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Litigation Journal

Winter 2021 | Proof

The Pentagon Papers

Kenneth P Nolan

Summary

  • Working at the Times made me a better litigator and, undoubtedly, changed my life.
  • I learned to think, write, and act with purpose and resolve.
  • I learned there’s no excuse for a typo or missed comma, and learned to work under extreme pressure.
  •  I learned that life is difficult, often cruel.
The Pentagon Papers
simonkr via Getty Images

Jump to:

I needed money. So, when my brother mentioned that the New York Times needed a copyboy on weekends, I immediately applied. I had no idea what a copyboy was—and really didn’t care since I had just started my second year of college and was desperate for cash. My parents were wonderful, actually, but never had an extra nickel. At Christmas, when everyone’s mom would ooh and ahh at the elaborate lights and decorations, mine would icily proclaim: “I’m glad I’m not paying their electric bill.”

At the Times building on West 43rd Street, I was interviewed by Miss Moody, a white-haired, courtly woman who ran the editorial department on the sedate 10th floor. I could only guess at her questions since she spoke slowly, softly, and with a Southern accent, all unknown in my world of loud, fast Brooklynese. I tried to wait for her question to end, but it took forever, and my mind wandered as this was the first I had ever spoken to someone with an accent.

I was elated when Miss Moody called to ask if I could start that Saturday, where I met George, a weekday copyboy, who gave me a cursory explanation of my duties to the 12 white guys—no women or minorities, one Catholic—who wrote the influential editorials that shaped world opinion. A go-fer, I delivered mail and carried typewritten editorials from one editor to another, and then to the composing room. This was 1968, a world of lead type inserted by hand into metal frames, of pneumatic tubes through which copy was sent from the Ivy League–educated men who wrote the editorials to the blue-collar mugs who turned those words into lead type on machines that looked like they were straight out of the Guttenberg era.

On Saturday, we scurried about until we stood on the 4th floor—the cavernous and noisy composing room—with the editor and makeup editor while the editorials, letters, and columns were assembled by the printer. Don’t mess with these guys, George warned, pointing to the union printers. If you break one of their million rules, they’ll walk off the job (which they did in 1962 and 1965). Proofs were printed and the editors read and reread the pages, searching for typos, errors in grammar or style, with an eye on the news to ensure that an editorial didn’t have to be updated.

After all, this was the New York Times, the most influential newspaper in the world, read by every dictator, president, and business tycoon from Bangkok to Buenos Aires. All worked frantically, desperate to make the deadline so the 1.5 million copies of the Sunday paper could be printed and delivered to the far reaches of the globe. I would like to report that I immediately realized the written word’s value and power, but I was young and foolish, and everyone I knew read only the tabloids. It was months before I began to appreciate the best education I ever received.

A Working Education

Each weekend at the Times, I was exposed to editorial writers who read Pravda in Russian or told me of their lunch with this prime minister or that governor. Occasionally, I hand-delivered galleys of editorials to John B. Oakes, the personable and powerful editor of the editorial page, at his Fifth Avenue apartment overlooking Central Park. There a white-gloved doorman escorted me to his door, which was opened by a maid in a spotless, starched uniform. A tad different from the crowded, ragged walk-ups that filled my neighborhood, and the only mention of “maid” was when my mother would snarl: “Pick up your dirty clothes. I’m not your maid.”

Gradually, I realized the extent of my social and educational ignorance. I began to read the editorials, columns, and news stories along with papers from London and Washington. Occasionally, I was asked by Mr. Oakes, a Rhodes scholar, to read editorials over the phone, and my ineptitude was evident as I hesitated and mispronounced words. Mortified, I vowed to improve, keeping index cards of unfamiliar words with their meaning and pronunciation, just as my high school teachers had begged.

Turbulent, violent, and chaotic, 1968 seethed with protests, riots, assassinations—Dr. Martin Luther King and Bobby Kennedy—and hate. Vietnam split the nation, leading to a bloody 1968 Democratic convention. Colleges erupted, students took over buildings, which led to police storming campuses, billy clubs swinging, as at Columbia where hundreds were arrested.

