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Former New York Times General Counsel James Goodale on “Fighting for the Press” from Nixon to Trump

Web ExclusiveJune 18, 2019
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Web-only conversation with James Goodale, former general counsel of The New York Times. In 1971, he urged the paper to publish the Pentagon Papers, which had been leaked by whistleblower Daniel Ellsberg.

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: A London judge has ordered WikiLeaks founder Julian Assange to appear before a court next year to face a full extradition hearing. Prosecutors in the U.S. have indicted Assange on 18 counts, including 17 violations of the Espionage Act, in the first-ever case of a journalist or publisher being indicted under the World War I-era law. Assange said his life was, quote, “effectively at stake” if the U.K. honors a U.S. request for his extradition.

AMY GOODMAN: To talk more about Julian Assange’s case and also the history of the Pentagon Papers, we continue our conversation with James Goodale. He’s the former general counsel of The New York Times. In 1971, he urged the paper to publish the Pentagon Papers, which had been leaked by the whistleblower Dan Ellsberg. Jim Goodale is the author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.

In Part 1 of our discussion, Jim, we talked about Julian Assange and the precedent set by the Pentagon Papers. But especially for young people, I don’t think it’s really clear what the Pentagon Papers case was about and the showdown between The New York Times and President Nixon. Again, this is right before Nixon wins a landslide victory, but he tried to shut down the paper’s possibility of publishing this history of the U.S. involvement in the Vietnam War.

JAMES GOODALE: OK. So, The New York Times had this history, which had been prepared by the State Department, by Defense Secretary Robert McNamara, who was a very intelligent man, that he wanted the study to be there as a lesson from history: “Don’t do Vietnam again,” basically, is what he said. It was prepared by a group of Ph.D. historians. And it came into The New York Times’ hands.

And what the Pentagon Papers case was about was the effort by the United States government to stop the publication of a summary of that history. Plain, old censorship. Government wanted to stop the publication, censor The New York Times. And the government succeeded in doing that for several days. And what the case was about was the Times making an argument before the Supreme Court saying what the government had done, censoring the press, violated the First Amendment. It was an absolutely fundamental tenet, it was argued, that the First Amendment protects against this type of censorship. And so that’s what the case was about.

And the Times won it with a 6-to-3 vote. And since you referred to my book, I say in the book that this is a case for the ages. It will never be overruled, because it’s a fundamental part of the First Amendment. You can’t be stopped from publication. In Julian Assange’s case, he didn’t get stopped, either. And we’re talking about what happens after you publish. But Pentagon Papers is before you publish.

JUAN GONZÁLEZ: Now, you mentioned in our first segment that you had already been engaged in battles with the Nixon administration before the Pentagon Papers case broke. I’m wondering if you could talk about some of that earlier history—


JUAN GONZÁLEZ: —especially the Earl Caldwell case, which you were involved in, as well, but others that come to mind.

JAMES GOODALE: Well, what happened in 1968—it was a long time ago, wasn’t it?—when Nixon was elected, is he began a war against the press, that was much greater, in my view, than the war today that Trump is waging against the press. He, Nixon, had a vice president whose name was Agnew. And Agnew was the attack dog. He spent all his time of the first two or three years of Nixon’s presidency, before he was forced to resign, by the way, attacking the press. OK? So that was the atmosphere.

During that period of time, a couple years after he, Nixon, was elected, his Justice Department asked a New York Times reporter, who happened to be black, to give up his sources, give up his information, with respect to reporting that he—his name was Earl Caldwell—had done on the Black Panthers. And he, Caldwell, did not want to do it. He claimed the First Amendment protected his right not to disclose that information. His situation drew imitators. And there were two other people who were in the same situation. All three went to the Supreme Court. And, broadly speaking, all three lost.

I figured a way around it, and we still have a privilege for reporters, not the way it was before Nixon was in place. So, all of this is part of the struggle of the press against Nixon. And that culminates at the end, more or less, of Nixon’s first term in 1971. So, the way to think of the Pentagon Papers is it’s part of a history of resistance to Nixon.

