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Crimes of the Times
The Pentagon Papers Trial
00:36:40
Smuggled out of a Santa Monica safe, the top-secret documents that changed American history. New episodes every Tuesday. To read more about these cases, visit Crimes of the Times at latimes.com Video episodes will be available on Spotify and Youtube.
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- [00:00]
Christopher Goffard
This is an LA Times Studios podcast. Daniel Ellsberg had been a Marine, a dedicated Cold Warrior and a Pentagon consultant advising the architects of the Vietnam War. He had bought into the premises of the American military effort in Southeast Asia. He wanted to stop the advance of a Stalinist dictatorship. But by October 1969, Ellsberg had become bitterly disillusioned with the war effort and his conscience was eating at him. He had helped to sell a war that he now believed was fueled by lies. President Richard Nixon had taken office that year promising peace with honor in Vietnam. But there was no end in sight. Half a million American troops were in Vietnam that year. Tens of thousands of Americans had died in the conflict and many more Vietnamese. Ellsberg saw the war as a hopeless stalemate which Defense Department officials refused to level with the American people about. Hopeless and interminable, he would call it. Ellsberg was 38 and living in Malibu. He was working as an analyst at the Rand Corporation in Santa Monica, a think tank that advised the government. His position gave him access to top secret documents. One day he opened the safe in his office and slipped a big stack of papers into his briefcase. He knew there was a good chance that what he was doing would land him in prison. He walked past the guards in the lobby waving casually. This was the first batch of 7,000 pages he would ultimately smuggle out. A 47 volume secret government sponsored study of the war that would become known as as the Pentagon Papers. He thought that the American people would demand an end to the war if they could only see them. And he was intent on finding a way to get them in front of the people. Maybe through Congress, maybe through the press. But he had a more immediate problem. This was October 1969. Before Kinkos existed, before Xerox technology was in every office building. Daniel Ellsberg, on the brink of moving the tectonic plates of history, needed to find a copy machine. From LA Times Studios, this is Crimes of the Times. I'm Christopher Goffard. When Daniel Ellsberg went looking for a machine to copy the top secret papers that he hoped would end the Vietnam War, he turned to his friend Anthony Russo, whose girlfriend happened to own an ad agency above a flower shop at Melrose Avenue and Crescent Heights. Her name was Linda Senay. She was an entrepreneur in her 20s, and like Ellsberg, she wanted to see an end to the war. She agreed to let him use her Xerox machine after hours. And it was there that he began the laborious work of photocopying the smuggled documents one by one, day after day, for weeks. A lot has been written about the Pentagon papers, But this particular side story is little known. Linda senay's name is not famous, but the name she later took is Linda resnik. Soon after lending Ellsberg the use of her copy machine, she would marry Stuart resnik, now her business partner in a multi billion dollar empire that includes Fiji water palm, wonderful and wonderful pistachios. I visited Resnick at her home in Beverly hills. So tell me about the circumstances of your life in the late 1960s in Los Angeles. Where were you at that point in your life?
- [03:55]
Linda Resnick
I was divorced. I had two tiny children. I ran an advertising agency that I owned. I had about 13 employees.
- [04:06]
Christopher Goffard
She eventually met and began dating Anthony russo, A former rand employee and a friend of ellsberg's.
- [04:12]
Linda Resnick
He knew I had an 812 copier. It was the size of a volkswagen. And you could put one at a time. I mean, it was horrible, you know, but it was my pride and joy.
- [04:23]
Christopher Goffard
Daniel ellsberg asked to see her at a Belgian waffle restaurant. Anthony wasn't with him, so we went.
- [04:30]
Linda Resnick
I couldn't imagine why Dan wanted to see me alone. And he basically said that he wanted to do something to end the war. And there were these papers that he had in his vault at rand. And he and Tony had cooked up a plan where they were going to take them out, xerox them at night and put them back before anyone came to work the next day. Could they use my xerox machine? Never mentioning that there were what, 43 volumes, how many thousands of pages there were, and that it took three weeks or four weeks. They were labeled top secret. Eyes only security, Every level of security you can think of.
- [05:15]
Christopher Goffard
So he must have really trusted you because he's basically offering to bring you in on a plan that could land him in prison.
- [05:25]
Linda Resnick
And me and you. But he knew where I stood because I was marching. I was working to end the war. I was putting up posters and doing all sorts of things to do what I could. And he offered to pay me 10 cents a copy, which I don't know if he ever did or not. We made a deal.
- [05:48]
Christopher Goffard
Her business was going seven days a week and her employees often worked late.
