Deciding to continue publishing the Papers also meant that the Times had to scurry to find new lawyers after seventy-five years with one firm. They were lucky to get Alexander Bickel, a Yale law professor, and a young lawyer, Floyd Abrams, to work with him as litigator. On Tuesday morning, the Times carried the third part of the series, as well as the story of the government’s effort to stop the paper from publishing. Also on Tuesday morning, after an all-night stint by the lawyers, the Times went before Judge Murray Gurfein, who was only in his second day on the bench. Gurfein asked the paper to suspend publishing voluntarily, which the Times refused to do. He then issued a temporary restraining order, setting a hearing for Friday of that week. This was America’s first-ever order for prior restraint of the press.
The last story rewritten from the Times ran in the Post on June 16, my birthday, which I celebrated at dinner with Polly Wisner and Bob McNamara at Joe Alsop’s. That day was also the last on which the Times was free to publish, and the day we received the Papers—a tremendous day for the Post, and for me as well.
Our editors and reporters had been trying desperately to get their hands on the Papers. Ben Bagdikian, the national editor, had guessed that Daniel Ellsberg was the source for them at the Times, and he had been frantically calling Ellsberg. Finally, on the 16th, a friend of Ellsberg’s phoned Bagdikian and asked him to call back from a pay phone. Bagdikian spoke to Ellsberg, who said he would give him the Papers that night. He then returned to the paper and consulted with Gene Patterson—Ben Bradlee was away—asking for assurances that if we got the Papers we would start printing them on Friday morning. Gene said we would but felt Bagdikian should check with Bradlee, which Bagdikian did from the airport. Bradlee’s response, which may be apocryphal but certainly sounds like something Ben would say, was: “If we don’t publish, there’s going to be a new executive editor of The Washington Post.”
Bagdikian then departed for Boston with an empty suitcase, as per instructions. He returned to Washington the next morning with what has been described as “a disorganized mass of photocopied sheets completely out of sequence and with very few page numbers.” The suitcase he’d brought was too small for what he was given, so he loaded the Papers into a big cardboard box and flew back to Washington on a first-class seat, with the box occupying the seat beside him—an additional expense the Post didn’t mind paying.
Bagdikian went straight to Ben Bradlee’s house, rushing past, as Ben later reported, “Marina Bradlee, age ten, tending her lemonade stand outside.” Ben Bradlee had already gathered there several reporters—Chalmers Roberts, Murrey Marder, and Don Oberdorfer among them—and two secretaries to help sort out the mess, as well as Phil Geyelin and Meg Greenfield from the editorial page, and Howard Simons. Chal was two weeks short of retirement, but he and Murrey knew the most about the story, and Chal was the fastest writer on the paper. They were joined at Ben’s house by Roger Clark and Tony Essaye, our principal lawyers since Bill Rogers had left his firm to become secretary of state.
Sorting out the forty-four hundred pages that we had and deciding what to write was more than a day’s chore in itself, and we were also working under the added pressure of knowing that the Times had been enjoined from further publication and that The Washington Post Company was about to go public, with all that that entailed.
I was pleased that we had found the Papers and had them in hand, but I spent the day of June 17 in a rather routine way. I had planned a large party to be held that afternoon at my house for Harry Gladstein, a lovely man who was leaving the Post. He had come to the paper as circulation director but was vice-president and business manager at the time. The whole business staff of the Post was gathered for the party, including Fritz, who had come down to Washington for it but had gone over to Ben’s house to check on things there. As it turned out, a fierce legal battle was being waged.
