The Burglary (31 page)

Less than an hour later, a spokesperson in Hoover's office was unintentionally very helpful with our most critical need. On the basis of my description, Clawson confirmed that the documents were authentic and were the same ones McGovern and Mitchell had received. Officials were eager to confirm the documents were authentic because they wanted to convince
Post
officials that stories about the files would be dangerous and should not be published.

A short time later, the attorney general, John Mitchell, called
Post
editors—and did so at least twice again later that afternoon—to urge them not to publish stories about the contents of the documents. He first called the national editor,
Ben Bagdikian, and then executive editor
Ben Bradlee. Mitchell, who in 1975 would become the first attorney general to be convicted of a crime and serve time in prison—for approving funding of another historic burglary, the 1972 burglary of Democratic campaign headquarters at the Watergate complex in Washington—insisted that disclosure of the contents of the files from the Media FBI office would endanger national security and reveal national defense secrets. He made the same claims in a final call that day to publisher
Katharine Graham.

Apparently assuming the
Post
was about to publish a story about the files, late that afternoon Mitchell issued a public statement urging anyone with copies of the stolen FBI files not to circulate or publish them. His statement received widespread coverage that evening, beginning at 6:45, when it was distributed by the wire services:

Actually, when the attorney general issued his strong plea, he did not know if his claims were true. He had neither read the documents nor been briefed on them.

A memo Mitchell sent to Hoover the day he tried to stop stories about the stolen files suggests the attorney general did not even know until that day that an FBI office had been burglarized—despite the fact that the burglary had preoccupied FBI officials since the day it occurred two weeks earlier. Either in an effort to conceal the burglary even from Hoover's superior, the attorney general, or as a result of the bureau's single-minded, frenzied effort to find the burglars and prevent the documents from becoming public, FBI officials had not informed high Department of Justice officials that the burglary had occurred two weeks earlier. They had conferred with lower-level department officials in an effort to get support for seeking a judicial order to criminalize possessing or publishing the files but had not informed high-level officials. In the attorney general's memo to Hoover, he wrote, “According to press reports, numerous FBI documents were stolen in the burglary of the Media, PA, FBI office.…I would appreciate your advising me with all possible speed with respect to the nature and content of the documents you have identified as missing.”

The highest-ranking assistant attorney general,
Robert C. Mardian, called FBI associate director William Sullivan that evening after Mitchell had released his public statement and advised Sullivan he “was speaking for the Attorney General, who wanted, in addition to the stolen documents, a justification for information and activities of the FBI insofar as selected documents were concerned, which if published, could be damaging.” It was a strange situation. Hoover had instructed his aides and all FBI officials in the field to make no comment to journalists about the burglary. Now he apparently was relying on the attorney general to comment, but neither Hoover nor his aides had informed Mitchell about the burglary.

In an angry memo sent to Hoover the day after the first
Washington Post
story on the files was published, Mardian—who, as head of the
Internal Security Division of the Department of Justice, was the department official who would supervise plans for prosecuting whatever case might be developed against the burglars—in so many words accused Hoover of having
been duplicitous about his communication with department officials about the burglary:

After noting that a discussion between two FBI officials and department officials about seeking an injunction against public release of the documents took place face-to-face ten days after the burglary, Mardian wrote, “Other contacts were equally ineffectual vehicles to advise the department of the fact of the burglary.”

As Katharine Graham and the
Post
's lawyer struggled with the ethical and legal implications of publishing the secrets revealed in the stolen documents, no one at the
Post
realized the attorney general was bluffing when he repeatedly and forcefully urged the
Post
not to publish. He had used strong language—“could endanger lives”—in those conversations. That he had neither read nor been briefed on the stolen files was not known until exchanges between the Department of Justice and FBI officials, part of the official record of the investigation of the burglary, were made available to me by the FBI years later in response to a Freedom of Information Act request.

