining the control of the Times in the Sulzberger family.

I had conceived of a corporate structure of Class A and Class B voting stock,which many media companies subsequently copied word-for-word. I had also leda large acquisition of Cowles Communications designed to solve the company’s

financial problems.10

With a huge asset base, the New York Times Co. couldnegotiate with the unions and protect the financial integrity of the Timesnewspaper. This led to the prosperity the overall company and the newspaper enjoyed in the1980s and 90s.

The second theory I had for my invitation was that Punch Sulzberger had decidedto introduce me to the greats of the world. That was, of course, pure fantasy. WhileI had the respect of journalists and others in New York, I was not part of the New

York power scene and certainly didn’t know any congressmen or senators. More tothe point, Punch had no interest in making me part of that scene.

I was a young family man with a three-year-old son, Timmy, and a twenty-nine-

year-old wife about to give birth to my second child. In fact, while I dealt from time totime with the famousNew York Timesreporters in Washington such as James “Scotty”Reston, Tom Wicker, and Max Frankel, those contacts were few and far between.

I was more friendly with the news people in New York: Abraham “Abe”Rosenthal, the volatile editor of the Times, Arthur “Artie” Gelb, the managingeditor, Seymour “Top” Topping, the foreign editor and Eugene “Gene” Roberts,the national editor.

It turned out that I was not in Washington for any of the reasons I imagined. Iwas there to learn a secret that would change my life, and set in motion a chain of events that would ultimately contribute to the resignation of the President of theUnited States.

I did not know that as I stepped into Punch’s limo to go to the dinner. I was

uncomfortable in my first pair of tails. I had checked them out with Punch and hiswife Carol in their hotel room, and Carol had given me a barely passing grade.Punch’s limo stopped short of the picket line and we walked across and entered themain ballroom for my first experience at a high celebrity event.

The place buzzed with importance. Punch was immediately mobbed by senatorsand such. I knew I had to navigate on my own or end up talking to the bartender.




Max Frankel, the Times’ star foreign reporter, had me at his table, alongside RogerMudd, the CBS anchorman. Amid the banter and the dining, I really thought I had

hit the big time. Before dinner, Max Frankel said, as an aside, “Have you heardabout the classified documents we have on Vietnam?” I said I hadn’t, placing littlesignificance on his remark. He did not elaborate, and changed the subject.

Agnew rose to speak. He had for the last three years been attacking the press forNixon, calling them “nattering nabobs of negativism” and worse. He was introducedas “that ferocious, fulminating fireball of the far-flung fairways.”11 Agnew sang asong with the line: “Politics is a rough game—when effete snobs rule the airwaves,someone had to set things right.”12 The guests roared. After the dinner, Punch tookme to a small party in a room in the Willard Hotel, only about fifty people. The dooropened, and there were Senators Ted Kennedy and Hubert Humphrey.

Suppressing my awe, I turned from listening to one conversation to bump intoSupreme Court Justice Potter Stewart. What in the world was I going to talk to him

about? He was standing there with his Yale classmate, Downey Orrick, a partner of the well-known firm in San Francisco that bore his name.With a few pops under their belts, they thought it was great fun to encounter a

young lawyer who was vice president and general counsel of the New York Times. They wanted to know how in the world anyone so young had got such a plum. They kidded me at great length about my good fortune. “You must be related tothe Sulzbergers,” and so on. Potter Stewart then started talking about theSullivan decision, from the famous Times libel case that went to the Supreme Court. InSullivan, the Court applied the First Amendment in a libel case for the first time.13 I told him that I had worked on that case at Lord, Day & Lord, the outside counsel

for theNew York Times.L. B. Sullivan was a County Commissioner in Alabama during the civil

rights movement. He had sued the Times in Alabama for an ad that untruthfullyaccused him of mistreating civil rights demonstrators. The Alabama court entereda $500,000 verdict against the Times. There were other similar cases pendingwhich, if successful, would have put the Timesout of business. The U.S. Supremeoverturned the verdict, creating a new rule for libel under the First Amendment.

