by James Rosen
Mitchell crafted the telegram to the Times, and sent it off shortly after Nixon approved the gesture; final authority over its language, however, belonged to Mitchell. Addressed to Times publisher Arthur Ochs Sulzberger, the telegram read:
I have been advised by the Secretary of Defense that the material published in the New York Times on June 13, 14 1971 captioned “key texts from Pentagon’s Vietnam Study” contains information relating to the national defense of the United States and bears a top secret classification.
As such, publication of this information is directly prohibited by the provisions of the Espionage Law, Title 18, United States Code, Section 793.
Moreover, further publication of information of this character will cause irreparable injury to the defense interests of the United States.
Accordingly, I respectfully request that you publish no further information of this character and advise me that you have made arrangements for the return of these documents to the Department of Defense.
Mitchell’s communiqué left unspoken what consequences would befall the Times if it continued publishing the Papers, but the attorney general’s invocation of the espionage statute left little doubt what he had in mind. The Times’ senior management split on whether to continue with further installments. When publisher Sulzberger weighed in from London with permission to publish a third installment, the Times responded to Mitchell’s telegram with a terse public statement:
We have received the telegram from the attorney general asking the Times to cease further publication of the Pentagon’s Vietnam study. The Times must respectfully decline the request of the attorney general, believing it is in the interest of the people of this country to be informed of the material contained in this series.
That night, the Times’ Tuesday edition rolled off the presses, its front page featuring Sheehan’s third installment, headlined: “Vietnam Archive: Study Tells How Johnson Secretly Opened Way to Ground Combat.” But that was not the paper’s lead story; that holy real estate, four columns across, was reserved for the headline topping Max Frankel’s piece: “Mitchell Seeks to Halt Series on Vietnam but Times Refuses.” A newspaper series documenting the duplicitous conduct of the Vietnam War by the Kennedy and Johnson administrations had now been transformed into what Mitchell would later call a “monumental lawsuit” over the scope of press freedom, pitting the Nixon administration against the world’s most influential newspaper. Mitchell’s central role in the legal battle over the Pentagon Papers cemented his image as the supreme authoritarian of modern times, the keeper of evil secrets and enforcer of unjust laws. Yet in the ensuing blur of motions, injunctions, and rulings—amidst which selections from the Papers were published by seventeen other newspapers, only three of them enjoined by the government, and in which the U.S. Supreme Court would ultimately rule in favor of continued publication—Mitchell played virtually no day-to-day role. Where the attorney general did remain deeply immersed was in the investigation to determine responsibility for the leak—and in the daily assuagement of his high-strung client.
The Pentagon Papers excited Richard Nixon’s passions and prejudices like no other event of his presidency. That Daniel Ellsberg, the culprit, was a creature of Harvard University and the liberal think tanks; that he had been a Kissinger protégé and a confidant of those disloyalistas purged from Kissinger’s office, like Mort Halperin, on whose residential wiretap FBI agents had overheard Ellsberg’s voice no less than fifteen times; and that Ellsberg was, by his own description, a Jew, like Halperin and Leslie Gelb, who had actually overseen the preparation of the Pentagon Papers; all this proved too much for Nixon to bear. Finally, when DOJ reported that a set of the Papers had reached the Soviet embassy, the affair served to crystallize a quarter century of Nixon’s deepest beliefs and fears: namely, that there existed a vast left-wing conspiracy, in and out of government, led by Jewish intellectuals and their handmaidens in academia, the news media, and hostile think tanks, that was bent on destroying postwar America and Nixon himself.
