In “The Times and the Law,” Power Line provides a link to an article in the Boston Phoenix by Harvey Silverglate, a lawyer who represented several parties in the Pentagon Papers litigation.

What makes Silverglate’s article particularly interesting is that despite his obvious displeasure with the Bush Administration and his assertion that the “warrantless eavesdropping the [New York Times] uncovered is an almost certain violation of Americans’ privacy rights and is very likely a crime, he is equally firm in his belief that

A variety of federal statutes, from the Espionage Act on down, give Bush ample means to prosecute the Times reporters who got the scoop, James Risen and Eric Lichtblau, as well as the staff editors who facilitated publication. Even Executive Editor Bill Keller and Publisher Arthur “Pinch” Sulzberger Jr., could become targets — a startling possibility, just the threat of which would serve as a deterrent to the entire Fourth Estate.

If Bush has the political will to take on the Times,

. . . he could spark a conflagration potentially more destructive to a free press — or to his administration — than Nixon’s 1971 Pentagon Papers machinations, which included efforts to stop publication of the classified study of the Vietnam War, the aborted prosecution of leaker Daniel Ellsberg, and the intention to prosecute newspapers (and their employees) that ran the document.

Noting that the DOJ announcement on December 30 that it had opened a criminal-leak investigation was greeted with only muted criticism from media and civil-liberties circles, Silverglate avers that

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 . . . renders any such investigation dangerous to a free press.

At this point in his article, Silverglate reveals some important details of the Pentagon Papers case:


    . . . 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. [emphasis added]

    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.

Why didn’t the Nixon Administration decide on a post-publication prosecution? In a word: Watergate.