Above Photo: Beacon Hill, Boston. Ian Howard/Wikimedia Commons.
This is Part 5 of Consortium News’ multi-part series on the 50th Anniversary of Sen. Mike Gravel obtaining the Pentagon Papers from Daniel Ellsberg and the consequences Gravel faced for revealing the top secret documents in Congress, just hours before the Supreme Court decided the case on June 30, 1971.
In Part One, Gravel brought the Papers to Capitol Hill to make them public by reading them into the Congressional Record. In Part Two, Gravel gets the papers from Ellsberg through an intermediary. Part Three tells the story of Gravel’s emotional reading of the Papers. In Part Four, the Supreme Court decision to vacate the government’s prior restraint opens new legal jeopardy.
The excerpts published here are from the book A Political Odyssey by Sen. Mike Gravel and Joe Lauria (Seven Stories Press). It is Gravel’s story as told to and written by Lauria.
If the press wouldn’t continue publishing the Papers, I would. I sought a commercial publisher for the 4,100-page subcommittee record. Americans had to know the whole story about how government lies ultimately killed more than 58,000 Americans and three million Southeast Asians—just as we need today to expose all the lies about Iraq.
I received many rejections that summer of 1971, including from Harvard University Press and MIT Press. Publishers knew the risk. But Gobin Stair, executive director of Beacon Press in Boston, didn’t care. Like me, he felt the press was letting the public down. He explained Beacon’s motive:
“The public, we feel is entitled to reasonable public disclosure of the material rather than sketchy journalistic synopses. We are undertaking this vital project because we are concerned at how rapidly the American press lost interest in the Pentagon study once the Supreme Court confirmed the public’s right to this information.”
Gobin also attacked his fellow publishers who hadn’t shown similar guts. “In a time when most houses are selling out to larger industrial conglomerates, the corporation and not the publisher is controlling the book trade. We may consider ourselves very fortunate that our press takes a different attitude.”
Nixon’s attitude was to come after us. The idea of a Senator, the press and now a book publisher defying the Executive so incensed the paranoid Nixon that he got personally involved. I never heard this from Gobin, but he told a conference in Boston in October 2002 he ultimately decided to publish after Nixon picked up the phone to threaten him.
“I recognized his voice, and he said, ‘Gobin, we have been investigating you around Boston,’” Stair said, ‘“I hear you are going to do that set of papers by that guy Gravel.’” Gobin recalled: “It was obvious he was going to ask me not to publish it. The result was that as the guy in charge at Beacon, I was in real trouble. To be told by Nixon not to [publish this book], convinced me that it was a book to do.”
An anonymous donor on Long Island gave Beacon a large donation to finance the project. I still don’t know who it was. Beacon announced publication August 17, six weeks after I’d read the Papers. Within a week the Executive was after us. On August 24, my aide Leonard Rodberg was subpoenaed by the grand jury in Boston. I had hired Rodberg to organize the papers the day before I read them. He then helped me by finding Beacon. I had told him he should have immunity as a staff member.
Rodberg had three days to appear in court. He and I immediately moved to quash the subpoena. I filed a separate motion demanding to know what the grand jury wanted to ask him. We believed the Constitution offered us protection from questioning. As with attorney-client privilege, my staff member should be protected from inquiry when helping me conduct legislative acts, such as making that subcommittee reading.
The Constitution’s “speech and debate” clause allows no member of Congress (or, we argued, through his aide) to be investigated for speech within the legislature, no matter what he or she says, even revealing government secrets. The precise language in Article One, Section Six of the Constitution is that members of both Houses:
“Shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”
The clause derived from the 1689 English Bill of Rights. It protected Members of Parliament speaking out against the monarchy while in Parliament. Stuart kings had hauled many MPs into jail for speeches made on the floor. Prohibition against this was written into the Bill after Sir William Williams, speaker of the House of Commons, privately published a House report criticizing the Executive—King Charles II. Williams was fined for libel.
The Bill of Rights then guaranteed freedom of speech and debate in the legislature “for the sake of one…Sir William Williams, who was punished out of Parliament for what he had done in Parliament.” This inclusion in the English Bill of Rights was a milestone in the gradual ascendance of the power of Parliament over the monarchy.
But it remained an issue with Colonial American assemblies, which disputed royal governors over the right to criticize the Crown in assembly. Madison included the clause in the Constitution as a “practical obstacle” to separate the powers.
But centuries later Nixon, like an elected monarch, was still trying to silence a critic of the Executive among the peoples’ representatives who wanted to publish a report. This clause was my only defense in the subcommittee room. It would be my only defense in court. And it would be Rodberg’s too.
The way we read the clause, the Constitution said no one could question me, or an aide, in a court of law, at a police station or anywhere about the legality of what I, or an aide, had said or done in the course of a legislative act. But I was now bringing my protected speech, the Pentagon Papers, from Capitol Hill to Beacon Hill. We weren’t sure what the consequences would be.
While the District Court was considering our motion to quash Rodberg’s subpoena, two Pentagon goons replete with fedoras, trench coats and cigarettes showed up on September 17 at Beacon’s offices in a leafy street on the hill overlooking Boston Common. They tried to intimidate Gobin. They demanded the Papers for military analysts to study. They checked the photocopy machine to see if Ellsberg had used it.