Throughout the affair, the president alternated between strategizing how best to exploit the leak for partisan advantage, demanding Ellsberg’s head, and decrying the deviousness and disloyalty of the Jews. “Can you haul in that son-of-a-bitch Ellsberg right away?” Nixon asked Mitchell three days into the Times series. Nailing the antiwar intellectual, who spent ten days underground before surrendering to authorities in Boston, consumed Nixon as wholly as the pursuit of Alger Hiss, the Soviet spy, had a generation earlier. “What we’re up against here is an enemy worse than the Communists,” Nixon told Haldeman and Kissinger on July 1. And in Nixon’s mind, both cold war menaces, the communists and the antiwar left, shared a common, defining element: the Jews. Day after day, the president of the United States sat in the White House and stewed in the basest anti-Semitism: There was Frankel, “that damn Jew,” and the culprit, derisively tagged “Ellstein,” elsewhere referred to simply as “the Jew.”36
With Mitchell, however, the president was careful to express his anti-Semitism in guarded terms, even apologetically. “You can never put, John, any [judge] who is a Jew on a civil rights case, or freedom-of-the-press kind of case, and get even a 10 percent chance [of a favorable ruling],” he told Mitchell on June 22, after an adverse ruling by a Jewish judge. “Basically, who the hell are these people that stole the papers? It’s too bad. I’m sorry. I was hoping one of them would be a Gentile. [Laughter]…The three Jews—Gelb—the three suspects. All Jews.” Nixon’s apology for his anti-Semitism here was unique; no other example of such an expression can be heard on the Nixon tapes. And Mitchell, so far as can be ascertained from the thousands of pages of White House tape transcripts that have entered the public domain, never responded in kind—as other advisers, like Haldeman, Charles Colson, and Ron Ziegler, often did.
Indeed, it was during the Pentagon Papers crisis that Mitchell’s aquiline demeanor began, for the first time, to bother the president. On the evening of June 19, after a federal judge granted an initial injunction against the Times—a historic order, the first time in American history a court had stopped a newspaper from publishing an article—Nixon called Mitchell to emphasize that while litigation was fine enough, paramount importance lay in pressing the administration’s case in the court of public opinion. “Get some strong language, like ‘a massive breach of security,’ things of that sort…in the public mind,” the president said. “We’re not just interested in making the technical case for the lawyers…. Use some really high-flown adjectives.” Mitchell agreed, assuring the president—with open sarcasm—that all court filings would be cleared through the White House, “so your phrase-coiners and word-makers can get a crack at it.” It was Mitchell’s way of saying: The attorney general would mind the law; Nixon and his junior ad men could tinker with adjectives.
But the president thought Mitchell missed the point, failed to grasp the lessons of the Hiss case. “Don’t worry about [Ellsberg’s] trial,” Nixon ordered the attorney general on June 30. “Just get everything out. Try him in the press. Try him in the press. Everything, John, that there is on the investigation—get it out, leak it out. We want to destroy him in the press. Press. Is that clear?” The following morning, Nixon complained to Haldeman and Kissinger that Mitchell lacked the necessary ruthlessness to handle the case. “We won the Hiss case in the papers,” the president explained.
I had to leak stuff all over the place. John Mitchell doesn’t understand that sort of thing. He’s a good lawyer. It’s hard to him…. But what I mean is we have to develop a new program, a program for leaking out information. We’re destroying these people in the papers…. I know how to play this game and we’re going to start playing it.37
The following day, Nixon’s dissatisfaction reached its apex, as the president ordered Mitchell excluded from a strategy session on the Pentagon Papers—“he doesn’t see it clearly”—and spoke longingly of a glorious future unburdened by his upright former law partner, campaign manager, and cabinet h
eavyweight. “Actually, when Mitchell leaves as attorney general,” Nixon told Haldeman, “we’re going to be better off in my view…. John is just too damn good a lawyer, you know. He’s a good, strong lawyer. It just repels him to do these horrible things, but they’ve got to be done.”38
Horrible things—including the burglary and ransacking of Ellsberg’s psychiatrist’s office—were not far off. The burglary was the work of the White House Special Investigations Unit, better known as “the Plumbers,” a team of leak-plugging covert operatives assembled, on Nixon’s order, following the sluggish performance in the investigation of the Pentagon Papers by J. Edgar Hoover and the FBI. As Nixon later confirmed, Mitchell opposed the Plumbers’ creation; nor did he learn of their break-in at the Los Angeles office of Dr. Lewis Fielding, Ellsberg’s former psychiatrist, until June 1972, some nine months after the fact.39 Just two weeks after the break-in, Mitchell displayed his ignorance of the Plumbers’ ongoing operations, but also his tolerance for “a little bit of dirty tricks,” in an Oval Office strategy session with Nixon, Haldeman, Ehrlichman, and Colson. The group was discussing Nixon’s demand to “hang FDR and Truman” via swift declassification of incriminating old documents.