- [05:53]
Linda Resnick
And they didn't know why. I wanted them to go home at 7 o' clock every night. So we would start as soon as the office closed. And I can't tell you how many times they triggered the alarm Because I never knew how to work it. Dan said, you have no Security clearance. You may not read this, but you may cut and staple. Yes you may. I never read a word.
- [06:17]
Christopher Goffard
Were you ever fearful or what were your emotions?
- [06:20]
Linda Resnick
I was not fearful. I was so excited to do something. We were going to end the war.
- [06:26]
Christopher Goffard
Did you think about the personal risk that you were courting by doing this?
- [06:31]
Linda Resnick
I was so naive. I really didn't. I endangered my children, I endangered myself. But it turned into a nightmare, you know, and then I got very, very frightened.
- [06:48]
Christopher Goffard
After the photocopying, she broke up with Anthony Russo and met Stuart Resnick. Daniel Ellsberg moved to the east coast. And Linda Resnick more or less forgot about what he had done in her ad agency office until I got up.
- [07:03]
Linda Resnick
One morning and opened the LA Times and saw Pentagon Papers. Hmm, we didn't call them the Pentagon Papers. And there was a picture of Dan. And I went, geez, I am toast. And the FBI came to the house at 5:30, I think it was like a week night because they wanted me to appear before the grand jury at 9:30 the next morning.
- [07:33]
Christopher Goffard
She appeared repeatedly before the grand jury.
- [07:36]
Linda Resnick
Dan said, look, I've been on the Dick Cavett show. You're not protecting me. Just say whatever you know. And I did. I didn't know much. There was surveillance. Every time I went to a restaurant there was a buzz cut behind me or in front of me. I'd been in business since I was 19, so by the time I was 25, 26, I had had a lot of freelancers and full time employees. Everyone was interviewed that had anything to do with the Linda Sennet Advertising Agency. I was in therapy and I told my doctor that they were going to come and go through her files and she said I was paranoid. And do you know where her office was?
- [08:32]
Christopher Goffard
It turned out her therapist's office was downstairs From Ellsberg psychiatrist Dr. Lewis Fielding, whose office Nixon's men actually did later break into.
- [08:43]
Linda Resnick
So maybe she thought I was just, you know, acting out or whatever.
- [08:52]
Christopher Goffard
The stress was extreme.
- [08:54]
Linda Resnick
I lost my voice for six months. I was talking like rather a metaphor, wouldn't you say?
- [09:04]
Christopher Goffard
She was an unindicted co conspirator in the case and facing a possible charge of perjury. A prosecutor named David Nissen entered the.
- [09:12]
Linda Resnick
Picture and he was out for blood. And I remember one time he grabbed me by the nap of the neck and drew my face up to his and he said I'm going to get you. I'm going to ruin your life.
- [09:25]
Christopher Goffard
She says he threw her in jail in the drunk tank.
- [09:29]
Linda Resnick
There were drunks all around and I was in a cage and that's where they chose to fingerprint me. But it wasn't just fingerprints. It was palm prints. It was in between each finger, it was all the way up my arm and I was wearing a white summer dress. It was that kind of abuse, you know, it took me years to get over the post traumatic stress syndrome of living this terror for two years.
- [09:58]
Christopher Goffard
Her lawyer told her that her situation was bleak.
- [10:01]
Linda Resnick
He said to me, linda, I'm just telling you, you're going to go to jail for the rest of your life. You're going to lose your children. Nobody can get you out of this. You're done. So that kind of set a pall over my life, I must say. You know, I had another year and a half or whatever for the trial to finally come. It was a horrible time.
- [10:34]
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- [13:08]
Christopher Goffard
When Daniel Ellsberg smuggled 7,000 pages of top secret documents out of his office at the Rand Corporation, he knew the stakes. In his 2002 book, A Memoir of Vietnam and the Pentagon Papers, he wrote, I took it for granted that what I was doing violated some law. The so called Pentagon Papers documented American military decisions across two decades. The paper showed that the Defense Department's optimistic speeches about the war masked much grimmer behind the scenes assessments. They showed that keeping American presidents from the stigma of humiliating defeat was a dominant aim of continuing the war. Ellsberg called it repetitive patterns of internal pessimism and of desperate escalation and deception of the public in the face of what was realistically hopeless stalemate. Ellsberg made copies after hours at Linda Resnick's ad agency office, sometimes bringing his 13 year old son to help. If the government locked him up, as seemed plausible, he would be unable to support his kids. But he viewed the stakes as, quote, larger than me or even my own family. Ellsberg tried to slip the papers to anti war lawmakers, but they balked. So he gave the papers to the New York Times, which began publishing them in June 1971. The Nixon administration was furious and it tried to stop the series, but other newspapers jumped in with their own stories and the US Supreme Court decision affirming the media's right to publish became a First Amendment landmark. Steven Spielberg made a movie about it called the Post. What is much less remembered is the criminal prosecution in Los Angeles of Daniel Ellsberg and Anthony russo. The Nixon white house was in a panic. Nixon's advisors considered Ellsberg a traitor responsible for quote, unquote, an attack on the whole integrity of government and a devastating security breach of the greatest magnitude. This was captured in oval office recordings. Nixon vowed to destroy Ellsberg.
