The First Presbyterian Church of Bethlehem concluded its “Hi Neighbors” speakers program May 20 with a presentation by Dr. John Kincaid, recalling his experiences serving on the defense team during the Pentagon Papers trial.

Titled, “The Pentagon Papers and the Ellsberg-Russo Trial (1971-73): The American People as Enemy,” Kincaid’s talk explained the prosecution of Daniel Ellsberg and Anthony J. Russo for leaking the voluminous top-secret history of the Vietnam War to the press.

Kincaid explained the official title of the 47-volume study of origins and course of the war was “United States-Vietnam Relations, 1945-1967.” Commissioned by Secretary of Defense Robert McNamara, around 36 scholars produced what are now popularly known as the “Pentagon Papers.” Ellsberg, a military analyst, was part of that team and Russo, an anti-war activist, assisted with photocopying the pages.

“He had become disenchanted with the war and wanted to know more about how we got into it and how we might resolve the issue,” Kincaid said of McNamara. “When the study was completed they were classified.”

The leaked classified documents revealed the U.S. federal government had systematically lied about the war to the public and Congress for more than two decades.

“Ellsberg did not reveal volumes dealing with diplomatic efforts to end the war or information about codes and coded communications,” noted Kincaid.

Reporter Neil Sheehan published excerpts from photocopies he obtained surreptitiously from Ellsberg in The New York Times on June 13 and 14, 1971, before receiving a court order to “cease publication” from the Nixon administration.

On June 18, the “Washington Post” ran excerpts from copies that Ellsberg had given them until they too received a court order to cease.

Both activists were hit with “unprecedented” charges of conspiracy, espionage and theft. They faced hefty fines and long prison sentences. “The government chose to have the trial in Los Angeles, heartland of the military-industrial complex,” said Kincaid.

Kincaid pointed out that the espionage charges were “also unprecedented because leaking Top Secret information is a regular activity in Washington.” President Lyndon Johnson, McNamara and other officials had taken home volumes of the study when they left office and were never prosecuted.

“The irony of the espionage charge is that the government contended the American people were not entitled to see the Pentagon Papers, thus placing the American people in the position of being an alien power or enemy of the United States,” said Kincaid.

The theft charges were also ironic, as the documents were not in the possession of the government. They were housed at the Rand Corporation by three former officials, two of whom granted Ellsberg permission to access the Pentagon Papers. After photocopying the pages, Ellsberg returned them.

Realizing this, the government shifted its charges to theft of “the arrangement of words on the pages” and “the ideas conveyed by that arrangement,” explained Kincaid. “Government documents carry no copyright because all information produced by a democratic government belongs to the people.”

Judge William Matthew Byrne Jr., declared a mistrial and dismissed all charges on May 11, 1973, on the grounds of “gross governmental misconduct,” including wiretapping, that offended “a sense of justice.”

It was revealed to the judge that on Sept. 3, 1971, Nixon’s infamous “Plumbers,” E. Howard Hunt and G. Gordon Liddy, organized the burglary of the Beverly Hills office of Ellsberg’s psychiatrist, seeking damaging evidence on the defendant to leak to the media.

The “Plumbers” also recruited several Miami Cubans to attack Ellsberg at an anti-war rally, missing him, but they assaulted others nearby.

Judge Byrne was approached by John Ehrlichman, Richard Kleindienst and President Richard Nixon with the possibility of replacing the late J. Edgar Hoover as FBI director.

All of this left the judge “clearly angry and exasperated,” said Kincaid, leading to his decision.

“The conclusion was there was no conclusion,” said Kincaid regarding the court addressing the issues of the legality of the charges aimed at the defendants.

“They are still hanging out there,” he said. The key to the government’s “novel” use of Section 793(e) of the Espionage Act against the pair of activists was the first time this law was used to prosecute someone for allegedly possessing classified documents.

Since then, many “leakers” have been prosecuted under Section 793(e).

“Today, 32 of the charges against Trump in his Mar-a-Lago case are for violating Section 793(e) of the Espionage Act,” said Kincaid, noting that former Vice President Mike Pence and President Joe Biden had retained a few classified documents, but there was not enough evidence they had taken them “willfully,” and the documents were promptly returned to the archives.

Trump, on the other hand, “not only refused to return classified documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it,” said Kincaid regarding the former president’s alleged behavior.

Russo died in 2008 at age 71 and Ellsberg was 91 when he passed away in 2023.

Kincaid’s role as director of the Phoenix Peace Center in Arizona led to his joining lead attorneys Leonard Boudin, Charles Nesson and Leonard Weinglass on the Pentagon Papers Trial defense team.

The peace center participated in anti-war demonstrations and invited activists like Tom Hayden and Jane Fonda for speaking engagements. While Ellsberg declined an invitation, Russo accepted and while staying at Kincaid’s home in April 1972, asked him to help with his defense.

Professor Kincaid is now director of the Robert B. and Helen S. Meyner Center for the Study of State and Local Government at Lafayette College, Easton.

Open to all, this was the last program of the spring series of presentations hosted by First Presbyterian Church of Bethlehem, 2344 Center St., Bethlehem. The speaker program will start up again in September. For information: info@fpc-bethlehem.org