The other cases disappeared. The Timeswas saved.14 Stewart smiled at me and said, “We won that one for you.” I thought to myself,

“Gee, is this what goes on in Washington? Supreme Court justices say which sideof the press they’re on at cocktail parties?” But I said nothing, smiled and changedthe subject.

The next day, I went with Punch Sulzberger and our wives for lunch at MaxFrankel’s home. I discovered that lunches and dinners are the staple of Washingtonlife. Once, when I asked Max how he rated a particular Washington denizen, hesaid disparagingly, “Oh, he goes to all the wrong dinner parties.” For this lunch,Max had invited Israeli Ambassador Yitzhak Rabin to talk with Punch.




Somehow Rabin got separated from Punch and ended up eating by himself inFrankel’s living room. Meanwhile, Punch, Carol, Max and I were eating out on

Max’s terrace enjoying the early spring sunshine. Our terrace luncheon draggedon. By the time we walked back into the living room, Rabin had departed in a huff,insulted by not being invited to the terrace. As I said goodbye to Max, it became

clear why I had been invited to the Gridiron dinner. Max and his colleagues had atranche of classified documents. I was being let in on a secret, and I was to keep itsecret. I didn’t yet know exactly what the documents were, but I was supposed tofigure out how to publish them.





CHAPTER I I

N I X O N ’ S W A R A G A I N S T T H E P R E S S

While I may have been naïve about how the social world of Washington

worked in terms of lunches and dinner parties, I was not a naïf about Washington

politics and the relationship between the press and the government. The New York Timeshad been fighting Nixon since the 1968 election. Nixon had gone onnational television to threaten the Timeswith a libel suit for an editorial entitled“Mr. Agnew’s Fitness.” This marked the beginning of Nixon’s war against thepress which continued until he resigned. Nixon was the first president in memoryto use or threaten to use the legal process to get his way with the press. It isone thing to engage in a verbal attack against the press, another to convert thatanimosity to legal action.

The Pentagon Papers case cannot be understood without fully understanding itscontext. And its context was that Nixon, a lawyer, looked to the courts for redress.

He accompanied this approach with withering attacks on the press in an attempt tocreate a favorable climate for his administration.

In the Watergate tapes, Nixon bragged to his national security advisor HenryKissinger several times that he brought down Alger Hiss by attacking him in thepress.1 I had followed Nixon carefully ever since that case. Hiss was a diplomat and,once, the Secretary General of the United Nations Charter Conference, who wasaccused of being a communist by Whittaker Chambers, a renounced communistAmerican writer and defected Soviet spy. Chambers had shared this informationwith Nixon’s House on Un-American Activities Committee when Nixon was acongressman.2

When on December 2, 1948, Chambers produced microfilm of State Department

documents given to him by Hiss, which Chambers stored in a pumpkin, Nixoncrowed that the “Pumpkin Papers” showed the perfidy of liberal democrats. Hiss,having denied knowing Chambers, was indicted for perjury. Hiss won the firstperjury trial with a hung jury.

Hiss was tried again, and in the second case he was convicted of perjury and sentto prison. As a teenager I followed the Hiss case as carefully as an average kid mightfollow his favorite baseball team. I knew all the players and all the events. In the




liberal circles of Cambridge, Massachusetts, where I grew up, Nixon and Chamberswere viewed as villains. They were out to destroy the liberal establishment.

My mother, a professor’s daughter, had gone to Europe on a student trip with“Algie” Hiss. Family friend James Garfield, grandson and namesake of the latepresident and a partner in the law firm of Choate Hall & Stewart, knew Hiss

when he worked for that law firm.3 No one in Cambridge could believe that Hisshad been a spy. Almost everyone seemed to believe that someone else, like Hiss’wife Priscilla, must have copied the government’s papers, and that Hiss wasprotecting her.

For whatever it’s worth, I thought Hiss was guilty because the Pumpkin Paperswere typed on a Woodstock typewriter that had once belonged to Priscilla Hiss.Strangely enough, when I arrived at Debevoise & Plimpton, the firm that hadhandled the first trial, I learned something interesting: Hiss’ own lawyer, EdwardMcLean, had sought the typewriter on the theory that it would exonerate Hiss.

