Nixon unbound
In his authoritative 1972 book, The Papers and the Papers, Sanford J. Ungar concluded that the main reason Nixon and Attorney General John N. Mitchell did not prosecute media targets was because by that time the Watergate scandal had broken. (Disclosure: I represented Ungar during the Pentagon Papers episode.) Nixon was on his way to impeachment or resignation while Mitchell was on his way to indictment and federal prison. Later, Whitney North Seymour, the moderate Republican US attorney for New York at the time of the Pentagon Papers imbroglio, wrote in his autobiography that the DOJ sent emissaries to enlist the cooperation of Seymour’s office in securing an indictment of the newspapers and of individual employees, but that Seymour responded “Not in this District.” Soon thereafter, Watergate came to the rescue.
But it is not far-fetched to assume that the current administration — just as obsessed with secrecy as Nixon’s and equally determined to cover up its derelictions and crimes, and with few if any voices of moderation the likes of Seymour’s — will pick up the cudgel the Nixon team abandoned.
Such an indictment could be brought in short order. It would be unnecessary for the DOJ to complete the leak investigation before indicting media defendants, since the mere publication of the story would be the alleged crime regardless of the identity of the leakers. Nor would the Times’ publisher, editors, and reporters be able to claim ignorance of the top-secret nature of the information published: surely the president and his aides made that very clear at a meeting held with Keller and Sulzberger in the Oval Office last year. Besides, the Times’ voluntary postponement of publication for a year prior to that meeting could readily be spun as indicating knowledge that harm to national interests was possible.
This is not to say that prosecution would be a cakewalk for the DOJ. Although it easily could obtain an indictment, getting a conviction is another story. The media defendants would doubtless be represented by top-flight lawyers — this time, however, by criminal-defense lawyers skilled at convincing ordinary people, rather than First Amendment counsel arguing nice legal points to judges as was the case in the Pentagon Papers conflict as well as in the disastrously unsuccessful Plame “reporter’s privilege” battle. In addition, the case likely would be tried in either New York or Washington, DC, where prosecutors would be confronted with those cities’ famously skeptical and independent — even ornery — jurors, who would be required to agree unanimously in order to convict.
Defense lawyers would doubtless argue, probably effectively, that their clients performed a public service by exposing official wrongdoing at the highest levels of government. Bush would, in effect, be placed on trial, along with the New York Times. One can imagine defense counsel quoting Thomas Jefferson that “between a government without newspapers or newspapers without government, I would surely choose the latter.” It would be one helluva fight — the fight that we never got to see between Nixon and the media.
