On Sunday June 13, 1971, a story was published on the front page of the New York Times under a three-column headline: “Vietnam Archive: Study Traces 3 Decades of Growing U.S. Involvement.” I thought it was the most boring headline I 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 had been expecting all hell to break loose. It was the first article in a planned series based on leaked Defense Department documents showing decades of deception and duplicity: how the American people had been misled about our involvement in Vietnam. But with this boring headline, I wondered if all our expectations of a huge explosion following publication would be wrong. All that day, I kept waiting for the other shoe to drop, but it didn’t.
Indeed, the nation’s press on that Sunday was more interested in Tricia Nixon’s wedding the previous evening. I had watched excerpts of it on TV. I noted with interest some of the high-placed dignitaries who were there, and wondered how they would react to the bombshell story right there on the front page the next morning, next to coverage of the wedding.
I took a radio with me out to my dock on the lake next to my house and turned it 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 a word or two about the Times’ publication of a Vietnam archive.
The White House had no reaction. President Richard Nixon had not even read the article. Attorney General John Mitchell hadn’t read it either. The headline, apparently, had put everyone off.
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 world today?” to which Haig replied, “Yes sir—very significant—this, uh, goddamn New York Times exposé of the most highly classified documents of the war.”
In his phone call with Nixon, Haig called it, “a devastating...security breach of the greatest magnitude of anything I’ve ever seen.” Nixon was much more worried about the leak than the story. He suggested an easy solution: he would just start firing people at the Department of Defense—whoever could be held responsible.
Secretary of State William Rogers was next to call Nixon. Their conversation was mostly about the coverage of Tricia Nixon’s wedding. Admitting that he hadn’t read the story yet—wedding coverage was a higher priority—Nixon brushed it off 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 agreed with Kissinger that printing the Pentagon Papers was an unconscionable thing for a newspaper to do. “It’s treasonable, there’s no question—it’s actionable, I’m absolutely certain that this violates all sorts of security laws,” Kissinger said. He told Nixon not to ignore the story: “It shows you are a weakling, Mr. President.” Nixon told Kissinger to call Attorney General John Mitchell to discuss what to do.
I was the chief counsel for the New York Times. As the newspaper’s top lawyer for all its business, including journalism, I had been closely involved in our internal discussions with editors, reporters, and the publisher about whether we could or should publish the Pentagon Papers. I had told the Times that in my view there was a high probability that Secretary of Defense Melvin Laird would call for Mitchell or Nixon to take action against the Times.
But on Sunday, Laird called neither Mitchell nor Nixon. He did, however, prepare for a TV appearance on Meet the Press, assuming the program would be entirely 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 brewing had come several weeks earlier, on March 13, 1971, at the annual Gridiron Club dinner. There was hardly a more important dinner for politicians and journalists in Washington, D.C. than the Gridiron Club. The greats of the political and journalistic world attended in tails. The President of the United States was usually the main speaker, 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 in Florida. 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 there because I was vice president and general counsel of the New York Times Co. It was an 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 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. Limousines for Spiro Agnew, Henry Kissinger, Chief Justice Warren Burger, and Teddy Kennedy rolled through the picket line.
With limited invitations, the Times parsed them out to those it wished to impress. Sharing this prized invitation in-house was unusual, so I was surprised when I was invited 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 several successful years. I had been leading the press’s fight against Nixon’s attempts to subpoena reporters and it had been my idea to take the New York Times Co. public while 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 led a large acquisition of Cowles Communications designed to solve the company’s financial problems. With a huge asset base, the New York Times Co. could negotiate with the unions and protect the financial integrity of the Times newspaper. This led to the prosperity the overall company and the newspaper enjoyed in the 1980s and 90s.
The second theory I had for my invitation was that Punch Sulzberger had decided to introduce me to the greats of the world. That was, of course, pure fantasy. While I 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 to the 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 to time with the famous New York Times reporters 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 managing editor, 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. I was 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 the United 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 his wife 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 the main ballroom for my first experience at a high celebrity event.
