IN FEBRUARY 1973, after eight and a half years as a prisoner of war, Everett Alvarez was finally set free. Alvarez was with the first group of American pilots driven by bus to the Hanoi airport. Through the window, he watched an enormous U.S. Air Force jet descending toward the runway.
“There it is!” someone in the bus shouted. “There it is, guys!”
“Man, what a beautiful sight!”
Alvarez was fighting back tears as he boarded the plane. The jet engines roared and the cabin bounced as they picked up speed, and the moment they felt themselves lifted into the air, the men cheered and slapped each other on the back. Many cried. The plane flew southeast over the Gulf of Tonkin, landing four hours later at Clark Air Force Base in the Philippines.
A crowd of thousands greeted the men at the American base. Flags waved and film cameras rolled, and a military band played as the pilots stepped out of the plane and began walking down a stairway onto a red carpet. They came off in the order they’d been shot down.
February 12, 1973. U.S. prisoners of war are released in Hanoi and turned over to the U.S. military.
An American admiral stood on the carpet, waiting to greet the men. Alvarez walked up to him, saluted, and said, “Lieutenant J. G. Everett Alvarez, Jr., reporting back, sir!”
* * *
The Ellsberg trial continued in Los Angeles. The typical day in the courtroom lasted from nine thirty in the morning until five o’clock in the afternoon. Patricia Ellsberg never left her front row seat.
“When things are going well,” noted a New York Times reporter, “she and her husband constantly smile at each other.” At other times, Daniel Ellsberg hunched over a legal pad, making notes for his lawyers.
The days were long and the atmosphere tense. Tony Russo lightened the mood with an occasional wisecrack—he interrupted one long stretch of testimony by calling out:
“That’s the only thing of substance that’s been said all day.”
Judge Byrne informed Russo’s lawyer that such observations were not helpful.
The prosecution wrapped its case on day thirty-six of the trial. Russo took the stand and testified that it had been “an honor” to help Ellsberg copy the Pentagon Papers. “Any American who knew what we did,” he said, “would consider it his official duty to get the Papers to Congress and the American people.”
The jury was to disregard that remark also, Judge Byrne declared.
The spectator’s benches were packed tighter than ever on day sixty-eight, when Daniel Ellsberg finally took the stand. Ellsberg’s father had flown in from Detroit and was in the courtroom. Robert and Mary were there to support their father.
Ellsberg had been losing weight steadily throughout the trial. Reporters thought he looked drawn and anxious. Courtroom artists complained that his restless gestures in the witness box made it impossible to get a good sketch.
Speaking almost in a whisper at first, Ellsberg told the jury he had been a hawk when the Vietnam War began. He detailed his role in helping to plan the early bombing campaigns, and told how two years in Vietnam had changed his views. He described scenes of devastation—forests turned to deserts by American chemicals, villages burning, children wounded by American bombs. He described the time he had watched a young girl poking through the wreckage of her home, lifting the charred remains of her doll.
When the court recessed for lunch, Ellsberg walked to the defense table, fell into a chair, and sobbed. Patricia came up and sat beside him.
* * *
On April 5, during a break in the trial, Judge Matthew Byrne strolled along a bluff overlooking the Pacific Ocean at Richard Nixon’s San Clemente home. Beside him walked John Ehrlichman.
“If at any time what I’m saying makes it awkward or embarrassing for you, just turn around and leave,” said Ehrlichman. “I’ll understand and we can talk later instead.”
Byrne told him to go ahead.
Ehrlichman said that Nixon was beginning the search for a new man to head the FBI. He wanted to know, on behalf of the president, if Byrne might be interested.
Yes, the judge said, it sounded intriguing. Ehrlichman promised to pass this on to the president.
Byrne may or may not have recognized this for what it was—a brazen attempt to win influence with him. Nixon’s Watergate cover-up was wobbling. With Hunt and Liddy convicted, reporters and prosecutors were looking higher, wondering who had issued their marching orders. Eventually, Nixon knew, someone would crack. Someone would talk about the Ellsberg break-in. If that happened, the Watergate prosecutors would be obliged to inform Judge Byrne, and it would be up to Byrne to decide whether to admit this evidence into Ellsberg’s trial.