EHRLICHMAN: God, there’s a ton of paper in this crazy thing…. It’s a life’s work….[T]o go through this stuff is nearly impossible…
NIXON: I don’t understand it. And we just don’t have anybody worth a damn fighting our side of it. I have to go up to bat all the time myself.
MITCHELL: Can we get somebody that could devote full time to this project that’s knowledgeable?
NIXON: We have that.
EHRLICHMAN: We do have that, John, and we’ve got [Plumbers supervisors] Bud Krogh and Dave Young virtually full time on this with three other people. […]
MITCHELL: John Ehrlichman was talking about somebody that’s on our side 100 percent, is knowledgeable about foreign affairs, could devote his whole time to this thing and has a little bit of dirty tricks to play.
HALDEMAN: David Young?
MITCHELL: Well, Young is off the NSC staff and knows where all the bodies are buried in that group…
EHRLICHMAN: Well, we have a couple of fellows under Krogh—Liddy and Hunt—who know what they’re doing and have been around.40
As mention of Liddy and Hunt portended, publication of the Pentagon Papers marked a watershed in the Nixon presidency. Leaks were now at the very top of the president’s agenda. The White House adopted a “reverse of the legal burden of proof,” under which, as Haldeman aide Gordon Strachan later testified, “You had to be able to establish that you were not the source of the leak.” The summer of 1971 also brought Nixon’s first wish for Mitchell’s replacement at Justice. The problem was not Mitchell’s intelligence, diligence, or loyalty—all beyond question—but, rather, his innate civility, his reverence for the law, his opposition to the Plumbers, and his reluctance to use raw investigative data to smear Ellsberg in the press.41
Nixon always assumed left-wing bureaucrats, opposed to his conduct of the Vietnam War, were to blame for the steady stream of damning, damaging leaks, and that his attorney general had become a liability in the battle to stop them. But the next major leak crisis to bedevil the administration, the most serious of all, revealed Nixon was wrong in both assumptions. It was not the liberal left that was most actively sabotaging his national security policies, but the conservative right; not lowly pencil pushers buried in the civilian bureaucracy, but the most senior uniformed commanders at the Pentagon. And when the eyes of the commander-in-chief were opened to this astonishing revelation, it was Mitchell who again emerged as the indispensable figure, the strong man of the Nixon presidency.
At 6:09 p.m. on December 21, 1971, the president summoned Mitchell for an extremely rare—and tense—evening session in the Oval Office. Also present were Haldeman and Ehrlichman. The men had gathered to discuss a crisis unique in American history—“a federal offense of the highest order,” as Nixon termed it that night. Just days before, Navy Yeoman Charles Radford, a lanky young stenographer attached to the Joint Chiefs of Staff (JCS) liaison office with the NSC, had confessed to a Defense Department interrogator that, for more than a year, he had been passing thousands of top-secret NSC documents to his superiors at the Pentagon. Radford had obtained the documents by systematically rifling burn bags, interoffice envelopes, even the briefcases of Kissinger and Haig. According to the yeoman, he had given the documents to his supervisors, two admirals, who had in turn passed them to Admiral Thomas H. Moorer, chairman of the Joint Chiefs, and occasionally to Admiral Elmo Zumwalt, the chief of naval operations, among others. It was, in short, an unprecedented case of internal espionage at the highest levels—in wartime.42
Like so much of the internecine intrigue of the Watergate era, the military spying had its origins in the Kennedy-Johnson years. Kennedy and the Joint Chiefs developed a mutual distrust after the Cuban Missile Crisis, as documented on Kennedy’s own White House tapes; and LBJ, in the early stages of the Vietnam War, made a virtual science of circumventing the chiefs. By August 1967, they bordered on mutiny: After Secretary of Defense Robert McNamara sharply undercut the chiefs in congressional testimony, they met “in complete secrecy, late into the night,” to plot retaliation. JCS chairman Earle Wheeler advocated resignation en masse; the others agreed. Only with Wheeler’s withdrawal, amid acute chest pains, did the plot, undisclosed until the 1980s, collapse.43