It was during this violent and vicious time that I started at the editorial department, amid the passionate and divisive Nixon/Humphrey election. Like most college students, I had no use for either—anti-war Senator Eugene McCarthy, who chased President Johnson into retirement, was my hero. Yet, I was surprised at the editors’ deep personal venom for Nixon. In more refined words, their scorn echoed my parents’ and their friends’ loathing of anti-war protestors. Vietnam began the hostility between right and left that today, tragically, is pure hatred. For it was in 1968 that my white working-class neighborhood, proud members of the “silent majority,” eagerly supported Nixon. Never again would they vote for a Democratic presidential candidate.

The Times, however, was unabashedly liberal in tone and content. As early as 1965, editorials—the first by a major newspaper—opposed the Vietnam War. Oakes’s editorials provided protection and confidence to establishment politicians and business executives who wanted the troops home while being seen as loyal, patriotic Americans. This was when the editorials were powerful, influential, when senators, governors, and presidential candidates would come as supplicants to John Oakes, desperate for an endorsement. For in those days, the imprimatur of the Times often meant victory.

As I became more comfortable, I would discuss issues with the editors, who were uniformly interesting and brilliant. I began to proofread the pages for typos and other errors, putting to use my years of Catholic education diagramming sentences, learning the difference between a gerund and present participle. I was often queried about events on campus, and I provided a window into a world unfamiliar to the editors, not only of college, but of Brooklyn, where most probably never set foot.

Yet, during these years, the struggle over Vietnam and the soul of the nation led to increasing polarization and violence, culminating in the deaths of four Kent State students, shot by the Ohio National Guard in 1970, followed, 11 days later, by the deaths of two young men who were also shot and killed by police during a Jackson State demonstration. This era also saw the rise of the militant and often violent Weather Underground, three members of which were killed in 1970 when a bomb they were building exploded in a townhouse in Greenwich Village, and the Black Panther Party, which had violent confrontations with police.

The Times’ obsession to end the war and rid the nation of Nixon permeated the editorials. On weekends, I was among the elite, those who demanded an enlightened liberal government of justice, civil rights, and peace. At home, I was with cops, construction workers, and veterans who demanded respect for the law, the flag, the president.

Leaked Documents and the Espionage Act

I was working on Saturday, June 12, 1971, when I first heard of the Pentagon Papers. Actually, these classified “top secret” documents, which the Times was publishing on the front page the next day, were initially termed the “McNamara Papers” by James Reston, a confidant of world leaders and the most influential columnist on the planet. In 1967, Robert McNamara—then secretary of defense (a position he also held in the Kennedy administration) and a primary architect of the Vietnam policy—ordered a study of the origins and decisions that led to the Vietnam War. With a front-page story, the Times was publishing some of the more than 7,000 documents, which had been surreptitiously given to Neil Sheehan, a well-regarded Times reporter, by Daniel Ellsberg, a researcher at the RAND Corporation.

That Saturday afternoon, the composing room was abuzz with excitement about how reporters and editors were holed up in a hotel for weeks secretly working on the story; how these documents exposed the folly of our Vietnam policy; how they revealed the repeated lies of the Johnson administration; how they proved, sadly, that those who died had done so not to save democracy, but for ego and arrogance.

Yet, there was no mention of the divisive debate among the executives at the Times and its lawyers as to whether publishing these classified papers was treasonous and illegal. No mention of how the decision to publish was made only after James Reston threatened to do so in his Martha’s Vineyard weekly, the Vineyard Gazette. No mention of how the Pentagon Papers would transform the Times, the First Amendment, and the relationship between government and the media. No mention of the legal issues that would end in the Supreme Court or how the animosity and conflict between the Nixon administration and the press would lead to Watergate and, three years later in August 1974, to the resignation of President Richard M. Nixon.

For me, it was exciting, fun, for I was a part—minuscule, of course—of something momentous. Even though I was only a copyboy, I was eventually treated as a near equal and later, in 1971, began to freelance—writing stories, taking photos—with my own byline. I worked as a makeup editor on weekends, a demanding and stressful position with the resulting amazement (Hey, kid, where’s the makeup editor?), and, finally, as an editorial writer, encouraged by Oakes, which resulted in two of my editorials being published.