Byrne, of course, should have walked away. Instead, the day after his visit to San Clemente, he called Ehrlichman to ask for another meeting. They talked that afternoon in a Santa Monica park. Byrne explained that he just wanted to reiterate his strong interest in the FBI job.
They agreed to stay in touch as the Ellsberg trial neared its conclusion.
* * *
Nixon’s fears played out as expected. Hoping to avoid jail, White House lawyer John Dean broke the Watergate investigation wide open by agreeing to tell prosecutors about the massive campaign of political spying and sabotage run from the White House and Nixon’s reelection campaign. Dean, who had helped organize the cover-up, described the Plumbers and the Ellsberg break-in. He admitted to destroying evidence and arranging “hush money” to be funneled from the White House to Hunt and Liddy—cash in exchange for their silence.
Nixon got on the phone to Assistant Attorney General Henry Petersen, who was heading the Watergate investigation.
“I know about that,” Nixon said of the Ellsberg job, “and it is so involved with national security that I don’t want it opened up. Keep the hell out of it!”
He hung up.
“That should keep them out of it,” Nixon told Ehrlichman. “There is no reason for them to get into that. What those fellows did was no crime. They ought to get a medal for going after Ellsberg.”
It didn’t work.
* * *
On April 27, day eighty of the trial, Judge Byrne called Daniel Ellsberg and Tony Russo to the bench. Attorneys from both sides huddled behind them, out of earshot of the press.
In a lowered voice, Byrne explained that he had just been sent a copy of a memo written by one of the Watergate prosecutors to Assistant Attorney General Petersen. “This is to inform you,” Byrne read from the paper, “that on Sunday, April 15, 1973, I received information that at a date unspecified, Gordon Liddy and Howard Hunt burglarized the offices of a psychiatrist of Daniel Ellsberg to obtain the psychiatrist’s files relating to Ellsberg.”
Russo, facing the judge, put his hand behind his back and flashed a stealthy thumbs-up to the courtroom.
Byrne handed the memo to the defense team.
“Mr. Ellsberg,” he said, “I don’t need to reveal this information publicly.”
Ellsberg realized he’d face personal questions about why he’d been seeing a psychiatrist. It was worth it. “Are you kidding? Put it out!”
Everyone returned to their seats. Judge Byrne announced the news. The reporters jumped up and sprinted for the pay phones in the hall.
“I wish I could say as a citizen that I’m surprised,” Ellsberg said outside the courthouse. “How can I be surprised just because the administration breaks the law?”
* * *
Nixon addressed the nation on television on April 30.
“Today, in one of the most difficult decisions of my presidency, I accepted the resignations of two of my closest associates in the White House—Bob Haldeman and John Ehrlichman—two of the finest public servants it has been my privilege to know.”
“Accepted” is not precisely correct. Privately, in another desperate attempt to cauterize the Watergate wound before it spread all the way to the president, Nixon had pressured his two closest aides to step down.
That same day, the Washington Star-News printed the news that Judge Mathew Byrne of the Daniel Ellsberg trial had recently met with John Ehrlichman to discuss a high-level government appointment.
Who had leaked the story? That was never determined, but not many people knew of the meeting. Suffice it to say, it hadn’t come from the judge.
* * *
Judge Byrne, looking nervous and pale, announced that he had a statement to make. The crowded courtroom was absolutely silent.
Byrne described his meeting with Ehrlichman. He assured all parties that there had been no discussion of the details of the Ellsberg trial. He did not mention the second meeting he had requested.
The defense team attacked immediately. “The White House, by initiating this meeting, has irretrievably compromised the court,” declared Ellsberg’s lawyer in a motion to dismiss the charges.
Visibly shaken, Judge Byrne ruled that the trial would continue.
But the stunning revelations kept coming. Just days after stepping down, John Ehrlichman told federal investigators that the Ellsberg break-in was not merely the work of Hunt and Liddy, but part of a White House investigation ordered by President Nixon.
“The conduct of the President,” argued the defense team, “has compromised the judiciary to the point where a fair trial is impossible, now or in the future.”
Ellsberg’s and Russo’s lawyers again pressed Byrne to throw out the charges. The prosecutor rejected this argument, assuring the court no tainted evidence was needed to prove the defendants’ guilt.
