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New York Times Company v. U.S.: 1971

Government Thwarts Own Prosecution Of Ellsberg

The criminal prosecution involved 15 counts of theft and espionage against Ellsberg and Russo. Ellsberg faced a possible 105 years in prison and $110,000 in fines if convicted. Russo faced a possible 25 years in prison and $30,000 in fines if convicted. The two men were tried in the U.S District Court for the Central District of California, which includes Los Angeles, where they were alleged to have stolen the Pentagon Papers.

The judge was William Matthew Byrne, Jr. The case was stalled for over five months with pretrial procedural activities, but jury selection finally began in June 1972. It took until July 1972 for a jury to be formed and the trial to begin, but the trial was halted almost immediately after it began when it was revealed that the government had been secretly taping the defendants' confidential communications. Supreme Court Justice Douglas, who was responsible for hearing emergency appeals from the Ninth Circuit, which includes Los Angeles, ordered the trial halted until October.

In fact, it was not until January 17, 1973, that the Ellsberg and Russo trial resumed. A whole new jury had to be selected. Further, the case was now overshadowed by the Watergate scandal. On September 3, 1971, G. Gordon Liddy and E. Howard Hunt, Jr., led a group of Cuban exiles in a break-in of the offices of Dr. Lewis Fielding, which were located in Beverly Hills, California. Fielding was Ellsberg's psychoanalyst, and the White House-sponsored break-in team was hoping to discover the identity of other Ellsberg accomplices team was files. The break-in was a total failure: there was nothing in Fielding's files.

When news of the government-sponsored bugging of the Democratic Party's headquarters in the Watergate hotel and office complex in Washington broke sometime later, it was only a matter of time before the special Watergate prosecutors learned of the Fielding break-in. This information was publicly revealed April 26, 1973, after the Ellsberg and Russo trial had been dragging on for months without any sign of an imminent conclusion.

At first, Byrne didn't want to consider dismissing the charges against Ellsberg and Russo. The government had invested a great deal of time and money in the prosecution. Then, after April 26, there were further revelations that the government had been conducting more illegal wiretaps of Ellsberg's conversations than had previously been admitted. In disgust, Byrne dismissed the entire criminal prosecution against Ellsberg and Russo on May 11, 1973.

Byrne's final dismissal of the charges against Ellsberg and Russo ended the Pentagon Papers affair. The significance of the entire episode is embodied in the Supreme Court's rejection of the government's attempt to prohibit the Times from publishing the news. Although the government will not necessarily always lose a case based on the alleged interests of national security, under New, York Times v. U.S. it must meet a heavy burden of justification before it can restrain the press from exercising First Amendment rights.

Stephen G. Christianson

Suggestions for Further Reading

Meiklejohn Civil Liberties Institute. Pentagon Papers Case Collection: Annotated Procedural Guide and Index. Berkeley, Calif.: Meiklejohn Civil Liberties Institute, 1975.

Salter, Kenneth W. The Pentagon Papers Trial. Berkeley, Calif.: Editorial Justa Publications, 1975.

Schrag, Peter. Test of Loyalty: Daniel Ellsberg and the Rituals of Secret Government. New York: Simon & Schuster, 1974.

Ungar, Sanford J. The Papers & the Papers: an Account of the Legal and Political Battle Over the Pentagon Paper. New York: Columbia University Press, 1989.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1963 to 1972New York Times Company v. U.S.: 1971 - The Government Moves To Stop The Leak, Supreme Court Throws Out Government's Case, Government Thwarts Own Prosecution Of Ellsberg