Presidents v. Press: How the Pentagon Papers Leak Set Up First Amendment Showdowns

TEXT ON SCREEN: June 13, 1971

NARRATION: On June 13, 1971, President Richard Nixon found his administration in an uncomfortable position.

ARCHIVAL: (NIXON OVAL OFFICE TAPES, 6-13-71):
RICHARD NIXON: Right, well, Monday afternoon officially? Well, let’s wait until then. Fine. OK. Nothing else of interest in the world today?
ALEXANDER HAIG: Yes, sir, very significant, this goddamn New York Times exposé of the most highly classified documents of the war.
RICHARD NIXON: Oh, that. I see.
ALEXANDER HAIG: That, that—
RICHARD NIXON: I didn’t read the story, but you mean that was leaked out of the Pentagon?

NARRATION: The New York Times had begun publishing a trove of secret documents called the Pentagon Papers – exposing how president after president had misled the American people about their country’s role in escalating the Vietnam War.

ARCHIVAL (NIXON OVAL OFFICE TAPES, 6-17-71):
RICHARD NIXON: What in the world does a–do responsible publishers think about, to put out truckloads of secret documents?
REPRESENTATIVE F. EDWARD “EDDIE” HERBERT (D-LOUISIANA): It’s getting worse every day.
RICHARD NIXON: It’s awful, isn’t it?

FLOYD ABRAMS (COUNSEL FOR THE NEW YORK TIMES PENTAGON PAPERS CASE): The lawyers who represented The Times had already given dire warning that publication could subject them to prosecution under the Espionage Act, that they could lose their television licenses, that the publisher could go to jail – all said with a very high level of intensity.

NARRATION: But The Times refused to stop publication, saying the American people had the right to know the hidden calculations behind the war.

Nixon turned to the courts to stop them.

ARCHIVAL (NIXON OVAL OFFICE TAPES, 6-15-71):
RICHARD NIXON: Right to know. That’s of course a Goddamn code-word: right to know – the public has no right to know secret documents. What The Times has done, is placed itself above the law.

FLOYD ABRAMS: They – they filed a lawsuit asking a federal judge to enter an order barring The New York Times from publishing any more of the Pentagon Papers than they had already. They got to court after two days of publication.

It was very unusual for the government to go to court to try to stop publication of anything. But the idea of a government going to court with respect to an ongoing news story was all but unknown.

NARRATION: For Nixon, the case was about more than stopping a leak. He wanted to undercut the press.

ARCHIVAL (NIXON OVAL OFFICE TAPES, 6-17-71):
RICHARD NIXON: Let’s make something out of it. It’s an opportunity.
CHARLES COLSON: This issue, Mr.–”
RICHARD NIXON: Listen, The New York Times, believe me, The New York Times can be discredited for, indefinitely as a result of this. In fact I’m going to.

ARCHIVAL (ABC, 6-17-71):
ANCHOR: There’s more at stake in this debate than one newspaper series, or even one major breach of security. Sooner or later, we can expect this issue to come before the Supreme Court, and the question there will be the role of the press in a democracy.

NARRATION: The answer came quickly. In New York Times Co. v. United States, the Supreme Court ruled 6 to 3 that the Nixon administration did not have sufficient cause to justify prior restraint, meaning it had failed to show that publishing classified documents would cause imminent harm and that attempting to stop publication was a violation of the First Amendment protection for freedom of the press.

FLOYD ABRAMS: At its core the Pentagon Papers case is a prior restraint case, a case against allowing the government to stop speech in its tracks. It was very embarrassing for President Nixon to have gone to court and lost and have the Supreme Court write an opinion vindicating the press that he hated so much.

NARRATION: But Nixon wasn’t finished.

ARCHIVAL (NIXON OVAL OFFICE TAPES, 6-29-71):
RICHARD NIXON: I just say that we’ve got to keep our eye on the main ball. The main ball is Ellsberg. We’ve got to get this son of a bitch.