Yet, for all the excitement of that day, the story by Sheehan and the printed documents were somewhat tedious and uneventful. Yeah, the Vietnam War was illegal, immoral. We knew all that. It was only after the Times published a second story and additional documents on Monday, June 14, when it became fascinating. That evening, Attorney General John Mitchell, with the approval of President Nixon, telegrammed the Times advising that continued publication of these “top secret” documents would violate the Espionage Act and “cause irreparable injury to the defense interests of the United States.” In a follow-up call from the White House, the Times was told that if it didn’t cease publication, the United States would seek an injunction. For an excellent inside account of the publication and its aftermath, see Without Fear or Favor: An Uncompromising Look at The New York Times, by Harrison E. Salisbury (Times Books 1980). The first editor of the op-ed page, Salisbury, a Pulitzer Prize winner, was with the Times from 1949 to 1973.

The Legal Struggle

Now that the Times had published a portion of the papers, the issue was whether the Times should agree to the government’s request to cease publication. Lord, Day & Lord, founded in 1845, was long-time counsel to the newspaper with partner Louis Loeb, a celebrated lawyer and confidant of its publishers and editors, having represented the newspaper since 1929. He and Lord Day, led by Herbert Brownell, attorney general in the Eisenhower administration, vehemently opposed publication, arguing that it was unpatriotic and would make the publisher and editors subject to criminal prosecution.

James Goodale, who started his career at Lord Day in 1959, was the Times’ vice president and general counsel and a strong proponent of continuing to publish. But he was young (37) and inexperienced, while Louis Loeb, in his 70s, was past president of the New York City Bar Association and had guided the Times to victory in the Supreme Court case of New York Times v. Sullivan (1964). Loeb demanded that the Times voluntarily cease publication. When the decision was made to reject the government’s request, Loeb and Lord Day quit. This decision, no doubt, contributed to the demise of the Lord Day firm in 1994.

Now Goodale had to scramble to assemble a legal team. He reached out to Alexander Bickel, a Yale professor, who previously worked on a First Amendment case. Goodale told Bickel that he would add Floyd Abrams, a young First Amendment specialist, and his Cahill, Gordon & Reindel firm to provide the necessary depth. Cahill, a brilliant, yet unusual choice was not a white-shoe firm like Lord Day, but a tough, “back alley Irish litigating firm,” as Goodale wrote in his excellent account, Fighting for the PressThe Inside Story of the Pentagon Papers and Other Battles (CUNY Journalism Press 2013).

The government sued, accusing the Times of damaging national security and violating the Espionage Act. The novel issue was one of prior restraint, whether the government could prevent publication of a story through injunction. Judge Murray Gurfein of the Southern District of New York entered a temporary restraining order on Tuesday, June 15, and set trial for Friday, June 18, 1971, to determine if the order should be made a permanent injunction.

Cahill’s Abrams and litigators William Hegerty and Lawrence McKay, along with Bickel, made a formidable team whose skill and argument proved that the government’s objections were based on politics and pretense. At trial, Hegerty’s devastating cross-examination of government witnesses made evident that the statement that the Pentagon Papers damaged national security was patently false. Hegerty’s cross is often cited as a classic, one to be emulated.

On Saturday, June 19, 1971, Gurfein ruled for the Times but kept the temporary restraining order in effect pending appeal. During this time, the Washington Post and the Boston Globe also published some of the Pentagon Papers. Argument before the entire Second Circuit took place on Tuesday, June 22, and a decision was issued the next day, which the Times lost 5–3, remanding the case to Judge Gurfein for a new trial.

The Supreme Court Weighs In

On Thursday, June 24, the Times filed its petition to the Supreme Court, and in a 5–4 decision on Friday, June 25, the Court accepted the case as well as the one involving the Washington Post. After argument on Saturday, June 26, the Court ruled 6–3 in favor of the Times on June 30, 1971. Bickel gave the winning argument for the newspaper. While the Court issued its decision in a brief unsigned per curiam opinion, remarkably all nine justices wrote opinions, six concurring and three dissenting.

