The Secret Briefs and the Secret Evidence
Supreme Court Briefs and Opinions
This Electronic Briefing Book features, for the first time published anywhere, the audio and transcripts of Nixon's first recorded conversations on June 13, 14 and 15 after publication of the Pentagon Papers began. The Nixon Presidential Materials Staff at the National Archives and Records Administration formally opened these conversations in the October 5, 1999 release of 3646 conversations totaling approximately 443 hours of Nixon tapes. Credit for forcing this long-overdue process of releasing the Nixon tapes should go to University of Wisconsin historian Stanley Kutler and the Public Citizen Litigation Group, which represented Professor Kutler in his lawsuit against the National Archives and the Nixon estate. As of April 20, 2001, these conversations became available for copying as part of 1284 total hours of Nixon tapes now opened (for more information, please see www.nara.gov/nixon/tapes). Archive research associate Eddie Meadows copied the recordings at the National Archives and painstakingly transcribed them, as part of our long-term documentation project on Vietnam, under the direction of Archive senior fellow John Prados.
The tapes answer definitively some of the major historical puzzles about the Pentagon Papers. For example, what was the initial reaction of President Nixon to the publication, and did that change over time? If the Papers endangered national security so gravely as to justify an injunction, why did the government not ask for such an injunction on the first or second day of publication? Were there mixed feelings about the Papers within the Nixon White House? How was the decision made to take the unprecedented action of enjoining the Times's publication?
The most thorough recent analysis of the case, by law professor David Rudenstine in The Day the Presses Stopped: A History of the Pentagon Papers Case (Berkeley: University of California Press, 1996), uses the handwritten notes of Nixon's chief of staff, H.R. Haldeman, to establish that Nixon's first reaction to the publication was relative calm. And in fact, the first two conversations of June 13 support this view.
National security adviser Henry Kissinger's assistant Alexander Haig was the first Nixon call on June 13, just after noon, and Nixon's initial questions were about the Vietnam casualty figures for the week. Only after Nixon asks, "Nothing else of interest in the world today?" does Haig remark on the "Goddam New York Times expose… devastating uh security breach… greatest magnitude of anything I've ever seen." But the initial Nixon reaction is almost casual, and he remarks that he did not read the story.
In Nixon's next conversation, with Secretary of State William Rogers at 1:28 p.m., the President does not even mention the Pentagon Papers until after discussing Tricia's wedding the day before, and then the casualty figures from the previous week. Even then, Nixon seems to take some comfort in the fact that "it all relates, of course, to everything up until we came in… It's hard on Johnson; it's hard on Kennedy; it's hard on Lodge." Each had been a Nixon rival in greater and lesser degree. But then Rogers and Nixon move on to gossip about former Defense Secretary Clark Clifford.
Professor Rudenstine devotes an entire chapter to
what he calls "Nixon's turnabout" from calm to fury, locating the source
of the reversal in the phone call, published for the first time in this
Electronic Briefing Book, from national security adviser Henry Kissinger
on Sunday afternoon, June 13. Describing Kissinger as having pressured
Nixon into taking action against the Times, Rudenstine buttresses his argument
with quotes from other Nixon aides (John Ehrlichman, Haldeman, Charles
Colson) blaming Kissinger, and a detailed parsing of Kissinger's and Nixon's
own memoir versions of their reactions. Rudenstine goes so far as
to say that "Kissinger's pressure, especially his contention that Nixon
would appear weak if he did nothing, made the major difference" (p. 91).
Quoting Haldeman, Rudenstine claims that Kissinger actually told Nixon
(supposedly in this phone call) that his decision to do nothing "shows
you're a weakling, Mr. President" (p. 72). In the phone call, Kissinger
says nothing of the kind (and who ever did say any such thing to any President?);
however, the tape of the Kissinger-Nixon call does lend some support to
Rudenstine's overall view.
It was not until Kissinger calls from California at 3:09 p.m. that Nixon does get heated up about the Pentagon Papers, and the tape shows the two men in effect cranking up each other's righteous indignation. In fact, Kissinger is the first to suggest "it's actionable, I'm absolutely certain that this violates all sorts of security laws," and goes on to volunteer to call Attorney General Mitchell on what the prosecution options are. Among other bon mots, Nixon says "people have gotta be put to the torch for this sort of thing…"
When the government failed to stop the Pentagon Papers publication, of course, Nixon created his "Special Investigative Unit," the "plumbers" who were supposed to fix the leaks, who pulled their first break-in at the Los Angeles office of Daniel Ellsberg's psychiatrist in September 1971 and went on to infamy at the Watergate. In this tape, we are present at the creation, or at the beginning of the end.
At the same time, listening to the Kissinger phone call in the context of the recorded Nixon conversations the next day, Monday, June 14, tends to undercut Professor Rudenstine's contention that Kissinger (specifically the June 13 phone call) was the "major difference" in pushing Nixon towards legal action against the Times. In fact, as late as 7:13 p.m. on Monday night, Nixon exclaims to his top domestic policy aide, John Ehrlichman, "Hell, I wouldn't prosecute the Times. My view is to prosecute the Goddamn pricks that gave it to ‘em." The key turning point, according to the tapes, occurs when Nixon is told by Ehrlichman in that phone call that the Justice Department has to put the Times on notice right away or otherwise lose the ability to prosecute them. In other words, a tactical choice in effect forces a whole legal strategy.
Lacking access to the tapes, Rudenstine concludes that it was "late Monday afternoon" that Nixon decided to take legal action against the Times (p. 89). Rudenstine makes much of Nixon's meeting that afternoon with Haldeman, whose notes were the prime source until these tapes came out.