- [15:34]
Charles Nessen
Ellsberg.
- [15:34]
Mark Rosenbaum
We gotta get this son of a bitch.
- [15:40]
Christopher Goffard
The tool he used was the espionage act. Ellsberg faced a possible 115 years in prison and if convicted of conspiracy, espionage and theft of government property. When he and his co defendant Russo went on trial in downtown Los Angeles in 1972, the basic facts of the case were not in dispute. Ellsberg had taken the top secret documents from his safe at rand and leaked them to the press. But there were large questions looming over the trial. Had the disclosures jeopardized national security? Were there circumstances in which the government's zeal for secrecy could be overridden in the public interest?
- [16:32]
Mark Rosenbaum
What was the gist of the defense that you mounted in Los Angeles during the criminal case?
- [16:39]
Christopher Goffard
I'm talking to Charles nessen, who was one of ellsberg's defense attorneys.
- [16:43]
Charles Nessen
There were two legal defenses in particular. One was that everything that he was being charged with was of significance, was in the public domain already. They couldn't really point to anything of any significance that wasn't someplace in the public domain.
- [17:03]
Christopher Goffard
The second defense was that he had not actually stolen the documents. In legal terms.
- [17:09]
Charles Nessen
They were claiming that the information in the Pentagon papers belonged to the United States government. But the fact is that the government doesn't own information. He xeroxed it on Linda sanay's machine and returned the original document to the place from which he got it at random.
- [17:34]
Christopher Goffard
They put historians such as Howard zinn on the stand to give jurors a sense of how the Vietnam conflict evolved as documented by the more than 30 volumes of the Pentagon papers.
- [17:45]
Charles Nessen
And the first one was 1945, Ho Chi Minh in the hills. And Howard took the stand and turned to the jury and told them what was in that first volume. Describing ho chi Minh in the hills and begging Truman to come and assist. As he's telling it, the jury is totally fascinated listening to it. We told the story of the Pentagon papers in a way that the jury had this feeling that they learned something from it and that other people deserved to hear this story. And the idea that he was being punished for releasing this story to the American public just didn't make sense. That was our case.
- [18:49]
Christopher Goffard
I asked nessen why the release of the Pentagon papers was such a Big deal. And if the information they contained was.
- [18:55]
Charles Nessen
Already public, well, it's like the aggregation of the story that was new. Little details that are in the public domain. What does that mean? That doesn't mean that a whole lot of the public knows it. That just means you can find it in some public document. But the fact that the defense department had commissioned this immense study internally, secretly, that put it all together in a way that said this government fully well knows and is aware of the shit that's going down and is keeping it secret from us. That's. That's different than the facts showing up in one newspaper or another somewhere in the archive of the world.
- [19:48]
Christopher Goffard
In other words, the achievement of the Pentagon papers was to put the Vietnam war into a coherent narrative form as its own planners conceived it.
- [19:59]
Charles Nessen
This wasn't somebody selling a story against the defense department. This was the defense department's understanding of its own story.
- [20:15]
Christopher Goffard
Mark Rosenbaum was a Harvard law school student when he took a leave of absence to assist the defense team. He told me that this was the first trial in the country to really examine how the government lied to its people. He said the defense showed that when the government classified material as top secret, it was often an attempt just to suppress politically embarrassing material.
- [20:37]
Mark Rosenbaum
What was so startling about the case was that it did mark the first time that there was a criminal trial which disclosed that the government had lied to its people and the truth was put on trial. And was the first time in the history of the nation that a criminal trial went forward and the defense was America, your government lied to you.
