Those who don’t see the danger in the DOJ probe of the leaks underestimate how far zealous federal prosecutors can carry such an investigation. Prosecutors’ enormous discretionary latitude, derived from the extraordinary range of narrow, broad, and in some instances dangerously vague criminal statutes that control the disclosure of supposed national-security secrets, renders any such investigation dangerous to a free press.
Forget for a moment the fate of leakers who could be subject to prosecution for anything from disseminating stolen government property to mail and wire fraud, espionage, or even to the capital crime of treason. Instead, consider the lot of the paper that had the courage to spotlight the administration’s potentially criminal conduct: it now faces the prospect of criminal indictment. (When asked directly if the investigation extended to the publication of the information, a DOJ official remarked broadly to reporters that he could not comment on any aspect of the investigation.)
There is little reason to suppose that the administration would refrain from indicting the newspaper, its reporters, and its higher-ups unless the political downside was too substantial. Indeed, with undoubted additional deep and dark secrets not yet exposed, one assumes that the administration would like to go beyond terrorizing leakers and reach those who report leaks to the public. Historical and legal precedent that suggests the legal viability of such a prosecution has gone largely unnoticed in the public arena — though not likely at the DOJ.
That precedent comes from the Nixon administration, which contemplated indicting the three newspapers that published excerpts from The Pentagon Papers in the waning years of the Vietnam War — namely the New York Times, the Boston Globe, and the Washington Post — along with some of the individuals involved. Indeed, when the Supreme Court in 1971 turned down the Nixon DOJ’s request for an injunction against publication, there were three justices (Burger, Harlan, and Blackmun) who thought the court should have prevented publication altogether, and three (White, Stewart, and, again, Blackmun) who went out of their way to suggest that the DOJ consider indicting the newspapers after publication. The Nixon administration’s failure to prevent publication, warned justices White, Stewart, and (agreeing in his separate opinion) Blackmun, “does not measure its constitutional entitlement to a conviction for criminal publication.” In other words, although the First Amendment might prevent a prior restraint on publication, this did not mean that publishing was legal or that the publishers could escape criminal prosecution.
The White-Stewart opinion, approved by Blackmun, proceeded to list numerous statutes arguably rendering such publication criminal, including the Espionage Act and a plethora of laws prohibiting communication of documents relating to the national defense, as well as the “willful publication” of any classified information concerning “communication intelligence activities” of the United States. Two justices (Burger and Harlan) did not specifically address the question of post-publication criminal prosecution of the newspapers, but their endorsement of the idea can be inferred from the fact that they approved of an injunction against publication in the first place.
So let’s not kid ourselves: five of the nine justices would have approved of criminal prosecution of the newspapers in the Pentagon Papers case, even though a majority would not authorize a pre-publication injunction. Therefore, this often-touted victory for freedom of the press was in fact quite limited and foreshadowed a battle of monumental proportions.