But the tough-guy act failed. Gobin stalled by agreeing to a follow-up meeting but the Pentagon then suddenly dropped the matter. Pentagon counsel Fred Buzhardt was four days later quoted as saying the New York Times ruling had stopped him in the end. (Nashua Telegraph, September 21, 1972 as referenced in Beacon Press and the Pentagon Papers, Allison Trzop.)
On October 4, District Court Judge W. Arthur Garrity Jr. (later famed for ordering racial integration through busing in Boston) denied our motion to quash Rodberg’s subpoena. The prosecutors had even wanted to strip me of protection because they said I had convened an “unauthorized” subcommittee meeting. Garrity rejected this but ruled Rodberg had to testify. The judge said he couldn’t be questioned about anything he did for me on the Hill. But the judge said questions on Beacon were fair game because he said the Constitution did not protect private publication of a subcommittee record. We decided to keep on fighting and brought our case to the U.S. Court of Appeals.
Around this time the Defense Department proved how duplicitous it was. Twelve days before Beacon Press’ publication date the Pentagon published its own, paperback back edition. So much for harming national security. If you can’t beat them, beat them to it. It was pure Nixonian vindictiveness to take the wind out of Beacon’s sails and sales. What he considered stolen property he put on sale at $50 for the 12-volume set. The New York Times had cashed in with its own paperback in mid-July, compiling the reporting it had already published.
I felt some measure of relief a week later when I saw a copy of Beacon’s 4-volume edition for the first time, wrapped with a red, paper band, reading, “Top Secret.” The books were set upon a grand piano at the book party in Washington’s Sheraton-Carlton Hotel. I don’t remember precisely what I uttered at the party, but The Washington Post quoted me the next day as saying:
“I was prepared to give up my Senate seat so that the American people could have these papers. Nothing but my family is dearer to me than my Senate seat—I’ve wanted to be a Senator since I was 12 years old. This [book] is my only pay-off . . . If there’s any question that I’d do it again, I would. I’d do it again and again and again and again.”
Beacon issued 20,000 hardcover and paperback sets of the Senator Gravel Edition of the Pentagon Papers on October 22, 1971.
That’s when the subpoenas really hit the fan.
With the Pentagon’s own edition out, you wouldn’t think they’d be so bothered. But five days later, on October 27, FBI agents entered the New England Merchants Bank to seize records of the Unitarian Universalist Church, Beacon Press’ parent. The bank refused. So the agents went to the grand jury and came back the next day with a subpoena. They wanted to see every check related to the Papers.
I flew up to Boston to protest. With the Church we demanded and got an injunction to stop the FBI. I had just appealed the day before to the U.S. Court of Appeals in the Rodberg case. The court order we got ordered a halt to the FBI probe until the appeals court ruled in our case. The grand jury continued to sit but for the time being could issue no more subpoenas.
Grand Jury Suspended
Sometime that winter, we found out the FBI was back at it again, harassing the bank in violation of the court order. The Appeals Court judge was incensed. He issued an injunction against the grand jury sitting at all. Chuck Fishman, my lawyer at the time, believes it was the first time any American court ever suspended a grand jury.
In January 1972, the Appeals Court reached its decision on Rodberg. It affirmed his immunity from questioning about his work with me in the Capitol. But it went further. The court said that though private publication was not protected by the Constitution, Rodberg had a common law privilege not to be questioned about our dealings with Beacon Press either. The court considered it a legislative act even outside the Capitol.
It was a great victory. Rodberg did not have to testify. That was the objective of five months of legal hassles. But the appeals court said third parties with knowledge of the Beacon deal were not protected and could be questioned, including officers at Beacon itself. Fishman strongly advised me to walk away with the win. We secured Rodberg’s right to not divulge anything about the Pentagon Papers. It was time to go home. But I couldn’t leave Beacon hanging out there, twisting in the breeze.
They had taken a chance with me. They had already received two subpoenas to produce to the grand jury any documents that I or Rodberg had given Beacon—namely the Pentagon Papers. I argued with Fishman that we should take it to the Supreme Court, to get that last bit overturned. He thought I was nuts.
Our argument was settled when the Executive appealed their loss to the Supreme Court. We were going anyway now so we filed suit against the Executive in the highest court too. Nixon wanted to get at Rodberg, among others, to nail Ellsberg. Rodberg of course had plenty to keep quiet about. He had received parts of the Papers from Ellsberg months before I did, which is why we hired him in the first place.
My Supreme Court case became something of a cause célèbre among the fashionable anti-war set. I spent a lot of time in Hollywood in those days, flying out every chance I could get. I admit that though my motives were based on principle I enjoyed the notoriety that my stance had brought me. It is only human. But I worked at not letting it go to my head.
Especially, when Jane Fonda came forward after I released the Papers and wanted to help me defend myself against the Executive attacks. I had only met her once briefly before. She organized a legal defense fundraiser for us at her father’s house in Beverly Hills. There were plenty of stars there, including Henry Fonda and Jackie Cooper. It’s a bit of a blur now. I just remember being the center of attention amongst a crowd of people long used to being in that position. I made a speech against Nixon that got applause. We even raised some money. We needed it. We were making legal preparations to take on the president in the court of last resort.