Again, Byrne ruled that the trial would continue.
* * *
On May 8, Ellsberg stepped out of the courtroom during a recess to pick up a newspaper. There were none available. To keep jurors from being influenced by the sensational Watergate headlines, Judge Byrne had ordered all newspaper boxes removed from the streets around the courthouse.
Ellsberg went into a saloon, where someone recognized him and shouted his name. A man at the bar told Ellsberg that when his trial began, local bookmakers had set the odds at four-to-one in favor of the prosecution. Then, when the story of the Fielding break-in came out, the odds swung to three-to-one in Ellsberg’s favor. And now no one was betting against Ellsberg at any odds.
His chances seemed to improve again on May 10, when the FBI revealed the bugging that been done, at Kissinger’s orders, on the phones of his assistants. Judge Byrne was told that a listening device on Mort Halperin’s phone had picked up several conversations with Daniel Ellsberg. The records of those calls, the FBI explained, had been given to the White House and had since disappeared.
Byrne was livid at this additional evidence of government misconduct. He told the defense team he would listen again to their argument for dismissal.
In the White House, Nixon seethed. “We have the rocky situation where the sonofabitching thief is made a national hero and is going to get off on a mistrial,” he told an aide. “And the New York Times gets a Pulitzer Prize for stealing documents.… They’re trying to get at us with thieves. What in the name of God have we come to?”
* * *
The courtroom was packed on the afternoon of May 11. Extra chairs had been set up along the wall, and a crowd of people unable to get seats stood in the hall, craning their necks to see in. The jury was not present, and Judge Byrne had given reporters permission to fill the jury box.
Ellsberg had on his usual conservative suit, but Russo, as if expecting something special, was sporting a blue shirt with a bright red and white striped tie.
That morning, Judge Byrne had listened to arguments for and against ending the trial. Now, his face flushed, stumbling over his opening sentences, he began to read from a legal pad.
“Commencing on April 26, the government has made an extraordinary series of disclosures regarding the conduct of several governmental agencies regarding the defendants in this case. It is my responsibility to assess the effect of this conduct upon the rights of the defendants.”
Byrne summarized the revelations, including details of the Plumbers’ activities. “We may have been given only a glimpse of what this special unit did regarding this case,” he read, “but what we know is more than disquieting.”
This case, said the judge, raised serious issues, issues he would have liked to present to a jury. But the government’s transgressions could no longer be ignored.
“Bizarre events have incurably infected the prosecution of this case,” Byrne continued.
A rumble of voices came from the spectators’ benches.
“I am of the opinion, in the present status of the case, that the only remedy available—”
The voices grew louder. People stood. A few jumped onto the benches.
“—is that this trial be terminated and the defendants’ motion for dismissal be granted.”
The place erupted in cheers. Daniel Ellsberg reached his arms toward Patricia. She ran into his embrace.
“We did it!” she shouted. “We did it!”
The crowd in the hall shoved the doors open and charged in, everyone clapping and whistling, hugging, and crying. One of Ellsberg’s lawyers pulled out a fat cigar and lit up under the “No Smoking” sign on the wall.
Judge Byrne said, “Thank you very much, gentlemen, for your efforts,” his voice drowned out by the bedlam in the courtroom. He walked out the door behind his bench.
Reporters started calling out questions to Ellsberg—Was he happy with the ruling?
“Yes, yes,” he said, “we’re very happy.”
“There’ll be parties tonight!” Patricia added.
As the prosecutors slipped out, a reporter shouted: “What’s your reaction?”
“No comment,” said one of the government lawyers.
“Is there an appeal possible?”
“No. It’s over. It’s dead.”
The victory celebration started moving toward the doors, carrying the Ellsbergs along in the flow. An even bigger crowd waited outside on the courtroom steps and on the sidewalk below—more supporters, more reporters aiming microphones and cameras.
There was a tremendous roar as the courthouse doors opened. Daniel and Patricia, arm in arm, stepped into the sunlight.
May 11, 1973. Daniel and Patricia Ellsberg outside the federal courthouse in Los Angeles, after charges against Ellsberg were dismissed.