What Ben experienced as he rushed back and forth between the rooms where the reporters were working and the living room, where the lawyers were conferring, was that the lawyers seemed to be pushing strongly for not publishing, or at least for waiting until there was a decision on the injunction against the Times. Our situation, however, was very different from that of the Times. The court order against them meant that, if we were to publish, our action might be viewed as defying the law and disrespecting the court. Even more difficult than that was the delicacy of our business position. In going public, a company negotiates with its underwriters—in this case a group led by Lazard Frères—and on the day of the offering, everyone agrees on a price and signs an agreement. Our agreement said that in a week the underwriters would buy all the stock from the company and then turn around and resell it to those they’d offered it to in the intervening week. There was a standard stipulation that if any one of a variety of crises—such as a war or national emergency or, more to the point in our case, the company’s being subjected to criminal action—were to intervene, the underwriter would be let out of the contract. We were exposing ourselves to just such a possibility if we published while the Times was enjoined.
In addition, Fritz had written into the original prospectus a paragraph stating that we would publish a newspaper dedicated to the community and national welfare. He now worried that the underwriters could make a case—as indeed the administration was trying to do—that what we were doing was contrary to the national welfare. Fritz had an extraordinary sensitivity to editorial issues and to the editors themselves, both at the Post and at Newsweek, but in this case, as a lawyer, he had to worry about the future of the company. Furthermore, he worried that we could be in trouble under the Espionage Act. He thought the government would be most likely to prosecute the corporation or the company, and if the corporation acquired the status of a felon, we would be stripped of our licenses to own and operate our television stations, adding a huge financial issue to the already high stakes.
So, while in one room at Ben’s house Chal was banging out his story for publication the next day, Murrey was slowly reading through the material, and Don Oberdorfer was working on installments on the late Johnson years, in another room the lawyers, with Fritz and the editors, were locked in tough and tense arguments. Clark and Essaye argued against publication and in favor of letting the Times handle the freedom-of-the-press issue. Fritz seemed to be siding with the lawyers.
Ben was beginning to feel squeezed between the editors and the reporters, who were solidly lined up for publishing and supporting the Times on the issue of freedom of the press, and the lawyers, who at one point suggested a compromise whereby the Post would not publish the Papers on Friday but would notify the attorney general of its intention to publish on Sunday. Howard Simons, who was 100 percent for publishing, summoned the reporters to talk directly with the lawyers. Oberdorfer said the compromise was “the shittiest idea I’ve ever heard.” Roberts said the Post would be “crawling on its belly” to the attorney general; if the Post didn’t publish, he would move his retirement up two weeks, make it a resignation, and publicly accuse the Post of cowardice. Murrey Marder recalled saying, “If the Post doesn’t publish, it will be in much worse shape as an institution than if it does,” since the paper’s “credibility would be destroyed journalistically for being gutless.” Bagdikian reminded the lawyers of the commitment to Ellsberg to publish the Papers and declared, “The only way to assert the right to publish is to publish.”
In the midst of the bedlam, Ben left the room to call his closest friend, Ed Williams, who by now was also a good friend of mine. Ed was in Chicago trying a divorce case, and Ben reached the editor of the Chicago Sun-Times and asked him to send a copy boy down to the court with a message saying he needed to talk to Ed immediately, conveying the idea that this was, as Ben later said, “as serious as anything I’ve ever faced.”
Ed was a great lawyer with a lot of political as well as common sense. The two men talked for perhaps ten minutes, according to Ben, during which Ben, as objectively as he could, told Ed everything that had happened to that
point and then waited for a response. Ed finally said, “Well, Benjy, you’ve got to go with it.”
Gene Patterson’s job that day was to run the newsroom as though nothing were happening. But the people in the newsroom are as good at sniffing out something happening right in their midst as they are at following stories outside. No one could help noticing the absence of Chal, Murrey, and Don Oberdorfer as well as Bagdikian, Howard, and Ben. Certainly something was up. Gene stopped by Ben’s house on his way to my party, and then walked up the hill to my house. As I was receiving guests, he pulled me aside and gave me the first warning of what was to come, saying that he believed the decision on whether to print was going to be checked with me and that he “knew I fully recognized that the soul of the newspaper was at stake.”