By decade’s end, the chiefs had come to regard their NSC liaison office, with its perch inside the White House complex, as a kind of intelligence asset, a means through which the brass could monitor national security policymaking in successive, and increasingly secretive, administrations. Even before the end of the Johnson presidency, the liaison office was being used for clandestine purposes, “doing end-runs around the secretary of state and secretary of defense…sometimes the whole Cabinet and national security structure,” Mel Laird recalled. “I don’t think Clark Clifford or McNamara really realized it, but I knew what they were doing, because…I had a lot of friends in the military that had warned me about it.”44
In April 1970, Nixon elevated Admiral Moorer, a fifty-eight-year-old native of Mt. Willing, Alabama, to chairman of the Joint Chiefs. High school valedictorian and Naval Academy graduate, Moorer was a cocksure aviator whose early career, in the thirties, saw him piloting fighter planes off the decks of aircraft carriers. On December 7, 1941, Lieutenant Moorer was serving with Patrol Squadron 22 at Pearl Harbor, one of the few pilots that dark day to get a plane into the air. He drew as the attack’s central lesson: “Why didn’t you buy more defense?” Decorated for valor in combat, Moorer swiftly ascended through the ranks, making admiral and becoming head of the Pacific Fleet by 1964. He also tended toward insubordination, criticizing his superiors in memoranda and meetings. When he publicly called Vietnam a “dirty little war,” the Johnson White House rebuked him.45
As JCS chairman under Nixon and Kissinger, Moorer only hardened in his view of the civilian command. According to a Defense Department study, the chairman “often found his and the chiefs’ advice disregarded by the president and the secretary of defense.” It is true that Moorer helped Nixon and Kissinger direct the 1970 Cambodian operation, and backed their decision, in February 1971, to provide tactical support for missions in Laos. Moorer also orchestrated the mining of Haiphong Harbor in May 1972 and the subsequent “Christmas bombing” of the North. Yet Nixon and Kissinger only intermittently included Moorer and the chiefs in planning, something on which the generals and admirals, conditioned by Kennedy and Johnson, had already reckoned. Enlisted in devious end-runs around others, like Laird, the chiefs knew better than to imagine they were not also being played.46
And for what? Despite Nixon’s reputation as a staunch anticommunist, his foreign policy as president—withdrawal from Vietnam, engagement with China, détente with the Soviets—alarmed the chiefs, as did the heavy hand of Kissinger. Admiral Zumwalt saw Kissinger as a dangerous appeaser who
believed “the dynamics of history are on the side of the Soviet Union [and] that before long the USSR will be the only superpower on earth.” Certain facts on the ground fueled this alarmism. Every day of the Nixon presidency, it seemed, fresh headlines heralded the Soviets’ ascendancy in strategic weapons production, and Washington’s attendant retreat from postwar hegemony. “American Power Margin Is Slipping” cried the Washington Post. “Parity” became the era’s grim watchword.
Nixon, for his part, grew to despise the brass. More than once, he angrily shouted at Moorer—unusual for this commander-in-chief, who invariably shrank from personal confrontation—and expressed contempt for the chairman’s slipperiness in war planning sessions. “I don’t want any more of this crap about the fact that we couldn’t hit this target or that one!” Nixon thundered at one point. “Goddamn it, the military, they’re a bunch of greedy bastards!” he ranted in April 1971. “They want more officers’ clubs and more men to shine their shoes. The sons of bitches are not interested in this country.”47
From this long-simmering cauldron of suspicion and deceit bubbled the high-stakes espionage case that drew Mitchell, Haldeman, and Ehrlichman to the Oval Office on the chilly evening of December 21, 1971. The matter had begun a week earlier, as yet another leak investigation. Syndicated columnist Jack Anderson, a thorn in Nixon’s side since the fifties, had published a series of columns detailing the deliberations of the Washington Special Action Group (WSAG), an elite crisis management group comprised of senior State, Defense, and CIA officials, and chaired by Kissinger. The group had been weighing options for U.S. action on the Asian subcontinent, where chronic tensions between India and Pakistan had erupted into full-scale war. Personally distrustful of Indira Gandhi, the Indian prime minister, the president had secretly ordered Kissinger, despite public professions of neutrality, to find ways to bolster Islamabad, which had used its good back-channel offices to foster Nixon’s opening to China.48
