What the Rap Might Be

What the Rap Might Be The threat has been mentioned all along, but last week Government attorneys began the first broad investigation into what criminal charges may result from the publication of the Pentagon papers. A federal grand jury in Boston started hearing evidence on how the documents had been reproduced and distributed, giving specific attention to the roles of the New York Times, the Washington Post and the Boston Globe. Timesman Neil Sheehan, who first obtained the papers, and his wife, were also mentioned. But neither they nor any other newspaper employees had been subpoenaed by week's end, nor had the grand jury filed any charges.

Indeed, for all the activity, it seemed clear that the Government was still unsure of just how various laws apply --largely because no legislation appears to have anticipated the unique circumstances. Most problematic is what criminal activity, if any, can be ascribed to the newspapers involved. "Anyone on the Times, the Post or the Globe is potentially liable to a charge of receiving stolen Government property," says a Government official. The penalty would be ten years and $1,000 fine. (The newspapers themselves would be liable only for the fine.) For the Times and Sheehan there is also the possible additional charge of taking stolen property across state borders since Sheehan is thought to have brought the Times's copies from Boston to New York; the penalty there could be ten years and $10,000 on each count.

Xerox Technicality. But legal scholars point out a serious hitch in any stolen property prosecution. The newspapers received duplicating machine copies rather than the actual Government property. While few doubt that stolen-property legislation could be drafted to include such copies, the fact that they are not now mentioned is likely to make prosecution difficult.

Charging the newspapers with criminal offenses under the Espionage Act holds more promise of success. In fact, during the Government's unavailing effort to block publication, at least four Supreme Court Justices indicated that they might very well uphold a subsequent espionage conviction. The act, among other specifications, bans "unauthorized possession of information relating to the national defense" and failing to give it up to the proper authorities; such information is obviously just as present in a Xerox copy as in the original. In addition, the act outlaws communicating such information to others, which could be taken to include the act of publishing. The penalty is again a maximum of ten years and $10,000.

Though none of the papers has begun preparing a case, they are certain to bolster whatever other lines of defense they raise with the special weight of the First Amendment's free press guarantee. Aware of that extra protection, the Justice Department is far from decided on whether to proceed against the newspapers. "At this stage," said Attorney General John Mitchell last week, "it's a little silly to speculate that they will be indicted."

Ellsberg's Intent. The current Boston grand jury is considerably more likely to indict some of those who aided Daniel Ellsberg. Or it may only gather more evidence for Ellsberg's prosecution. Last week, in a separate action, a Boston federal magistrate delayed ruling on whether Ellsberg could be removed to California, where he worked for the Rand Corp. and where he has already been charged with taking and having unauthorized possession of copies of the

Pentagon papers under the stolen property statute and the Espionage Act. Since even further charges may be brought, Ellsberg's lawyers are trying to prepare for every eventuality. A variety of attacks on the Government case are already taking shape.

One such attack centers on the mention throughout the Espionage Act of the need to prove intent to cause "injury" to the U.S. or give an "advantage" to a foreign nation. The defense plans to argue that Ellsberg's intent was certainly not to damage the U.S. As for theft, the defense will point out that the originals were returned and that Ellsberg retained only copies--a practice followed by many other former officials to aid in the preparation of memoirs or to preserve a personal record of their years in office. Broader arguments are likely to be that the papers were improperly held in a top-secret classification and that they were not currently related to the national defense but were instead historical documents.

Unmade-Up Minds. Such an array of defense possibilities appears to have been unexpected even by Ellsberg. "Until recently I took it for granted that I would go to prison," he says. "Somewhat to my surprise it turns out it's not at all clear that I have violated the law." Though the Government side has a differing view, it too seems less sure about who has committed what. "Nobody's made up his mind yet about who has violated the law," said a Government official last week. Added John Mitchell, smiling slightly: "I think we'll want to sort this one out very carefully."

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