“God, do you think it’s coming to that?” I asked. Yes, Gene said, he did.
By now, crucial time was passing. The deadline for the second edition was fast approaching. Jim Daly had come up to me twice at Gladstein’s party, worrying about when we’d get the story and be able to put it into print, and asking if I had yet heard from the other house. I was strangely unconcerned and said I was sure they were just finishing and we would get it in time.
It was a lovely June day, and the party for Harry spilled out of the house onto the terrace and the lawn. I was making a toast to him and going full-blast about how much he had meant to the paper and to me personally when someone tugged at my sleeve and said with some urgency, “You’re wanted on the phone.”
I protested that I had to finish the toast, but the response was, “They want you now.” I finally got the idea that it was really important, wound up the toast quickly, and took the call in a corner of the library. I was sitting on a small sofa near the open door, and Paul Ignatius stood near me. Fritz was on the other end of the line. He told me about the argument between the lawyers and the editors over whether to publish the next day, outlined the reasoning on both sides, and concluded by saying, “I’m afraid you are going to have to decide.”
I asked Fritz for his own view; since he was so editorial-minded and so decent, I knew I could trust his response. I was astonished when he said, “I guess I wouldn’t.” I then asked for time to think it over, saying, “Can’t we talk about this? Why do we have to make up our minds in such haste when the Times took three months to decide?”
At this point, Ben and the editors got on various extensions at Ben’s house. I asked them what the big rush was, suggesting we at least think about this for a day. No, Ben said, it was important to keep up the momentum of publication and not to let a day intervene after getting the story. He also stressed that by this time the grapevine knew we had the Papers. Journalists inside and outside were watching us.
I could tell from the passion of the editors’ views that we were in for big trouble on the editorial floor if we didn’t publish. I well remember Phil Geyelin’s response when I said that deciding to publish could destroy the paper. “Yes,” he agreed, “but there’s more than one way to destroy a newspaper.”
At the same time that the editors were saying, seriatim, “You’ve got to do it,” Paul Ignatius was standing beside me, repeating—each time more insistently—“Wait a day, wait a day.”
I was extremely torn by Fritz’s saying that he wouldn’t publish. I knew him so well, and we had never differed on any important issue; and, after all, he was the lawyer, not I. But I also heard how he said it: he didn’t hammer at me, he didn’t stress the issues related to going public, and he didn’t say the obvious thing—that I would be risking the whole company on this decision. He simply said he guessed he wouldn’t. I felt that, despite his stated opinion, he had somehow left the door open for me to decide on a different course. Frightened and tense, I took a big gulp and said, “Go ahead, go ahead, go ahead. Let’s go. Let’s publish.” And I hung up.
So the decision was made. But later that evening Fritz came over to my house. Roger Clark, still worried, had thought of a new problem: he feared an extra charge of collusion with the Times and wanted to know the source of our obtaining the Papers. Bagdikian by this time had gone to the paper, carrying the last of Chal’s story to set in type. At first Bagdikian maintained that the source was confidential, but when Clark insisted, he identified Ellsberg, the presumed source for the Times, which only increased Clark’s concern about collusion. This time Fritz really helped. I had no idea whether collusion made our situation more vulnerable or not, but Fritz said that we’d made up our minds and should go ahead. I was relieved, and agreed.
Our lawyers by then were behind us and very supportive. In addition, Fritz had Roswell Gilpatric of the Cravath firm down from New York, with whom he was informally consulting, as Ben was with Edward Bennett Williams. The two young lawyers in the Washington branch of our law firm—Royall, Koegel & Wells—sent to New York for a litigator, William Glendon, whom we didn’t know and who was relatively inexperienced with cases like this.