The place buzzed with importance. Punch was immediately mobbed by senators and 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 Roger Mudd, 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 heard about the classified documents we have on Vietnam?” I said I hadn’t, placing little significance 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 for Nixon, calling them “nattering nabobs of negativism” and worse. He was introduced as “that ferocious, fulminating fireball of the far-flung fairways.” Agnew sang a song with the line: “Politics is a rough game—when effete snobs rule the airwaves, someone had to set things right.” The guests roared. After the dinner, Punch took me to a small party in a room in the Willard Hotel, only about fifty people. The door opened, and there were Senators Ted Kennedy and Hubert Humphrey.
Suppressing my awe, I turned from listening to one conversation to bump into Supreme 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 to the Sulzbergers,” and so on. Potter Stewart then started talking about the Sullivan decision, from the famous Times libel case that went to the Supreme Court. In Sullivan, the court applied the First Amendment in a libel case for the first time. I told him that I had worked on that case at Lord, Day & Lord, the outside counsel for the New 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 untruthfully accused him of mistreating civil rights demonstrators. The Alabama court entered a $500,000 verdict against the Times. There were other similar cases pending which, if successful, would have put the Times out of business. The U.S. Supreme overturned the verdict, creating a new rule for libel under the First Amendment. The other cases disappeared. The Times was saved.
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 side of the press they’re on at cocktail parties?” But I said nothing, smiled and changed the subject.
The next day, I went with Punch Sulzberger and our wives for lunch at Max Frankel’s home. I discovered that lunches and dinners are the staple of Washington life. Once, when I asked Max how he rated a particular Washington denizen, he said 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 in Frankel’s living room. Meanwhile, Punch, Carol, Max and I were eating out on Max’s terrace enjoying the early spring sunshine. Our terrace luncheon dragged on. 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 a tranche of classified documents. I was being let in on a secret, and I was to keep it secret. I didn’t yet know exactly what the documents were, but I was supposed to figure out how to publish them.
Nixon's war against the press
While I was naive about how the social world of Washington worked in terms of lunches and dinner parties, I was not a naif about Washington politics and the relationship between the press and the government. The New York Times had been fighting Nixon since the 1968 election. Nixon had gone on national television to threaten the Times with a libel suit for an editorial entitled “Mr. Agnew’s Fitness.” This marked the beginning of Nixon’s war against the press which continued until he resigned. Nixon was the first president in memory to use or threaten to use the legal process to get his way with the press. It is one thing to engage in a verbal attack against the press, another to convert that animosity to legal action.
The Pentagon Papers case cannot be understood without fully understanding its context. 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 to create a favorable climate for his administration.
In the Watergate tapes, Nixon bragged to his national security advisor Henry Kissinger several times that he brought down Alger Hiss by attacking him in the press. 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 was accused of being a communist by Whittaker Chambers, a renounced communist American writer and defected Soviet spy. Chambers had shared this information with Nixon’s House on Un-American Activities Committee when Nixon was a congressman.
When on December 2, 1948, Chambers produced microfilm of State Department documents given to him by Hiss, which Chambers stored in a pumpkin, Nixon crowed that the “Pumpkin Papers” showed the perfidy of liberal democrats. Hiss, having denied knowing Chambers, was indicted for perjury. Hiss won the first perjury trial with a hung jury.
Hiss was tried again, and in the second case he was convicted of perjury and sent to prison. As a teenager I followed the Hiss case as carefully as an average kid might follow 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 Chambers were 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 late president and a partner in the law firm of Choate Hall & Stewart, knew Hiss when he worked for that law firm. No one in Cambridge could believe that Hiss had 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 was protecting her.
For whatever it’s worth, I thought Hiss was guilty because the Pumpkin Papers were typed on a Woodstock typewriter that had once belonged to Priscilla Hiss. Strangely enough, when I arrived at Debevoise & Plimpton, the firm that had handled the first trial, I learned something interesting: Hiss’ own lawyer, Edward McLean, had sought the typewriter on the theory that it would exonerate Hiss. McLean thought he would find that Hiss did not own the typewriter.
Nixon seemed to be right in this particular case, but I developed an extraordinary loathing for him. He symbolized for me everything that was wrong with the Republican Party. He was extremely threatening to what I thought was the best part of America—the liberal Eastern establishment.