AMY GOODMAN: So, you talked about the outside counsel for The New York Times—you were its general counsel—was the former attorney general of the United States under Eisenhower, Brownell, and he refused to take this court to defend the Times and moving forward with the publication of the Pentagon Papers. So, you, within an hour and half—you had your court date that day, just later in the day—put together a team that had—you had come to work with around these earlier cases, and went into court and actually won. And The New York Times would go down in history publishing the Pentagon Papers. We interviewed Dan Ellsberg, and he talked about, even to this day, The New York Times doesn’t actually directly say he was the whistleblower in this case, even though he personally has continually said it.

JAMES GOODALE: Well, I mean, I’m laughing because one thing you’re never told by newspeople when they have a source, who is an undisclosed, important source, who that source is. So, I will tell you, sitting here today, no one has ever told me that Daniel Ellsberg is the source. And so—

AMY GOODMAN: What about Ellsberg himself?

JAMES GOODALE: Ellsberg himself says he’s the source. I mean, so, there’s no—

AMY GOODMAN: Have you ever asked him?

JAMES GOODALE: No. It’s sort of funny. I’ve had him on the phone many times, assuming he was, but I never asked him in so many words. So, Dan feels, you know, sort of left out, because he—

AMY GOODMAN: Slighted by the Times.

JAMES GOODALE: Slighted, yeah.

AMY GOODMAN: They get the credit, and they won’t say he’s actually the source.

JAMES GOODALE: Yeah. He had done all—he took all this risk, and the Times won’t even acknowledge it. But it isn’t meant to be rude. It’s just part of the tradition.

AMY GOODMAN: So, what about the parallels? I mean, Nixon, as you said, very seriously at that time was going after the press. When it comes to Donald Trump, I mean, almost immediately he is going after all of the press, talking about it as the “enemy of the people.” President Trump lashed out at the Times most recently—probably did it since then, but on Saturday, when they published their piece saying the U.S. is ramping up cyber intrusions into Russia’s electric power grid. Trump tweeted The New York Times report is a “virtual act of treason.” So, where might that go?

JAMES GOODALE: Well, we’ve got a couple things here with Donald Trump. One is what he tweets, and what—secondly, what does he do? Up to this moment, that is to say, before the indictment of Julian Assange, he really has been a lot of talk and no action. And I’m not sure how many people actually pay that much attention—well, some do, 42% do—to Donald Trump. But he’s over there talking. Fine. And so far, at least up to Assange, it hasn’t been too bad in the courts. And I would say it was worse under Nixon.

But now that he’s brought this case, effectively, because it’s his attorney general, he’s creeping right up there and maybe tied with Nixon. If he wins the case, he’ll go ahead. But I think it’s fair to say we haven’t had a lot of reporters in jail. No, we haven’t had that many cases of sources going to jail. We had some. So, it’s a lot—

AMY GOODMAN: I mean, interestingly, you have Jim Risen—


AMY GOODMAN: —who left The New York Times, who wasn’t being persecuted by the Trump administration as much as by the Obama administration. He thought the Obama administration would drop this case against him, but in fact it didn’t, which started under President Bush.

JAMES GOODALE: Well, Obama is not so great in all of this, I’m sorry to tell you. He, his Justice Department, tried to get James Risen to give up a source. And Risen said he wasn’t going to do it. And so, the government said—Obama’s—”You’re going to jail.” He said, “Go ahead. Put me in jail.” And he faked them out; they never put him in jail. But the point is that Obama was putting a lot of pressure, effectively, on people like Risen and others. They put a lot of people in jail, a lot of sources.

JUAN GONZÁLEZ: I wanted to ask you about the importance of press solidarity, because, clearly, in the Pentagon case, in the Pentagon Papers case, after The New York Times published, so did several other major newspapers across the country. And so then it became a case, not just was the government going to go after the Times, was it going to go after the press in general. And—

AMY GOODMAN: The Washington Post and others, right?

JUAN GONZÁLEZ: The Washington Post and others. But what about today, in terms of the importance of press solidarity around the case of Julian Assange?