Seventeen days elapsed between publication and the Supreme Court decision. Seventeen days of intense and antagonistic legal battles between some of the brightest and most skilled attorneys. The United States had tried to censor the press through a prior restraint order, the first such case in our history. Yet, the First Amendment prevailed over the government’s attempt to control publication. Nixon’s flaw was to allow his hatred of the press to trump common sense. The legal proceedings generated more interest and publicity than the original documents. While decrying the publication of these “top secret” documents, Nixon could have emphasized that it was the Democratic administrations of Kennedy and Johnson that consistently deceived the public and brought about the wasteful and bloody Vietnam War.

In 1996, I interviewed Floyd Abrams, the First Amendment specialist at Cahill, who was instrumental in the Times’ victory (Litigation Vol. 23, No. 1, Fall 1996). He recalled receiving a telephone call at 1 a.m. from James Goodale requesting that he and his firm represent the Times. Believing that his chances of victory were “extremely good” (“Maybe I should have had doubts but I didn’t then”), he immediately went to his office to begin research. He convinced his firm to represent the Times.

Abrams dismissed the Lord Day argument that publishing was unpatriotic. It was of the “highest service to the country to publish this material. I thought that it was precisely what a free press was supposed to do.” This case “served—not disserved—national security. I thought the public should have a chance to read the papers themselves.” He never doubted the validity of his argument, that the First Amendment protected such publication.

Before argument in the Supreme Court, Abrams knew that the Times had four votes—Justices Black, Douglas, Brennan, and Marshall. These four didn’t believe oral argument was necessary; they voted to reverse the continuation of any injunctive relief on the petition itself. As Abrams noted, however, “four was not quite enough.” He described how Bickel, to the dismay of Douglas and Black, may have tempered his argument to ensure that fifth vote. Abrams, who has argued many cases before the Supreme Court, readily admitted that attorneys often make more modest arguments in order to win a case. “I don’t think there is anything ignoble about seeking only what you have to seek to win, as long as you don’t compromise the principles that sent you to court in the first place.” Justices Potter Stewart and Byron White joined in ruling for the Times. Today, this ruling, which established a very high threshold, is usually cited by those opposing prior restraint.

At the Times, the editors and staff were ecstatic. Their enemy was defeated, and even though Nixon won a second term in a landslide in 1972, he eventually resigned in disgrace, validating the editors’ disdain of him and his administration. I continued to work for the editorial department mostly on a part-time basis until 1973, when I began law school. A few years after I was admitted, I was called back by the Times to interview for a reportorial position writing on legal matters. I wasn’t offered the job.

The End of an Era

Yet, the unity of the Pentagon Papers victory ultimately evaporated as the liberal Oakes clashed with the more conservative publisher, Arthur Sulzberger. Even though they were first cousins and Oakes was 64—mandatory retirement was at 65—Sulzberger callously removed Oakes and most of his editors over the endorsement of the Democratic primary between Daniel Patrick Moynihan and Bella Abzug in the 1976 Senate race. Oakes wanted to endorse Abzug while Sulzberger insisted on supporting Moynihan. With the endorsement, Moynihan won a narrow victory in the primary and went on to serve 24 years in the U.S. Senate.

Along with the editors, I was invited to a farewell party—more like a wake—at the magnificent Oakes apartment overlooking the Central Park reservoir. A palpable sadness permeated the room, and pain was obvious in every forced smile. Even though accomplished, influential, and gifted, these men were coldly tossed aside without hesitation or compassion. I felt sorry for them, for their humiliation, for their anguish.

Working at the Times made me a better litigator and, undoubtedly, changed my life. I learned to think, write, and act with purpose and resolve. I learned there’s no excuse for a typo or missed comma, and learned to work under extreme pressure—“C’mon, where are your pages? You’re holding up the whole f*** paper.” I learned to communicate with Rhodes scholars and those who quit 10th grade. I learned that freedom is tenuous and must continually be safeguarded, for even the celebrated American government can be venal, corrupt, and wrong. I learned that life is difficult, often cruel, and that even if you have wealth, prestige, and power, your eyes can tear and your heart can be broken.

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