- [21:04]
Christopher Goffard
The defense team believed that Nixon's department of justice wanted the trial to take place on the west coast when where it could find favorable jurors from the aerospace industry, which was heavily dependent on the Pentagon. Rosenbaum recalled that the jury was picked from quote, a lot of retired government employees who seemed hell bent on conviction. But appellate arguments caused a months long delay and a new jury was picked that seemed friendlier to Ellsberg's side. In late April 1973, deep into the trial, U.S. district Judge Matt Byrne, head handed Daniel Ellsberg's attorneys startling reports he had received from the justice Department. The White House directed team of operatives known as the plumbers had broken into the Beverly Hills office of Ellsberg psychiatrist looking for compromising material. When the defense team learned about the burglary, Rosenbaum and another young lawyer got the name of a woman who cleaned the psychiatrist's office and went to her home in east Los Angeles hoping she could identify the burglars Rosenbaum brought along a Time magazine with a photo of Nixon operative G. Gordon Liddy.
- [22:17]
Mark Rosenbaum
We met with this woman who was incredibly gracious to us, these two strangers coming into her home at, I don't know, 12, 1 in the morning. And we show her the picture, her eyes wide. And then she pointed to the picture of Lydia and said, yeah, that's who was there. And we obtained a declaration from her, a statement that that in fact had happened. That really broke things open in terms of how the government was attempting to get Dan's conviction by any means possible, including that sort of illegal action. There's a moment I'll never forget going into her home and showing her this picture of Time magazine.
- [23:04]
Christopher Goffard
There were other revelations damning to the government. The FBI admitted it had captured Ellsberg's voice on wiretap surveillance years earlier and that the transcripts had vanished. But the judge allowed the case to continue. What finally derailed the case was the Nixon administration's unseemly overtures to the judge himself.
- [23:30]
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- [26:33]
Christopher Goffard
Deep into the Pentagon Papers trial, Daniel Ellsberg's defense team learned that the judge presiding over it had recently visited the President's San Clemente home and that Richard Nixon had offered him the job of running the FBI. Judge Matt Byrne acknowledged the San Clemente meeting, but said he rejected the FBI job. Shortly afterward, Ellsberg defense attorney Charles Nessen said he got a call that the judge had been spotted in a park with Nixon, a John Ehrlichman. Nessen said he knew the judge was finally cornered. He told me he saw it as, quote, a kind of capstone to the misbehavior that Ellsberg was disclosing.
- [27:16]
Charles Nessen
I mean, this is like an undercover, as far as I'm concerned, totally illicit kind of deal at the highest level that was being explored to undercut the justice of the trial and the trial process itself somehow by influencing the judge. It's like Nixon bribed the judge or it was at least trying hard to bribe the judge to somehow get a conviction. Seems nobody else was. Yeah, well listen, definitely yes. I mean the fact is, the story of the Pentagon Papers is a story of recklessness.
- [28:09]
Christopher Goffard
Defense attorneys debated whether to spring the information on the judge in court or inform him privately. One of the attorneys, Leonard Wineglass, wanted to spring it, but Nessen opted to call the judge's chambers.
- [28:23]
Charles Nessen
I called his chambers and told him that when we got to court, I got to court, we would be putting this information out and moving for him to dismiss. And that's what we did. And Lenny Wineglass, I think, was pissed off that I had eliminated the opportunity to jump him with the information. But I think it came out basically the same way either way. And I've never really regretted the kind of, I don't know, to me, professional courtesy involved in putting him on notice that he was about to get killed. Effectively. He dismissed the case at that point, again, very reluctantly, but dismissed it with prejudice, which is what we were insistent on. He was trying to persuade us to take a redo, but no, we refused and insisted that he dismissed the case with prejudice. And he did.
- [29:47]
Christopher Goffard
In May 1973, Judge Byrne declared a mistrial and dismissed all charges against Ellsberg and Russo on the basis of government misconduct. The judge said, the bizarre events have incurably infected the prosecution of this case. Jurors came by the downtown LA office that defense attorneys had established. It was clear that many had been in favor of acquittal.
- [30:15]
Mark Rosenbaum
As a reporter, we all learn about the Pentagon Papers decision from the Supreme Court is affirming our right to publish. It's one of the bedrocks of our profession. But I wonder if the criminal case has maybe faded in memory somewhat because the big issues were not resolved. You never had a jury make its. Make its finding right.
- [30:35]
Charles Nessen
There was no verdict. The story is one of misbehavior at a prosecutorial level that's bad enough so that the case gets dismissed.
- [30:46]
Christopher Goffard
Did Ellsberg end the Vietnam War as he had hoped? A historian I spoke to, Timothy Naftali, said no, because the US was out of the war as of January 1973. What is clear is Ellsberg's role in the implosion of President Richard Nixon. The leak of the Pentagon Papers prompted the President's men to break into the psychiatrist's office, a crime Nixon was attempting to cover up. When the Watergate burglary became public, which led to his disgrace and resignation. And as Ellsberg argued in his book, Nixon's preoccupation with the Watergate scandal prevented him from blocking a congressional resolution to halt further bomber that.