In this Oval Office conversation, Nixon fulminates about the "treasonable" Pentagon Papers publication; Haldeman describes Tom Huston's idea of a black bag job to remove whatever copy of the Papers were at the Brookings Institution; and they foam and fizzle about the people they suspect of the leak, including Morton Halperin, Leslie ("Sam") Gelb, and Anthony Lake. In one particularly priceless quote, Haldeman sums up the historic impact of the Pentagon Papers: "But out of the gobbledygook, comes a very clear thing: [unclear] you can't trust the government; you can't believe what they say; and you can't rely on their judgment; and the – the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it's wrong, and the President can be wrong."
But contrary to Rudenstine's theory, Nixon clearly declines to take immediate legal action, saying "I don't think we can do much now, but if the statute of limitations is a year, and we've got a year [unclear] charge them then. And we can just go in and put – uh, subpoena all these bastards and bring the case…."
The crucial turning point comes in the phone call from John Ehrlichman, who tells Nixon, "the attorney general [John Mitchell] has called a couple times, about these New York Times stories; and he's advised by his people that unless he puts the Times on notice – uh, he's probably gonna waive any right of prosecution against the newspaper; and he is calling now to see if you would approve his – uh, putting them on notice before their first edition for tomorrow comes out." At this point Nixon curses that he wants to prosecute not the Times, but "the Goddamn pricks that gave it to ‘em." Ehrlichman says Mitchell wants to go after the Times, and says he himself "would hate to waive something as good as that," and the only concern is whether it would affect a Congressional vote that week on Vietnam (Nixon thinks not).
Because this call was so brief and he didn't have the tape, Rudenstine concludes Mitchell merely informed Nixon of the warning telegram just sent to the Times. But the tape shows that it is in this call that the momentous decision was made, to send a telegram warning that the Times was violating the Espionage Act, a warning that led directly the next day to the injunction against the Times. Nixon questions Mitchell whether the government has "ever done this to a paper before?" Mitchell's answer obfuscates the issue by saying that yes, the government had frequently advised newspapers against publication of national security information (for example, when President Kennedy got the New York Times in 1961 to downplay advance word of the Bay of Pigs invasion). What Mitchell does not say is that never before had the government sought and obtained a prior restraint against a newspaper on national security grounds. Instead, Mitchell picks up on Nixon's phrase – "you do it sort of low key" – and says "we'd look a little silly if we just didn't take this low-key action of advising them about the publication." So Nixon says, "hell, they're our enemies – I think we just oughta do it."
By way of comic relief, this briefing book includes Nixon's next conversation after authorizing action against the Times. Nixon calls his chief of staff, H.R. Haldeman, to start a campaign to convince one of the TV networks to rerun Tricia's wedding in prime time. There is no mention of the Pentagon Papers.
By noon the next day, the government was in federal court in New York City, seeking and winning a temporary restraining order from Judge Murray Gurfein, a new Nixon appointee who was literally hearing his first case. Gurfein had served as an assistant to crusading New York district attorney Thomas Dewey in the 1930s, in Army intelligence during World War II, and as an assistant to prosecutor Robert Jackson at the Nuremberg war crimes trials. Gurfein heard the government's arguments starting in the early afternoon on Tuesday, and by early evening had granted the restraining order, requiring the Times to hold off on publication until after a full hearing could take place on Friday, June 18.
Apparently not yet knowing of the restraining order, the President was concerned not so much with the legal arguments, but with the spin control. This phone call with Colson set out the administration's talking points for the Pentagon Papers case: first, "it's the Kennedy-Johnson papers" (not Nixon's), second, "it's a family quarrel, we're not gonna comment on" (in other words, who's to blame for starting and escalating the war), and third, "we have the larger responsibility, to maintain the integrity of government."
When the President chats with the Attorney General, they still apparently
don't know that Gurfein has issued the restraining order. But they
were confident. Mitchell says, "We got a good judge on it…. He's
new, and – uh, he's appreciative…."
This is the first mention on the tapes of the Gurfein restraining order. After Rogers tells Nixon about it, Rogers worries that Gurfein is a "little liberal, and he's – uh, I'm sure he would like to cultivate the Times…." Nixon quickly responds, "Well he also may be thinking of going up too [being promoted to the Court of Appeals or Supreme Court]…. And he damn well better act well." Both of them laugh.
Much to their chagrin, of course, after the full hearing on Friday 18 June, Gurfein issued a ringing opinion withdrawing the temporary order, writing that "A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know. These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form…. No cogent reasons were advanced as to why these documents except in the general framework of embarrassment… would vitally affect the security of the nation."
At the very moment that Gurfein was holding his full hearing on Friday, 18 June, the Washington Post came out with its first publication of the Papers, obtained from Daniel Ellsberg by Post editor Ben Bagdikian while the Times was enjoined from publishing. So the government went to court in Washington D.C., before District Judge Gerhard Gesell. At one point in the Washington case, the government tried to submit a sealed affidavit to Gesell (from National Security Agency director Admiral Noel Gayler) while claiming it was too secret to show the Post's attorneys. As William Glendon relates, Gesell told the government if the document was too secret to share with the Post, it was too secret to share with the court. Gesell ultimately ruled against any injunction, and the U.S. Court of Appeals for the District of Columbia agreed with him; but the Second Circuit Court of Appeals overturned Judge Gurfein's ruling; and the case rocketed to the U.S. Supreme Court.