His campaigns against Congressman Jerry Voorhees and Congresswoman Helen Gahagan Douglas were liberal nightmares. Nixon was accused of using every dirty trick imaginable against Voorhees and slandered Douglas with gutter tactics. For example, Nixon pioneered an early version of “robo-calls” during his campaigns in 1946 against Voorhees. In these calls, an anonymous person would call a household, say “we just wanted to inform you that the congressman who represents your district, Jerry Voorhees, is a communist,” and then hang up. In his campaign against Douglas, Nixon insinuated she was a communist by referring to her as “the Pink Lady” and cited her supposedly communist-leaning voting record in Congress.
I was particularly sensitive to the attacks of right-wing Republicans such as Nixon and Senator Joseph McCarthy. A close friend of my family, George Faxon, who ran a camp I attended, was driven out of his teaching job because he refused to say under oath whether he had been a member of the Communist Party. Additionally, my friend from grade school, Louisa Edsall Kamin, and her husband, Leon, were forced to flee to Canada by Senator Joseph McCarthy for the same 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 at Princeton University.
I am not a radical liberal and never had been, but my attitude to Nixon informed every move when I advised the Times in the Pentagon Papers case. I thought I knew what he would do, how far he would go, what his legal strategies would be. It turned out I was right.
On October 26, 1968, a week before Nixon won the Presidency in a landslide, the New York Times ran an editorial accusing Nixon’s running mate Spiro Agnew of various misdeeds. The Times said 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 egregious comments this campaign, Mr. Agnew has demonstrated that he is not fit to stand one step away from the Presidency.”
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 could engage in,” he said, and “a retraction will be demanded at the Times legally tomorrow.” Yet Nixon refused to go into detail about which, or any, of the allegations he thought were incorrect, stating “I am not going to do anything that might injure Mr. Agnew’s case with regard to the Times.”
The next day, Agnew’s campaign manager, George W. White, Jr., called Harding Bancroft, the executive vice president of the New York Times, demanding a meeting about the editorial. Bancroft, who was then running the New York Times and for all practical purposes its CEO, asked me to attend the meeting. White was a well-fed, red-faced lawyer from Maryland who was very angry and blustery, and nothing like the distinguished Wall Street lawyers who then controlled the New York City legal establishment. Bancroft was a gentlemanly, waspy ex-diplomat who had hired me with the thought that I would succeed him as the de facto CEO of 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 taking bribes and had to resign as vice president. White wanted a retraction and if he did not get it, Agnew would take appropriate action. He said that Agnew had also sent a lawyer for the Nixon-Agnew campaign committee, Everett I. Willis, a partner at Dewey 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. The statement in the editorial was merely the New York Times’ opinion. One generally cannot sue a newspaper or anyone else for an opinion. Furthermore, the Supreme Court in its great Sullivan case, which I had discussed with Potter Stewart at the Gridiron Club, made it almost impossible for someone like Agnew to win a libel case against a newspaper. He would have to show the Times was 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 they did sue the Times, Louis Loeb and Lord, Day & Lord, would have to defend it. I had started at Lord, Day & Lord in 1959, a year after graduating from the University of Chicago Law School following a stint in the U.S. Army, where I served in intelligence. I was extraordinarily grateful to Lord, Day & Lord for hiring 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 did not 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 interviewed with New York law firms, the comment frequently was, “I didn’t know they had a law school out there.”
I was on a fast track at Lord, Day & Lord, although I didn’t realize it at the time. After only two years I had my own clients, enormous responsibility, and the respect of those with whom I worked. Ferdinand Eberstadt, a client who had his own investment firm, had taken a shine to me and had told Lord, Day & Lord I was “the hottest young lawyer on Wall Street.”
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 had been outside counsel for the Times for decades. By the time I got to his office he said, “You don’t have to tell me very much about that meeting this morning, I am reading about it right now in the newspaper.” He pulled out the front page of the New York Post, which covered the story.
It suddenly struck me that I was now in a different league. I could meet with Ferd Eberstadt ninety-two times and no one would know about it except a few at Lord, 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 my name 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. Nixon and Mitchell were making unsupported allegations. These allegations were similar to the ones Nixon made against Voorhees and Douglas and the same as Nixon would later make against the Times during the Pentagon Papers case.