- [31:32]
Mark Rosenbaum
We cannot govern this country. You really can't govern this country if a man is not prosecuted for stealing documents. And I don't agree with Barr that it's all that bad. The case isn't going to be tried.
- [31:45]
Charles Nessen
Nixon made Ellsberg the number one enemy of the state. And Ellsberg stood up to him and toe to toe went up against him. And Nixon fell down in the end. Nixon comes down in the end.
- [32:08]
Christopher Goffard
Ellsberg died in 2023 at age 92.
- [32:13]
Charles Nessen
The main thing that sticks in memory is just what an incredibly brave character Ellsberg actually was and continued to be as he lived on after the trial. He was a remarkable man.
- [32:29]
Christopher Goffard
Linda Resnik told me that she testified at the trial and was allowed to leave the country. She said she and her husband were in Paris when they got word the trial was over.
- [32:40]
Linda Resnick
We turned on the TV like in the middle of the night or something, and there was everyone screaming and carrying on. Stuart ran out and got the first edition of the Herald Tribune and it was on the COVID And then we knew that the nightmare was over. It started a domino action that continued until Nixon resigned. I didn't even vote for another, I don't know, 10 or 12 for 15 years. I was so broken. I was so disillusioned with the government. I realized that egos that make these decisions that terrorize the world. But this was an arena that I couldn't. I really had to walk away from.
- [33:33]
Christopher Goffard
Resnick and her husband are well known donors to the Democratic Party. After Joe Biden's disastrous debate performance against Donald Trump in June 2024, she got on the phone and began calling top Democrats around the country pushing for a new candidate at the top of the ticket. Some people were nervous about calling for Biden to step aside. They felt disloyal. They feared consequences.
- [33:57]
Linda Resnick
And then I started calling every senator I knew and governor, do you invoke.
- [34:03]
Christopher Goffard
The Pentagon Papers when you have these conversations?
- [34:09]
Linda Resnick
I had to with a friend of mine who's in Congress who said to me, linda, how can I do this? These are my best friends or my good friends. What would you do in my case? And I said, I did. I did something when I was 25 years old. I never told anyone for 25 years, okay? I never. People were shocked when they found out. I just was scared, you know. Now at 81, what the hell? I'm sure I'm gonna get hate mail from your podcast. I won't read the comments, but I think it's important to talk about. I didn't talk about it. Cause it hurt so much. That's the reason. Not because I was afraid it was gonna hurt my business, because it hurt me. I mean, I was roughed up and I was scared. You know, we never found out if what we did was right or wrong because there was no trial, no verdict.
- [35:20]
Christopher Goffard
By right or wrong, you mean in legal terms?
- [35:22]
Linda Resnick
Yes.
- [35:23]
Christopher Goffard
In moral terms, you're.
- [35:25]
Linda Resnick
I'm clear.
- [35:30]
Christopher Goffard
Mark Rosenbaum, who aided the defense team, told me that now with stricter laws about the release of government secrets, the defendants would not stand much of a chance in co court if the trial were to happen today. Now, he said, the sole burden of the government is to prove the documents in question were classified.
- [35:49]
Mark Rosenbaum
The release of any classified information, whether the classifications were correct at all, whether or not they were being used as a cover up for governmental misconduct. Those laws have all been changed. There would be no defense of the sort of defense that was successful in our case. It wouldn't be clever. The chances of Dan being acquitted would be zero.
- [36:23]
Christopher Goffard
From LA Times Studios, this is Crimes of the Times. To read more about these cases, check out Crimes of the times@latimes.com we also have a link to our video episodes in the show Notes. This episode was written and reported by me. Your host, Christopher Goffard. Our showrunner and senior producer is Jacqueline Kim. Executive editor is Deborah Anderloo. Production assistant is Jordan Patterson. Production services provided by JTB Studios. Our camera technicians and operators are Jeff Amlott, Julian McCabe and Jason Newbert with additional production support from Andrew Gombert, Patrick Stewart and Anne Marie Hauser. Denise Callahan is our studio manager. Ben Church is our production manager. Special thanks to LA Times Studios president Anna Magzanian, President and Chief operating officer of the Los Angeles Times, Chris Argenteri and executive editor of the Los Angeles Times, Terry Tang. Crimes of the Times is executive produced and co created by Darius, Derek, Shawn and me, Christopher Goffard.