NARRATION: Using a World War I statute meant to punish spies, Nixon’s Justice Department indicted Daniel Ellsberg — the military analyst responsible for leaking the Pentagon Papers to The Times.

DANIEL ELLSBERG (FORMER MILITARY ANALYST, LEAKED CLASSIFIED PENTAGON PAPERS REPORT): I was tried for a violation of what is commonly described as the Espionage Act because it’s usually for espionage, but I was tried under it for a non-espionage offense.

NARRATION: Unlike a spy, Ellsberg’s intention was not to help a foreign government. He wanted to reveal the truth about the Vietnam War to the American people.

ARCHIVAL (CBS 1-31-73):
FRED P. GRAHAM: Daniel Ellsberg says he leaked the Pentagon Papers because the government lied and concealed facts about the Vietnam War.

ARCHIVAL (APTN, 7-10-72):
DANIEL ELLSBERG: We won’t stop the killing. But this trial will inform the American public in ways that it’s never heard before of how we’ve been governed in the past quarter century and what censorship and deception do to a democracy.

DANIEL ELLSBERG: I’m not for espionage, and I don’t know anyone who is. And I’m not against criminalizing that. The question is, should it be criminal to inform your fellow citizens of things that, on the face, they ought to know?

NARRATION: That question was left unanswered as the Watergate scandal enveloped the Nixon Administration.

ARCHIVAL (NBC, 5-27-73):
ANCHOR: The President said that in 1971, he formed an investigative unit inside the White House to fight what he called “national security leaks.” One of the first things that people in that unit did was to burglarize the offices of Daniel Ellsberg’s psychiatrist.

DANIEL ELLSBERG: With Watergate breaking out and with the revelation of the crimes they’d taken against me by an almost miraculous set of events my charges were dismissed.

NARRATION: But in the decades that followed, other presidents sometimes turned to the Espionage Act as they waged their own battles against leaks to the press.

ARCHIVAL (ABC, 11-16-81):
BARBARA WALTERS: What’s been your biggest disappointment?
RONALD REAGAN: The inability to control the leaks. I think the District of Columbia’s one giant ear.

ARCHIVAL (C-SPAN, 12-20-06):
GEORGE W. BUSH: I don’t appreciate those who leak classified documents.

ARCHIVAL (THE WHITE HOUSE, 6-8-12):
BARACK OBAMA: If we can root out folks who have leaked, they will suffer consequences.

NARRATION: During the Obama Administration eight people were charged with violating the Espionage Act for sharing government secrets with the press — more than all previous administrations combined.

Matthew Miller was a senior official in the Obama Justice Department.

MATTHEW MILLER (FORMER JUSTICE DEPARTMENT SPOKESMAN): If you look the other way, then you only encourage other people to leak national security secrets. You do have to show that there are consequences for leaking information that could harm national security. And the only way to do that is to prosecute some of the individuals responsible for the most egregious leaks. There are secrets that need to remain secret.

NARRATION: Miller says that keeping secrets secret became more challenging in the digital age. Massive leaks of classified information by Edward Snowden and Wikileaks showed how vulnerable secrets had become.

ARCHIVAL (ABC, 7-26-10):
DIANE SAWYER: We begin tonight with that mountain of secret wartime information exposed in the press today, more documents than the Pentagon Papers during Vietnam.

NARRATION: But in trying to control leaks, Obama moved into territory that other Presidents had largely avoided.

ADAM GOLDMAN (INVESTIGATIVE REPORTER, THE NEW YORK TIMES): I’m sitting at my desk and I get an email that looks like it’s from the Department of Justice. I’m not sure what it is. And I look at Matt, and I say, “Matt, what is this? Is this spam?”

MATT APUZZO (INVESTIGATIVE REPORTER, THE NEW YORK TIMES): And I said, “It’s not spam. The government just took our phone records.”