McLean thought he would find that Hiss did not own the typewriter.4

Nixon seemed to be right in this particular case, but I developed an extraordinaryloathing for him. He symbolized for me everything that was wrong with theRepublican Party. He was extremely threatening to what I thought was the best partof America—the liberal Eastern establishment.

His campaigns against Congressman Jerry Voorhees and CongresswomanHelen Gahagan Douglas were liberal nightmares. Nixon was accused of usingevery dirty trick imaginable against Voorhees and slandered Douglas with guttertactics. For example, Nixon pioneered an early version of “robo-calls” during hiscampaigns in 1946 against Voorhees.5 In these calls, an anonymous person would

call a household, say “we just wanted to inform you that the congressman whorepresents your district, Jerry Voorhees, is a communist,” and then hang up. In hiscampaign against Douglas, Nixon insinuated she was a communist by referring toher as “the Pink Lady” and cited her supposedly communist-leaning voting recordin Congress.6

I was particularly sensitive to the attacks of right-wing Republicans suchas Nixon and Senator Joseph McCarthy. A close friend of my family, GeorgeFaxon, who ran a camp I attended, was driven out of his teaching job becausehe refused to say under oath whether he had been a member of the CommunistParty. Additionally, my friend from grade school, Louisa Edsall Kamin, and herhusband, Leon, were forced to flee to Canada by Senator Joseph McCarthy for thesame reason. Kamin was a Harvard researcher who also refused to say whether he

had been a communist. He later became chair of the Department of Psychology atPrinceton University.

I am not a radical liberal and never had been, but my attitude to Nixon informedevery move when I advised the Times in the Pentagon Papers case. I thought Iknew what he would do, how far he would go, what his legal strategies would be.It turned out I was right.7




On October 26, 1968, a week before Nixon won the Presidency in a landslide,theNew York Times ran an editorial accusing Nixon’s running mate Spiro Agnew

of various misdeeds. The Timessaid Agnew was party to questionable land deals.It charged that his position as a director of Maryland Bank while Governor of Maryland involved “clearly repeated conflicts of interest.” The editorial concluded:

“In his obtuse behavior as a public official in Maryland as well as in his egregiouscomments this campaign, Mr. Agnew has demonstrated that he is not fit to standone step away from the Presidency.”8

Nixon himself responded to the editorial the next day on CBS’ Face the Nation. The editorial was “the lowest kind of gutter politics that a great newspaper couldengage in,” he said, and “a retraction will be demanded at the Times legallytomorrow.” Yet Nixon refused to go into detail about which, or any, of the allegationshe thought were incorrect, stating “I am not going to do anything that might injureMr. Agnew’s case with regard to the Times.”9

The next day, Agnew’s campaign manager, George W. White, Jr., calledHarding Bancroft, the executive vice president of theNew York Times, demandinga meeting about the editorial. Bancroft, who was then running theNew York Times and for all practical purposes its CEO, asked me to attend the meeting. White wasa well-fed, red-faced lawyer from Maryland who was very angry and blustery, andnothing like the distinguished Wall Street lawyers who then controlled the New

York City legal establishment. Bancroft was a gentlemanly, waspy ex-diplomatwho had hired me with the thought that I would succeed him as the de facto CEOof the Times.

White said Agnew had no conflict of interest and was not involved in

questionable land deals. Later it turned out that Agnew was indicted for takingbribes and had to resign as vice president. White wanted a retraction and if he didnot get it, Agnew would take appropriate action. He said that Agnew had also senta lawyer for the Nixon-Agnew campaign committee, Everett I. Willis, a partner atDewey Ballantine, to meet later that day with Louis Loeb of Lord, Day & Lord,who had been the Times’ outside general counsel for years.

There was no question in my mind the Times had not libeled Agnew. Thestatement in the editorial was merely theNew York Times’ opinion. One generallycannot sue a newspaper or anyone else for an opinion. Furthermore, the SupremeCourt in its great Sullivancase, which I had discussed with Potter Stewart at theGridiron Club, made it almost impossible for someone like Agnew to win a libelcase against a newspaper. He would have to show the Timeswas acting recklessly,

that is, entertaining serious doubt about the facts of the editorial before it published. The Times’ editorial board did not doubt it was correct.

