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,[12] 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.[12]
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 for Ellsberg and 35 years for Russo. Their trial commenced in Los Angeles on January 3, 1973, presided over by U.S. District Judge William Matthew Byrne Jr. Ellsberg tried to claim that the documents were "illegally" classified to keep them not from an enemy, but from the American public. However, that argument was ruled "irrelevant", and Ellsberg was silenced before he could begin. In a 2014 interview, Ellsberg stated that his "lawyer, exasperated, said he 'had never heard of a case where a defendant was not permitted to tell the jury why he did what he did.' The judge responded: 'Well, you're hearing one now'. And so it has been with every subsequent whistleblower under indictment".[44]
In spite of being effectively denied a defense, Ellsberg began to see events turn in his favor when the break-in of Fielding's office was revealed to Judge Byrne in a memo on April 26; Byrne ordered that it be shared with the defense.[45][46]
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.[47] 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.[46]
Artist David Rose's rendering of attorneys during the 1973 trial of Ellsberg and Russo in Los AngelesBecause of 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."[46]
As a result of the revelations involving the Watergate scandal, 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 Watergate. Egil Krogh later pleaded guilty to conspiracy, and White House counsel Charles Colson pleaded no contest for obstruction of justice in the burglary.[48]
Halperin case
It was also revealed in 1973, during Ellsberg's trial, that the telephone calls of Morton Halperin, a member of the U.S. National Security Council staff suspected of leaking information about the secret U.S. bombing of Cambodia to The New York Times, were being recorded by the FBI at the request of Henry Kissinger to J. Edgar Hoover.[49]
Halperin and his family sued several federal officials, claiming the wiretap violated their Fourth Amendment rights and Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The court agreed that Richard Nixon, John Mitchell, and H. R. Haldeman had violated the Halperins' Fourth Amendment rights and awarded them $1 in nominal damages.[50]
Plumbers' Ellsberg neutralization proposal
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 "totally incapacitate" Ellsberg when he appeared at a public rally. It is unclear whether they were meant to assassinate Ellsberg or merely to hospitalize him.[51][52] 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 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."[53]