NARRATION: In May of 2013, former Associated Press reporters Matt Apuzzo and Adam Goldman learned that the government had seized their phone records during an investigation into who leaked details of a CIA operation in Yemen.

The dragnet scooped up records from phones used by more than one hundred reporters and editors.

MATT APUZZO: One thing we heard again and again from prosecutors was, “Well, of course we took the phone records for your editors and your colleagues and your bureaus and swept everybody up, ‘cause that’s exactly how we would investigate a gang.” Well, we’re not a gang. We’re a newsroom and, you know, the right to deal drugs isn’t in the Constitution. So, there should be a recognition that what happens in the news gathering process is a little different. It felt like it was just an investigation intended to send the message, “Don’t talk to reporters.”

ADAM GOLDMAN: Yeah.

MATT APUZZO: It had the desired effect.

NARRATION: In the case of a classified leak to Fox News, the Obama Justice Department went so far as to imply that correspondent James Rosen – because of his reporting – could be charged with a crime.

ARCHIVAL (NBC, 5-26-13):
MICHAEL ISIKOFF: In court papers, an FBI agent said Rosen asked, solicited and encouraged a source to give him sensitive information about North Korea and that he was a possible “co-conspirator” for violations of the Espionage Act.

FLOYD ABRAMS: Not till that moment had the United States government ever characterized the behavior of a journalist as being that of a co-conspirator to a crime for asking questions about a government policy.

NARRATION: Rosen was never charged, and following an outcry by news organizations, the Obama administration reined in some of the more aggressive tactics used to obtain journalists’ records.

ARCHIVAL (C-SPAN, 5-26-13):
BARACK OBAMA: We must enforce consequences for those who break the law. But a free press is also essential for our democracy, that’s who we are. And I’m troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.

FLOYD ABRAMS: While there’s a necessity to protect national security, there is also an enormous need for an informed public. And so while, you know, one can justify certain prosecutions of leakers, the risk of them is that it does provide a roadmap for a hostile administration to really try to bring the press down.

ARCHIVAL (Getty, 1-11-17):
DONALD TRUMP: Your organization’s terrible. Your organization’s terrible. Let’s go….No I’m not going to give you a question. I’m not going to give you a question. You are fake news.

NARRATION: After his election, President Donald Trump aggressively ramped up the use of law enforcement to attack leaks…

ARCHIVAL (CNN, 2-16-17):
DONALD TRUMP: We’re going to find the leakers and they’re going to pay a big price for leaking.

NARRATION: As part of a larger war…

ARCHIVAL (CNN, 1-27-17):
DONALD TRUMP: I think the media is the opposition party.

NARRATION: … Against the press.

ARCHIVAL (FOX NEWS, 2-16-17):
DONALD TRUMP: The press has become so dishonest that if we don’t talk about it, we are doing a tremendous disservice to the American people.

NARRATION: During his administration, at least six people were charged with violations under the Espionage Act, including Julian Assange from Wikileaks. But, in investigating leak cases, it secretly obtained hundreds of phone records of reporters… and cast a wider net than ever before.

ARCHIVAL (MSNBC, ALL IN WITH CHRIS HAYES, 6-10-21):
CHRIS HAYES: Prosecutors subpoenaed Apple for the data from accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

MATT APUZZO: I think, in this day and age, the value of the unofficial story – the story that has not been sanctioned by the government, that value is greater than it’s ever been.

NARRATION: President Biden, who is continuing the prosecution of Julian Assange, has signaled that his administration won’t allow reporters’ phone records to be seized.

Having lived through the Nixon administration, Daniel Ellsberg knows how dangerous the abuse of the espionage act can be. He says it’s critical that no president is given the power to dictate the truth.

DANIEL ELLSBERG: Can you really have democracy, in a real sense, with the government having the final voice and the total voice as to what citizens shall know about what they’re doing and whether they’re telling the truth, and whether they’re obeying the law? I would say no. If they have the last word, and if citizens can only know what the government tells them, it’s a mockery of a democracy.

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