JAMES GOODALE: It’s very important to have press solidarity. We do not have press solidarity. When I wrote that book, the book was a warning this case—I predicted this very case was going to happen in the book. And when I tried to explain it to journalists, they got so angry at me that they would have to waste their time to support Julian Assange, that it really sort of made me as angry as my book made them. It’s important to have solidarity, because you want to have public opinion totally behind Assange when he goes to trial. That should not be relevant to what happens in the courtroom, but, between you and me, it is.

AMY GOODMAN: Does The New York Times—do you feel it has come out in—

JAMES GOODALE: New York Times has been very slow to come out to support Assange, as indeed many other papers have been slow to support. It did write a pretty good editorial at the time of his indictment. I think the press is beginning to see that we’re not just talking about somebody who fakes people out saying he’s a journalist, says he’s a rapist, but actually is raising important First Amendment questions that apply to journalists. I think that’s beginning to happen.

AMY GOODMAN: Can you go back even further than Nixon to talk about another big case you were involved with, The New York Times v. Sullivan, ’64?

JAMES GOODALE: New York Times v. Sullivan is a famous case because it changed the law of libel and made the libel law much more difficult to apply to public figures and public officials, who say all sorts of crazy things, like Trump does, by the way, about their opponents or about this and about that. Before the Sullivan case, the law favored people who wanted to sue those who were making such statements. And this was happening in the South. This is at the time of the civil rights movement, where The New York Times, Northern papers were covering what was going on in the South. And the South, if I can call it that, came up with a solution to deal with the bad stories: They would sue. So, there were all sorts of politicians in the South who sued media companies. Sullivan sued The New York Times. That case went to the Supreme Court.

AMY GOODMAN: And Sullivan was?

JAMES GOODALE: Well, it’s hard to remember. L.B. Sullivan was the county commissioner of—I don’t know, whatever county it was, in Alabama. I mean, no one ever heard of him. Well, they’ve heard of him now. And so, what the Supreme Court did, it says, “You can’t have that kind of suits.” And it was a nine-nothing decision. So, change the law. You’re not going to try to win the civil rights movement in the courts. That’s what it really was about.

AMY GOODMAN: And it looks like Trump is trying—would like to see the libel laws changed. He tweeted last year, “Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost. Don’t know why Washington politicians don’t change libel laws?”

JAMES GOODALE: Well, it’s sort of a typical Trump statement. It always has a slight element of truth in it. But then you examine it, and you see it’s a lot of baloney, because he can’t change the libel laws. The Legislature can’t change the libel laws. The libel laws were made, effectively, in the Sullivan case by the Supreme Court. So only the Supreme Court can change the laws. And it doesn’t look like they will.

AMY GOODMAN: Finally, Jim Goodale, for years you were the head of the—chair of the board of the Committee to Protect Journalists, which deals with journalists around the world. You have a series of deaths, murders of journalists in Mexico right now. Journalists are being imprisoned in Turkey at record numbers. In the Philippines, journalists are under threat by the authoritarian President Duterte. Maria Ressa of the Philippines said to us recently that, you know, she has seen whiffs of this here in the United States, and that when President Trump says the press is the enemy of the people, that reverberates throughout the world, has an enormous chilling effect. Can you talk about the global picture for journalists today?

JAMES GOODALE: Well, I think the global picture is as bad as I’ve ever seen it. I was chairman of the Committee to Protect Journalists for five years. And we had a terrible time interesting the U.S. press in what was going on, because not that much was going on. It’s become much worse, and it requires much more protection from the press in this country and the press elsewhere. I’m not sure what the cause is. If I were to guess, I would think we’re in the middle of a huge revolution in which the press and communication plays a part, and so that brings all speech up to a point where it can be subject to being penalized. And I’m not optimistic in the short term this is going to get any better.

AMY GOODMAN: Well, we want to thank you so much for being with us, James Goodale, former vice president and general counsel for The New York Times, author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.

To see Part 1 of our discussion, go to I’m Amy Goodman, with Juan González. Thanks so much for joining us.

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