Nixon had smeared the Times, accusing it of libel as he had smeared Voorhees and Douglas. There was no way for the public to know the Times had not libeled Agnew. If a presidential candidate takes time on a national TV show a few days before the election to accuse the Times falsely, there was realistically no way for the Times to 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 not retract it. Agnew’s lawyer would not give up. The next day, October 29, 1968, he said that the editorial was “absolutely libelous” and recommended Agnew sue the New York Times. In a blistering statement to the press, Agnew denied all allegations of wrongdoing, called the information inaccurate, and demanded a retraction.
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 supporting him,” his statement read. “The fact that the Times waited until a week before the election to distort the facts and make its inaccurate charges against me compounds the libel.”
Agnew continued his attack on the Times through the election. He repeated his allegation of libel and continued to demand a retraction. Republicans, thinking they had gained an advantage by attacking the liberal media, kept the criticisms going.
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 states or regions, but carefully screened.’”
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 Times was mentioned frequently by Republican candidates. Many who covered the election for the press said they felt under threat with everything they wrote.
At that point Agnew became Nixon’s attack dog against the press even before inauguration. In a speech before the Republican Governor’s Conference, he accused the Times of distortions and inaccuracies. Smiling, he described the New York Times and Newsweek as “executionary journals.” He said there were other publications that were “fit only to line the bottom of bird cages.”
Once in office, Agnew enlisted Pat Buchanan and Bill Safire as his speechwriters. By the end of 1969, they were crafting whole speeches around Agnew’s hatred for all forms of media. Agnew barnstormed cities across the United States, delivering these speeches as if he was still campaigning against the Democrats.
In Des Moines, he criticized mainstream media for the “narrow and distorted picture of America [that] often emerges from the television news.” The press was a “tiny and closed fraternity of privileged men elected by no one.” While denying he had any interest in “censorship,” Agnew implied that newspapers and television news programs should not be allowed to “wield a free hand in selecting, presenting, and interpreting the great issues of the nation.”
In San Diego, Agnew reached his apex. The press was, he said, “nattering nabobs of negativism.” With the success of that alliterative phrase, the press also became “Pusillanimous pussy footers,” and “vicars of vacillation,” as well as “the hopeless hysterical hypochondriacs of history.” The New York Times did not take this sitting down and called him a “functional alliterate” and mocked him in headlines such as, “Traveling Agnew Volubly Verbalizes Viewpoint.”
But Agnew rejected calls to tone down his rhetoric when he was criticized for being 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 means raising my voice."
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 the Washington Post, New York Times, Atlanta Constitution, New Republic magazine, and I. F. Stone’s Bi-Weekly, as well as Post cartoonist Herblock, Times columnists James Reston and Tom Wicker, Life magazine’s Hugh Sidey, the New York Post’s Pete Hamill and Harriet Van Horne, and syndicated columnist Carl T. Rowan.
Agnew then touched off one of the great media battles in early 1971, leading a furor over the CBS TV documentary, "The Selling of the Pentagon." CBS had charged that the Pentagon was engaging in a pro-Vietnam War “propaganda barrage” at the taxpayer’s expense, and explored the corrupt relationship between the Pentagon and its defense contractors. This did not go down well with the Defense Department, Congress, or Agnew.
Agnew’s argument was somewhat convoluted. He said the producer and writer of the show were not to be trusted because the previous shows they had done on Haiti and hunger in America were false. It therefore followed "The Selling of The Pentagon" was 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 rather unusual 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 [remarks of] two other administration officials and showed only the ones they wanted to show.”
But Agnew’s threats against the press were not empty rhetoric. Rep. Harley Staggers, head of the House Armed Services Committee, followed up on the criticism of the editing of "The Selling of the Pentagon." He subpoenaed outtakes from 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 and effectively 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 he would go in contempt of Congress if Congress enforced its subpoena against him.
The Armed Services Committee voted to hold him in contempt, but the entire House then voted down the contempt citation 226–181. It was a great triumph for the press. It was, however, before the case involving New York Times reporter Earl Caldwell reached the Supreme Court later that year.
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 was inaugurated, his Justice Department started subpoenaing the press for its sources and other unpublished information. This was unprecedented. The reverberations from this fight can be felt to this very day.
Excerpted from “Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles,” by James C. Goodale. Copyright © 2014 by James C. Goodale. Reprinted by arrangement with CUNY Journalism Press. All rights reserved.