E-Mail This Article to a Friend The Gray Lady in shadow, continued

That precedent comes from the Nixon administration, which contemplated indicting the three newspapers that published excerpts from The Pentagon Papers in the waning years of the Vietnam War — namely the New York Times, the Boston Globe, and the Washington Post — along with some of the individuals involved. Indeed, when the Supreme Court in 1971 turned down the Nixon DOJ’s request for an injunction against publication, there were three justices (Burger, Harlan, and Blackmun) who thought the court should have prevented publication altogether, and three (White, Stewart, and, again, Blackmun) who went out of their way to suggest that the DOJ consider indicting the newspapers after publication. The Nixon administration’s failure to prevent publication, warned justices White, Stewart, and (agreeing in his separate opinion) Blackmun, "does not measure its constitutional entitlement to a conviction for criminal publication." In other words, although the First Amendment might prevent a prior restraint on publication, this did not mean that publishing was legal or that the publishers could escape criminal prosecution.

The White-Stewart opinion, approved by Blackmun, proceeded to list numerous statutes arguably rendering such publication criminal, including the Espionage Act and a plethora of laws prohibiting communication of documents relating to the national defense, as well as the "willful publication" of any classified information concerning "communication intelligence activities" of the United States. Two justices (Burger and Harlan) did not specifically address the question of post-publication criminal prosecution of the newspapers, but their endorsement of the idea can be inferred from the fact that they approved of an injunction against publication in the first place.

So let’s not kid ourselves: five of the nine justices would have approved of criminal prosecution of the newspapers in the Pentagon Papers case, even though a majority would not authorize a pre-publication injunction. Therefore, this often-touted victory for freedom of the press was in fact quite limited and foreshadowed a battle of monumental proportions.

NIXON UNBOUND

In his authoritative 1972 book, The Papers and the Papers, Sanford J. Ungar concluded that the main reason Nixon and Attorney General John N. Mitchell did not prosecute media targets was because by that time the Watergate scandal had broken. (Disclosure: I represented Ungar during the Pentagon Papers episode.) Nixon was on his way to impeachment or resignation while Mitchell was on his way to indictment and federal prison. Later, Whitney North Seymour, the moderate Republican US attorney for New York at the time of the Pentagon Papers imbroglio, wrote in his autobiography that the DOJ sent emissaries to enlist the cooperation of Seymour’s office in securing an indictment of the newspapers and of individual employees, but that Seymour responded "Not in this District." Soon thereafter, Watergate came to the rescue.

But it is not far-fetched to assume that the current administration — just as obsessed with secrecy as Nixon’s and equally determined to cover up its derelictions and crimes, and with few if any voices of moderation the likes of Seymour’s — will pick up the cudgel the Nixon team abandoned.

Such an indictment could be brought in short order. It would be unnecessary for the DOJ to complete the leak investigation before indicting media defendants, since the mere publication of the story would be the alleged crime regardless of the identity of the leakers. Nor would the Times’ publisher, editors, and reporters be able to claim ignorance of the top-secret nature of the information published: surely the president and his aides made that very clear at a meeting held with Keller and Sulzberger in the Oval Office last year. Besides, the Times’ voluntary postponement of publication for a year prior to that meeting could readily be spun as indicating knowledge that harm to national interests was possible.

This is not to say that prosecution would be a cakewalk for the DOJ. Although it easily could obtain an indictment, getting a conviction is another story. The media defendants would doubtless be represented by top-flight lawyers — this time, however, by criminal-defense lawyers skilled at convincing ordinary people, rather than First Amendment counsel arguing nice legal points to judges as was the case in the Pentagon Papers conflict as well as in the disastrously unsuccessful Plame "reporter’s privilege" battle. In addition, the case likely would be tried in either New York or Washington, DC, where prosecutors would be confronted with those cities’ famously skeptical and independent — even ornery — jurors, who would be required to agree unanimously in order to convict.

Defense lawyers would doubtless argue, probably effectively, that their clients performed a public service by exposing official wrongdoing at the highest levels of government. Bush would, in effect, be placed on trial, along with the New York Times. One can imagine defense counsel quoting Thomas Jefferson that "between a government without newspapers or newspapers without government, I would surely choose the latter." It would be one helluva fight — the fight that we never got to see between Nixon and the media.

Harvey Silverglate, a lawyer and frequent "Freedom Watch" contributor, represented several parties in the Pentagon Papers litigation. Samuel A. Abady and Dustin Lewis assisted in the preparation of this piece.