This didn’t mean, of course, that Nixon and Agnew wouldn’t sue, and if theydid sue the Times, Louis Loeb and Lord, Day & Lord, would have to defendit. I had started at Lord, Day & Lord in 1959, a year after graduating from theUniversity of Chicago Law School following a stint in the U.S. Army, where



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I served in intelligence. I was extraordinarily grateful to Lord, Day & Lord forhiring me as a Chicago graduate and “sending” me up to the New York Times,

its client. Strange as it seems today, the University of Chicago Law School didnot then have a national reputation. It has one now since, among other reasons,President Obama and Justices Scalia and Kagan were members of its faculty. But

then, there were only a handful of graduates in New York City. When I interviewedwith New York law firms, the comment frequently was, “I didn’t know they had alaw school out there.”

I was on a fast track at Lord, Day & Lord, although I didn’t realize it at thetime. After only two years I had my own clients, enormous responsibility, and therespect of those with whom I worked. Ferdinand Eberstadt, a client who had hisown investment firm, had taken a shine to me and had told Lord, Day & Lord I was“the hottest young lawyer on Wall Street.”10

Loeb’s office called me to say Willis had requested a meeting with him at two

o’clock. I said I would meet with them to discuss the next steps to take. Loeb hadbeen outside counsel for the Times for decades. By the time I got to his office hesaid, “You don’t have to tell me very much about that meeting this morning, I amreading about it right now in the newspaper.” He pulled out the front page of theNew York Post, which covered the story.

It suddenly struck me that I was now in a different league. I could meet withFerd Eberstadt ninety-two times and no one would know about it except a few atLord, Day & Lord. But in my capacity as chief counsel at the New York Times,when I had a meeting near Election Day, it was plastered all over the paper with myname mentioned. This was my first experience with high publicity threats against

the press. I would be less than candid if I did not say I was taken aback.I went over my analysis of Nixon and Agnew’s threat with Loeb and we agreed

it was not libelous, and told Willis that. It seemed to me to be a political ploy. Nixonand Mitchell were making unsupported allegations. These allegations were similarto the ones Nixon made against Voorhees and Douglas and the same as Nixonwould later make against the Timesduring the Pentagon Papers case.

Nixon had smeared the Times, accusing it of libel as he had smeared Voorheesand Douglas. There was no way for the public to know the Times had not libeledAgnew. If a presidential candidate takes time on a national TV show a few daysbefore the election to accuse the Times falsely, there was realistically no way forthe Timesto defend itself.

I drafted a letter which I sent to John Mitchell, who was then the head of the

Republican campaign. I said our editorial was not libelous and that we would notretract it. Agnew’s lawyer would not give up. The next day, October 29, 1968,he said that the editorial was “absolutely libelous” and recommended Agnewsue theNew York Times. In a blistering statement to the press, Agnew denied allallegations of wrongdoing, called the information inaccurate, and demanded aretraction.11



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He accused the Times of being prejudiced because it had endorsed Nixon’s

Democratic rival, Hubert Humphrey, for president. “Everyone knows that the Times endorsed Vice President Hubert Humphrey and is actively supportinghim,” his statement read. “The fact that the Times waited until a week before theelection to distort the facts and make its inaccurate charges against me compounds

the libel.”12

Agnew continued his attack on the Times through the election. He repeatedhis allegation of libel and continued to demand a retraction. Republicans, thinkingthey had gained an advantage by attacking the liberal media, kept the criticismsgoing.

At the end of the week John Mitchell, head of the Republican campaign, demanded another retraction from the Times. James “Scotty” Reston, the Times’ executive editor, had written a column that said “Nixon’s radio and television

appearances with citizen-interviewers were ‘nearly always in a controlled situation,

with the questioners carefully chosen, the questions solicited from the whole statesor regions, but carefully screened.’”13 I sent a letter addressed to Mitchell saying that we wouldn’t retract what Reston

had said. Throughout the rest of the campaign, the libel suit against the Timeswasmentioned frequently by Republican candidates. Many who covered the electionfor the press said they felt under threat with everything they wrote.14

At that point Agnew became Nixon’s attack dog against the press even beforeinauguration. In a speech before the Republican Governor’s Conference, heaccused the Times of distortions and inaccuracies. Smiling, he described theNew

York Times and Newsweek as “executionary journals.” He said there were other

publications that were “fit only to line the bottom of bird cages.”15

Once in office, Agnew enlisted Pat Buchanan and Bill Safire as hisspeechwriters. By the end of 1969, they were crafting whole speeches aroundAgnew’s hatred for all forms of media. Agnew barnstormed cities across theUnited States, delivering these speeches as if he was still campaigning againstthe Democrats.

