(3 of 3)
"No investigation is likely to provide satisfactory answers," he said, "where improper Government conduct has been shielded so long from public view"—and where the files are missing or have been destroyed. "It is the defendants' rights and the effects on this case that are paramount," Byrne declared, "and each passing day indicates that the investigation is further from completion as the jury waits."
The charges against Ellsberg and Russo raised "serious factual and legal issues," and Byrne said he would have liked these to go the full course—meaning a jury verdict and possibly appeals to higher courts. But, he concluded, "the conduct of the Government precludes the fair, dispassionate resolution of these issues by a jury. The totality of the circumstances of this case offends a 'sense of justice.' " Hence he ordered a mistrial and dismissed the indictments.
One of the few precedent cases that Byrne could cite was one that reached the Supreme Court in 1952, in which Justice Felix Frankfurter established the doctrine of dismissal if Government action "shocks the conscience of civilized men." Byrne, a civilized man, was plainly shocked.
When the courtroom applause died, there remained the unresolved questions about the legality of the Government's charges—and of Ellsberg's actions in taking and releasing the documents. In the corridors, an ugly suspicion was voiced by defense counsel: perhaps the Administration had deliberately flunked its last assignment from Byrne, about the Halperin wiretap, because it was being increasingly embarrassed by the disclosures that Byrne was forcing. By failing to meet Byrne's demands, the Administration had given him good reason for dismissing the case and had thus forestalled any further investigation that he might order. It had thereby plugged the leaks of Watergate West.
Ellsberg and Russo plan to sue Government officials for $2,000,000 in damages and expenses (their legal costs already total $900,000). For this process, they threaten to subpoena the President himself. In that, they are not likely to succeed, but the Pentagon papers trial, in another guise, may be in the courts and the headlines for months or years to come.