At about 3:00 p.m. Friday, while I happened to be sitting in Ben’s office, a call came from William Rehnquist, then the assistant attorney general for the Department of Justice’s Office of Legal Counsel. Rehnquist read the same message to Ben that he had sent to the Times. Ben told Rehnquist, “I’m sure you will understand that I must respectfully decline.” He also refused to delay the rest of the series pending resolution of the Times’s case in New York. The government promptly filed suit against the Post, a suit that matched the one lodged against the Times, and named as defendants everyone on the masthead of the paper, plus the author of the first article (the one that had appeared on June 18), Chalmers Roberts.
The case was routinely assigned to Judge Gerhard Gesell, a distinguished jurist of a liberal mind. He had helped in the 1954 acquisition of the Times-Herald, at a time when he worked for Covington & Burling and had also been a friend of Phil’s and mine when we were all young, but our paths had gone different ways and I no longer saw him and his wife, Peggy. In fact, Phil had fired him during one of his bad years, which was what enabled Gerry to take the case.
At 8:05 p.m. on June 18, Gesell ruled for the Post, refusing to grant an order restraining the paper from further publication of the series and saying, “The court has before it no precise information suggesting in what respects, if any, the publication of this information will injure” the nation. The court of appeals, to which the government instantly went, ruled for the government at about 1:20 a.m., reversing Gesell’s decision. Fritz was at the court with the lawyers arguing that we had several thousand papers on the street and the plates on the presses. So, at 2:10 a.m., the court agreed with us that the injunction didn’t apply to that night’s paper, and we finished the press run.
Gerry Gesell confided to me after his retirement, “If anybody ever carves anything on my tombstone, they might say I was the only judge out of twenty-nine judges who heard the Pentagon Papers case who never stopped the presses for a minute. The only one. I’ve always taken a little pride in that.” In staying Gesell’s order, the appeals court had also told him to hold a fuller, more detailed hearing on Monday, June 21. Over the weekend, he tried to get a handle on what was behind the case, to get it into some kind of shape to be heard. Because the courthouse was undergoing construction, Gesell held a meeting at his house with some Justice Department officials, telling them to select the ten most damaging things in the Papers and that he would limit the Monday hearing to that list. At some point, a Justice Department lawyer told Gesell that, of course, the defendants—meaning all of us connected with the Post who’d been named in the suit—wouldn’t be present at the hearing; it had to be held in secret. Gesell told him firmly, “We don’t do things that way,” adding, “If that’s the way it’s going to go, I’ll dismiss the case. I won’t even hold a hearing.” He suggested the lawyer call the White House—or, as Gesell put it, “wherever or whoever it was that gave you those instructions”—and tell them he would dismiss the case if that was the condition. The lawyer did call someone and returned to say it would b
e all right to have the defendants present. Finally, the Justice Department lawyers left, leaving the Papers behind. As Gesell later recounted:
They hadn’t been gone but two or three minutes when there was a knock on the door and here were two fellows all in uniform, great big white sashes, or whatever it is, across their uniform, and guns and all this and said, “We’ve come for the Papers.” I said, “I don’t have to give you the Papers. I want to read them.” Well, they said, “You don’t have any security out here; we can’t let you have these Papers.” I said, “I’ve got the best security in the world. I put them under my sofa pillow and you’re not going to have them. You can stay here all night if you want to guard the place, but I’m going to have the Papers.” They disappeared after that.
On Monday, Fritz, Ben, Don and Mary Graham [Graham’s son and daughter-in-law], and I, among others, went into court for the hearing. There was a swarm of press people outside. All the windows of the courtroom were blacked out. At one point as the case proceeded, the government put on the stand an ex–CIA man who had been working in the Pentagon who testified how serious the situation was and that publication of some of these papers would reveal certain war plans of the United States. Gesell didn’t believe this man and called for the general in charge of the war plans to be sent over to testify. He was duly brought in—the quintessential general, bedecked with medals—and as Gesell remembers it, after taking the oath to tell the truth, he stated, “Judge, if anybody thinks these are our war plans, I sure hope they do, because these are entirely out of date.”
The Pentagon Papers Page 3