[The following is an excerpt from The Second Nixon Administration, 1973-77, by Franklin Pferdfeder, PhD, Barnum Brothers Professor of History at the University of Greater North Dakota.]
President Nixon’s second term began with an unexpected worsening of relations with parts of the press, already ruffled by the 1971 dispute with the New York Times. The second incident had far-reaching political and legal consequences.
The first volume of this history (The First Nixon Administration, 1969-73) provides a detailed account of the “Pentagon Papers” affair. Briefly to recap, a disgruntled employee of the RAND Corporation, one Daniel Ellsberg, illegally photocopied a Defense Department study of the history of US involvement in Vietnam, which included many classified documents.
Ellsberg originally sought to deliver the photocopies to several appointed or elected officials in Washington, all of whom rightly refused to receive the document, and at least one of whom alerted the FBI to a possible breach of national security. Looking into the matter, the FBI checked Ellsberg’s phone records and discovered that he had twice spoken to Neil Sheehan, a reporter for the Times.
FBI agents were therefore assigned to follow Ellsberg, and he was arrested in New York City in February 1971 en route to deliver the illegal photocopies to the Times reporter. The arrest and trial of Ellsberg and Sheehan for conspiracy to violate the Espionage Act aroused considerable opposition in civil liberties circles. However, in their 1972 trial, both were convicted; Ellsberg was sentenced to life imprisonment and Sheehan to five years. (Ellsberg died in prison in a freak electrical accident in 1975.)
Ironically, despite the uproar over the “Pentagon Papers”, the material they contained was apparently not of much importance. President Nixon explained in an interview with Time magazine (October 8, 1976) shortly before the 1976 election:
“We do all sorts of studies on all sorts of things. This one didn’t find anything really wrong with what the Defense Department or the Presidency had done in Vietnam, so I wouldn’t object to publishing the study for that reason. But it made use of many classified documents, and disclosing them would have aided the enemy to kill American boys. And the jury in their trial recognized that.
“Furthermore, making those documents public would have encouraged the enemy to hold out, thinking we were losing our nerve. If that had happened, we would not be as close as we are to concluding an honorable peace in Vietnam, and I am sure Vice-President Agnew will bring that to fruition if he is elected President next month.”
The conflict in 1973 originated in a peculiar incident that had occurred during the 1972 presidential campaign, when several burglars were apprehended late at night in the headquarters of the Democratic National Committee, which were located in the Watergate Hotel in downtown Washington. Democratic politicians of course demanded a thorough investigation, and in fact President Nixon had put the FBI on to the case immediately.
This minor attempted theft began to be blown out of all proportion by a series of articles in the Washington Post written by two ambitious journalists claiming that numerous officials of the Nixon administration were involved in various ways in the burglary. The journalists, soon known as the “Watergate Two”, Bob Woodward and Carl Bernstein, never identified their “source”, whom they nicknamed “Deep Throat” (a reference to a pornographic movie of the time, which indicates that the two journalists viewed their own investigations rather frivolously), but they were apparently taken in by a low-level FBI agent angered about being passed over for promotion.
Whoever within the FBI was providing the leaks – and neither Woodward nor Bernstein ever revealed the source – the Justice Department subpoenaed telephone logs and learned that the journalists were receiving too many calls from somewhere within the FBI. Their arrest resulted in an immediate ending of such calls, even during the brief period when the two journalists were free on bail.
Bernstein and Woodward were called before the grand jury investigating the illegal leaking of information from an FBI investigation. They were jailed for the duration of the grand jury when they refused to identify “Deep Throat.” Later, the grand jury indicted them under the Espionage Act for publishing material that “materially aided the enemy”.
Lawyers for the two journalists demanded to know what enemy was aided by their Washington Post articles, and they were well answered by President Nixon himself, when he said, “An invasion of the headquarters of one of our two great political parties is an act of war against American democracy. We have been attacked, and we will respond, responsibly but firmly, and we will persevere until the enemies of our democracy are defeated.”
When Bernstein and Woodward were sentenced, President Nixon hailed it as “a major victory in the War for Democracy”, and even the editorial in the Washington Post, while not agreeing with the verdict, acknowledged that “democracy means accepting the umpire’s ruling.” The two journalists’ case eventually reached the Supreme Court, which unanimously upheld the lawfulness of their indictment and conviction, using a previously unknown judicial reasoning now famous as “pre-precedent”. The conviction would have been invalid in previous times, the judges said, “but we can see the way things are going and such things will undoubtedly be upheld soon, so why should we try to resist the trend of the times?”
Probably to the relief of both sides, relations between the press and President Nixon were quite calm from that point on, right up to the day he left office on January 20, 1977.
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