In Des Moines, he criticized mainstream media for the “narrow and distortedpicture of America [that] often emerges from the television news.” The press wasa “tiny and closed fraternity of privileged men elected by no one.” While denyinghe had any interest in “censorship,” Agnew implied that newspapers and televisionnews programs should not be allowed to “wield a free hand in selecting, presenting,

and interpreting the great issues of the nation.”16 17

In San Diego, Agnew reached his apex. The press was, he said, “nattering nabobsof negativism.” With the success of that alliterative phrase, the press also became“Pusillanimous pussy footers,” and “vicars of vacillation,” as well as “the hopelesshysterical hypochondriacs of history.” TheNew York Timesdid not take this sittingdown and called him a “functional alliterate” and mocked him in headlines such as,“Traveling Agnew Volubly Verbalizes Viewpoint.”18



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But Agnew rejected calls to tone down his rhetoric when he was criticized forbeing too incendiary. Nixon told the press he would not censor Agnew, and Agnew

himself defiantly declared, “I intend to be heard above the din even if it meansraising my voice.”19

Realizing he was touching a nerve, his criticism started to get more personal,

calling out not only the institutional press, but individual reporters. For example, in just one speech, he managed to insult the editorial writers of theWashington Post,New York Times, Atlanta Constitution, New Republic magazine, and I. F. Stone’s

Bi-Weekly, as well as Post cartoonist Herblock,20 Times columnists James Restonand Tom Wicker,Lifemagazine’s Hugh Sidey, theNew York Post’s Pete Hamill andHarriet Van Horne, and syndicated columnist Carl T. Rowan.21

Agnew then touched off one of the great media battles in early 1971, leading afuror over the CBS TV documentary, The Selling of the Pentagon. CBS had chargedthat the Pentagon was engaging in a pro-Vietnam War “propaganda barrage” at the

taxpayer’s expense, and explored the corrupt relationship between the Pentagon andits defense contractors.22 This did not go down well with the Defense Department,Congress, or Agnew.

Agnew’s argument was somewhat convoluted. He said the producer and writerof the show were not to be trusted because the previous shows they had done onHaiti and hunger in America were false. It therefore followed The Selling of The

Pentagonwas false.CBS agreed to run comments by Agnew and three defense officials in edited

form. Yet, instead of feeling vindicated, this made Agnew furious. “It’s ratherunusual to give you the right of rebuttal and not allow you to decide what you’re

going to say in rebuttal. They edited some of my previous remarks and [remarksof] two other administration officials and showed only the ones they wanted toshow.”23

But Agnew’s threats against the press were not empty rhetoric. Rep. HarleyStaggers, head of the House Armed Services Committee, followed up on thecriticism of the editing of The Selling of the Pentagon. He subpoenaed outtakesfrom CBS.

Staggers wanted to know what CBS edited out and what it kept in its show.Frank Stanton, the president of CBS, appeared before Staggers’ Committee andeffectively told Staggers to stuff it. He said the First Amendment protected CBS’right to decide what it should include and exclude on its network. He said hewould go in contempt of Congress if Congress enforced its subpoena against

him.24 The Armed Services Committee voted to hold him in contempt, but the entire

House then voted down the contempt citation 226–181.25 It was a great triumph forthe press. It was, however, before the case involvingNew York Timesreporter EarlCaldwell reached the Supreme Court later that year.



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The Caldwell case was a dramatic stage-setter for the Pentagon Papers case,

and it was a central part of Nixon’s war against the press. As soon as Nixon wasinaugurated, his Justice Department started subpoenaing the press for its sourcesand other unpublished information. This was unprecedented. The reverberationsfrom this fight can be felt to this very day.

Documents

Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles