Personal History (84 page)

In the midst of the bedlam, Ben left the room to call his closest friend, Ed Williams, who by now was also a good friend of mine. Ed was in Chicago trying a divorce case, and Ben reached the editor of the
Chicago Sun-Times
and asked him to send a copy boy down to the court with a message saying he needed to talk to Ed immediately, conveying the idea that this was, as Ben later said, “as serious as anything I’ve ever faced.”

Ed was a great lawyer with a lot of political as well as common sense. The two men talked for perhaps ten minutes, according to Ben, during which Ben, as objectively as he could, told Ed everything that had happened to that point and then waited for a response. Ed finally said, “Well, Benjy, you’ve got to go with it.”

Gene Patterson’s job that day was to run the newsroom as though nothing were happening. But the people in the newsroom are as good at sniffing out something happening right in their midst as they are at following stories outside. No one could help noticing the absence of Chal, Murrey, and Don Oberdorfer as well as Bagdikian, Howard, and Ben. Certainly something was up. Gene stopped by Ben’s house on his way to my party, and then walked up the hill to my house. As I was receiving guests, he pulled me aside and gave me the first warning of what was to come, saying that he believed the decision on whether to print was going to be checked with me and that he “knew I fully recognized that the soul of the newspaper was at stake.”

“God, do you think it’s coming to that?” I asked. Yes, Gene said, he did.

By now, crucial time was passing. The deadline for the second edition was fast approaching. Jim Daly had come up to me twice at Gladstein’s party, worrying about when we’d get the story and be able to put it into print, and asking if I had yet heard from the other house. I was strangely unconcerned and said I was sure they were just finishing and we would get it in time.

It was a lovely June day, and the party for Harry spilled out of the house onto the terrace and the lawn. I was making a toast to him and going full-blast about how much he had meant to the paper and to me personally when someone tugged at my sleeve and said with some urgency, “You’re wanted on the phone.”

I protested that I had to finish the toast, but the response was, “They want you now.” I finally got the idea that it was really important, wound up the toast quickly, and took the call in a corner of the library. I was sitting on a small sofa near the open door, and Paul Ignatius stood near me. Fritz was on the other end of the line. He told me about the argument between the lawyers and the editors over whether to publish the next day, outlined the reasoning on both sides, and concluded by saying, “I’m afraid you are going to have to decide.”

I asked Fritz for his own view; since he was so editorial-minded and so decent, I knew I could trust his response. I was astonished when he said, “I guess I wouldn’t.” I then asked for time to think it over, saying, “Can’t we talk about this? Why do we have to make up our minds in such haste when the
Times
took three months to decide?”

At this point, Ben and the editors got on various extensions at Ben’s house. I asked them what the big rush was, suggesting we at least think about this for a day. No, Ben said, it was important to keep up the momentum of publication and not to let a day intervene after getting the story. He also stressed that by this time the grapevine knew we had the Papers. Journalists inside and outside were watching us.

I could tell from the passion of the editors’ views that we were in for big trouble on the editorial floor if we didn’t publish. I well remember Phil Geyelin’s response when I said that deciding to publish could destroy the paper. “Yes,” he agreed, “but there’s more than one way to destroy a newspaper.”

At the same time that the editors were saying, seriatim, “You’ve got to do it,” Paul Ignatius was standing beside me, repeating—each time more insistently—“Wait a day, wait a day.”

I was extremely torn by Fritz’s saying that he wouldn’t publish. I knew him so well, and we had never differed on any important issue; and, after all, he was the lawyer, not I. But I also heard
how
he said it: he didn’t hammer at me, he didn’t stress the issues related to going public, and he didn’t say the obvious thing—that I would be risking the whole company on this decision. He simply said he guessed he wouldn’t. I felt that, despite his stated opinion, he had somehow left the door open for me to decide on a different course. Frightened and tense, I took a big gulp and said, “Go ahead, go ahead, go ahead. Let’s go. Let’s publish.” And I hung up.

So the decision was made. But later that evening Fritz came over to my house. Roger Clark, still worried, had thought of a new problem: he
feared an extra charge of collusion with the
Times
and wanted to know the source of our obtaining the Papers. Bagdikian by this time had gone to the paper, carrying the last of Chal’s story to set in type. At first Bagdikian maintained that the source was confidential, but when Clark insisted, he identified Ellsberg, the presumed source for the
Times
, which only increased Clark’s concern about collusion. This time Fritz really helped. I had no idea whether collusion made our situation more vulnerable or not, but Fritz said that we’d made up our minds and should go ahead. I was relieved, and agreed.

Our lawyers by then were behind us and very supportive. In addition, Fritz had Roswell Gilpatric of the Cravath firm down from New York, with whom he was informally consulting, as Ben was with Edward Bennett Williams. The two young lawyers in the Washington branch of our law firm—Royall, Koegel & Wells—sent to New York for a litigator, William Glendon, whom we didn’t know and who was relatively inexperienced with cases like this.

At about 3:00 p.m. Friday, while I happened to be sitting in Ben’s office, a call came from William Rehnquist, then the assistant attorney general for the Department of Justice’s Office of Legal Counsel. Rehnquist read the same message to Ben that he had sent to the
Times
. Ben told Rehnquist, “I’m sure you will understand that I must respectfully decline.” He also refused to delay the rest of the series pending resolution of the
Times’s
case in New York. The government promptly filed suit against the
Post
, a suit that matched the one lodged against the
Times
, and named as defendants everyone on the masthead of the paper, plus the author of the first article (the one that had appeared on June 18), Chalmers Roberts.

The case was routinely assigned to Judge Gerhard Gesell, a distinguished jurist of a liberal mind. He had helped in the 1954 acquisition of the
Times-Herald
, at a time when he worked for Covington & Burling and had also been a friend of Phil’s and mine when we were all young, but our paths had gone different ways and I no longer saw him and his wife, Peggy. In fact, Phil had fired him during one of his bad years, which was what enabled Gerry to take the case.

At 8:05 p.m. on June 18, Gesell ruled for the
Post
, refusing to grant an order restraining the paper from further publication of the series and saying, “The court has before it no precise information suggesting in what respects, if any, the publication of this information will injure” the nation. The court of appeals, to which the government instantly went, ruled for the government at about 1:20 a.m., reversing Gesell’s decision. Fritz was at the court with the lawyers arguing that we had several thousand papers on the street and the plates on the presses. So, at 2:10 a.m., the court agreed with us that the injunction didn’t apply to that night’s paper, and we finished the press run.

Gerry Gesell confided to me after his retirement, “If anybody ever carves anything on my tombstone, they might say I was the only judge out of twenty-nine judges who heard the Pentagon Papers case who never stopped the presses for a minute. The only one. I’ve always taken a little pride in that.” In staying Gesell’s order, the appeals court had also told him to hold a fuller, more detailed hearing on Monday, June 21. Over the weekend, he tried to get a handle on what was behind the case, to get it into some kind of shape to be heard. Because the courthouse was undergoing construction, Gesell held a meeting at his house with some Justice Department officials, telling them to select the ten most damaging things in the Papers and that he would limit the Monday hearing to that list. At some point, a Justice Department lawyer told Gesell that, of course, the defendants—meaning all of us connected with the
Post
who’d been named in the suit—wouldn’t be present at the hearing; it had to be held in secret. Gesell told him firmly, “We don’t do things that way,” adding, “If that’s the way it’s going to go, I’ll dismiss the case. I won’t even hold a hearing.” He suggested the lawyer call the White House—or, as Gesell put it, “wherever or whoever it was that gave you those instructions”—and tell them he would dismiss the case if that was the condition. The lawyer did call someone and returned to say it would be all right to have the defendants present. Finally, the Justice Department lawyers left, leaving the Papers behind. As Gesell later recounted:

On Monday, Fritz, Ben, Don and Mary Graham, and I, among others, went into court for the hearing. There was a swarm of press people outside. All the windows of the courtroom were blacked out. At one point as the case proceeded, the government put on the stand an ex–CIA man who had been working in the Pentagon who testified how serious the situation was and that publication of some of these papers would reveal certain war plans of the United States. Gesell didn’t believe this man and called for the general in charge of the war plans to be sent over to testify. He was duly
brought in—the quintessential general, bedecked with medals—and as Gesell remembers it, after taking the oath to tell the truth, he stated, “Judge, if anybody thinks these are our war plans, I sure hope they do, because these are entirely out of date.”

The government then tried to hit another of its points on the list, claiming that there was a Canadian diplomat who had infiltrated Vietnam and was passing information to the Americans, which was a violation of Canadian treason laws. The government’s point was that, if the information got out, this was a capital offense and the man would be executed. Here is where the skill of our reporters helped us. Not only did they write depositions, but they came up with citations proving that the alleged top-secret items had already been published. Chal Roberts promptly supplied several published books to our lawyers, in each of which the Canadian diplomat was mentioned by name along with a description of what he was doing. So much for that argument.

In the end, Gesell refused to grant the government an injunction against the
Post
, allowing the series to resume. Later that day, however, the U.S. Court of Appeals for the District of Columbia continued the temporary restraining order and ordered a hearing before the full nine-judge appellate court, which heard the case on June 22. I attended the proceedings that day also. The court affirmed Gesell’s decision, upholding the
Post’s
constitutional right to continue the series based on the Papers. At the same time, however, the court continued the restraining order to allow for an appeal.

The day
The New York Times
had published its first story, Erwin Griswold, solicitor general of the United States, and his wife were in Florida sunning themselves at a hotel pool and resting after he had made a speech to the Florida State Bar Association the night before. When he read the
Times
’s story on the Pentagon Papers, he immediately turned to his wife and said, “Well, it looks as though I’m going to have a case in the Supreme Court one of these days.” Much later he told me that he assumed November would be the earliest conceivable moment the case would be brought to the Court. When he got back from Florida, there was a note for him to call the attorney general. Griswold—who had been a Johnson appointee but was still serving under Nixon—said that, at meetings with Mitchell and other Justice Department officials, he consistently “counseled against going ahead with the case. I said, ‘The trouble is you don’t have any ground to stand on.’ But nobody except me ever had any thought of not going ahead.”

On Friday, June 25, the Supreme Court granted the petitions for certiorari from both the
Times
and the
Post
. At the same time, since the
Times
, because of its separate route through the courts, was still prohibited from publishing, and the
Post
was not, the Court—at least until a final decision
could be handed down—put both newspapers under equal restraints, marking the first time the Supreme Court had restricted publication of a newspaper article. What the Court’s decision to accept the cases meant for Griswold was that he had only twenty-four hours to prepare his brief, still not having seen the Papers themselves. He began to focus on them at once, arranging to see three government people, and asking each of them to tell him what problems might arise if the Papers were published in full. Even after talking with these people, he realized he didn’t have a very strong case.

Griswold was back in his office early Saturday morning to finish preparing his brief. With no help in the Justice Department on Saturday, he and his secretary ran it off on the mimeograph machine. They then assembled the pages, stamped them “Top Secret,” and went off to court. Griswold had two extra copies of his brief, one for the
Times’s
counsel and one for the
Post
’s. He recalled being taken aback when the guard for the Papers asked him what he intended doing with those copies and when he was told said, “Well, that’s treason; that’s giving them to the enemy.” Griswold nearly had a set-to with the security man, insisting it was his professional responsibility to furnish copies of the brief to the other side. So bizarre were the security and secrecy surrounding the case that officials from the government had taken away our own brief, impounding it as top secret!