Daniel Ellsberg - Trial and Mistrial

Trial and Mistrial

On June 28, 1971, two days before a Supreme Court ruling saying that a federal judge had ruled incorrectly about the right of the New York Times to publish the Pentagon Papers, Ellsberg publicly surrendered to the United States Attorney's Office for the District of Massachusetts in Boston. In admitting to giving the documents to the press, Ellsberg said:

I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.

He and Russo faced charges under the Espionage Act of 1917 and other charges including theft and conspiracy, carrying a total maximum sentence of 115 years. Their trial commenced in Los Angeles on January 3, 1973, presided over by U.S. District Judge William Matthew Byrne, Jr.

On April 26, the break-in of Fielding's office was revealed to the court in a memo to Judge Byrne, who then ordered it to be shared with the defense.

On May 9, further evidence of illegal wiretapping against Ellsberg was revealed in court. The FBI had recorded numerous conversations between Morton Halperin and Ellsberg without a court order, and furthermore the prosecution had failed to share this evidence with the defense. During the trial, Byrne also revealed that he personally met twice with John Ehrlichman, who offered him directorship of the FBI. Byrne said he refused to consider the offer while the Ellsberg case was pending, though he was criticized for even agreeing to meet with Ehrlichman during the case.

Due to the gross governmental misconduct and illegal evidence gathering, and the defense by Leonard Boudin and Harvard Law School professor Charles Nesson, Judge Byrne dismissed all charges against Ellsberg and Russo on May 11, 1973 after the government claimed it had lost records of wiretapping against Ellsberg. Byrne ruled: "The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice. The bizarre events have incurably infected the prosecution of this case."

As a result of the revelation of the Fielding break-in during the trial, John Ehrlichman, H R Haldeman, Richard Kleindienst and John Dean were forced out of office on April 30, and all would later be convicted of crimes related to the Watergate scandal. Egil Krogh later pleaded guilty to conspiracy, and White House counsel Charles Colson pleaded no contest for obstruction of justice in the burglary. "The court concluded that Nixon, Mitchell, and Haldeman had violated the Halperins' Fourth Amendment rights, but not the terms of Title III. The Halperins were awarded $1 in nominal damages in August 1977."

Ellsberg later claimed that after his trial ended, Watergate prosecutor William H. Merrill informed him of an aborted plot by Liddy and the "plumbers" to have 12 Cuban-Americans who had previously worked for the CIA to "totally incapacitate" Ellsberg as he appeared at a public rally, though it is unclear whether that meant to assassinate Ellsberg or merely to hospitalize him. In his autobiography, Liddy describes an "Ellsberg neutralization proposal" originating from Howard Hunt, which involved drugging Ellsberg with LSD, by dissolving it in his soup, at a fund-raising dinner in Washington in order to "have Ellsberg incoherent by the time he was to speak" and thus "make him appear a near burnt-out drug case" and "discredit him". The plot involved waiters from the Miami Cuban community. According to Liddy, when the plan was finally approved, "there was no longer enough lead time to get the Cuban waiters up from their Miami hotels and into place in the Washington Hotel where the dinner was to take place" and the plan was "put into abeyance pending another opportunity".