It was clear that the stolen files contained no information about national defense and that public knowledge of their contents could not endanger national security. Given the nature of the documents and the unusual way I had received them—stolen FBI files mailed by burglars who had stolen them—we of course carefully considered the ethical and legal issues involved in reporting on their contents. The impact of the attorney general's claims may have been diminished somewhat by the fact that he and other Nixon administration officials often had claimed that stories endangered national security. That threat had become a preferred Nixon administration means of trying to intimidate journalists from reporting information the administration wanted to keep secret. The threat was seldom, if ever, made because the story in question actually endangered national security. Usually it was made because the stories aired deception, wrongdoing, or other secret information the Nixon administration did not want the public to know. To
be fair, the attempt to use vague but threatening national security claims to suppress stories had been used before Nixon was president and has been used since that time by nearly every administration, but the Nixon administration made a habit of using the claim. That left journalists in the difficult position of having to assess, each time the threat was made, whether it was genuine or empty. The possibility that publishing information from the stolen files could endanger lives was the most extreme claim made by Mitchell. After examining the documents carefully, it seemed that claim was a reckless attempt to intimidate and prevent important information from reaching the public.

What seemed likely was that publication of the secrets, in addition to delivering information to the public about the secret policies and actions of one of its most important institutions, would do what the
Post
's legendary editorial cartoonist
Herblock suggested in a cartoon published a couple days later in the newspaper. In the cartoon, two men in rumpled suits who bear a striking resemblance to John Mitchell and J. Edgar Hoover stand side by side in a battered large garbage can. The Mitchell character wears a Keystone Cop hat and the J. Edgar Hoover character wears a Sherlock Holmes hat. Both of them also wear sour expressions. Fish skeletons, empty tin cans, and other debris are falling out of the garbage can, which is marked
FBI FILES
. Mitchell holds a protest sign:
PUBLICATION OF STORIES ABOUT PILFERED FBI DOCUMENTS COULD BE DANGEROUS
. At the top is the caption “And Besides, It Makes Us Look Like Damn Fools.”

The question of whether to publish the stolen files presented Graham with an unprecedented challenge. It was the first time a journalist had been given secret government documents by sources from outside government who had stolen the documents. Throughout history, inside whistleblowers have leaked classified information to journalists, but never had people not employed by the government stolen secret government records and given them to a journalist. Less than two years later, journalist Les Whitten, a colleague of investigative columnist Jack Anderson, would become the second journalist to receive secret government documents from a nongovernment source who had stolen the documents. The documents he received were stolen by activists who temporarily occupied the Washington headquarters of the
Bureau of Indian Affairs. Whitten was arrested by the FBI and charged with possessing stolen government documents, charges that were later dropped.

For
Post
editors, the responsibility to reveal this information to the public far outweighed concern about how it had become available to us—as
the fruit of a burglary. How could we not publish this information? It was important for people to have access to evidence—no matter how we had acquired it—that the FBI, under Hoover's leadership, engaged in practices that had never been reported, probably were unconstitutional, and were counter to the public's understanding of Hoover and the FBI. The publisher did not agree.

This Herblock cartoon was published in the
Washington Post
and other newspapers shortly after the burglary.

As I wrote the story, I did not know that a different rationale was prevailing at the highest level of the newspaper. Throughout the day, as I wrote and called people who were named in the files—some of whom I had known as sources when I worked as a reporter in Philadelphia—top
Post
editors, Graham, and the company's legal counsel debated whether to publish. Not until I submitted the story close to the 6 p.m. deadline did I learn there was a possibility the story would not be published. Graham and the company's legal counsel opposed publication, primarily on the grounds that reporting on secret files that had been stolen had never been done before and was likely to be considered highly questionable ethically and legally. During the debate, Bradlee and Bagdikian continued to make the case that the significance of the information was such that it should be published, no matter who the source was. The debate continued until 10 p.m., when Graham agreed to
publish. It was the first time Graham was confronted with a Nixon administration demand that she suppress a story.

After the decision was made to publish, Bradlee prepared a statement for release:

The story was distributed on the
Post
's wire service shortly after Graham made her decision and was published prominently the next day on the front page of the
Post
.
The same day the
Post
published the first story about the stolen files, the
New York Times
published a story reporting the attorney general's plea that stories not be published about them. The
Times
also reported that a spokesman for Mitchell said he was in “conversations” with the
Washington Post
.