An interesting character in American law, crusty Dean Griswold defended constitutional rights, fought McCarthyism, served as an expert witness for NAACP lawyer Thurgood Marshall in civil rights cases, worked to admit women into Harvard Law School, admitted Ruth Bader Ginsburg, as portrayed by Sam Waterston in the 2018 movie, On the Basis of Sex.
Upon Thurgood Marshall's confirmation to the U.S. Supreme Court, Dean Griswold retired from HLS after 21 years as Dean and succeeded Thurgood Marshall as Solicitor General of the United States, arguing cases in front of the United States Supreme Court.
In cinema, but NOT in real life, the energetic RBG supposedly triumphantly bested straw men villains, including SG Erwin Griswold's supposedly oleaginous sexist, misogynist minions, in sex discrimination cases, as portrayed in the movie, On The Basis of Sex. The screenwriter's depiction of Dean Griswold as SG is, at best, inaccurate, if not defamatory, and the movie's many deviations from the truth were explained in Smithsonian.
Then a Professor, RBG's first sex discrimination case involved discrimination against a man, in Moritz v. Commissioner, Internal Revenue Service, 469 F.2d 466 (10th Cir. 1972), cert. denied, 412 U.S. 906 (1973), a decision that was written by Tenth Circuit Court of Appeals Judge William Judson Holloway Jr., the mentor of my law school mentor, the amazing Robert C. Banks, Jr., who clerked for him during this time period,
Footnote: I never was properly introduced to Dean Erwin Griswold, but I sat near him at several sessions of the august American Bar Association House of Delegates in its semiannual meetings from 1988-1993. (It was during the time when the House was debating several of the resolutions that my mentor, House of Delegates member and USDOL Chief Judge Nahum Litt and I were advancing, every single one of them successful, on independence of administrative law judges, Gay rights, whistleblower rights and rights of security clearance holders to fair hearings, including 3.5 million employees and numerous defense contractors holding facility security clearances. We won every single one of our four ABA House of Delegates resolutions, for a batting average of 1.000.)
SECRETS NOT WORTH KEEPING
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Erwin Griswold was identified on Wednesday's op-ed page as the former dean of the Yale Law School -- a monumental error that was called to The Post's attention early and often in the course of the day. He was, of course, for many years dean of the Harvard Law School. (Published 2/16/89)
It may be relevant at this time to recount some details of events which attracted widespread attention several years ago. The occasion was the presentation of the Pentagon Papers case (New York Times v. United States and United States v. Washington Post) before the United States Supreme Court, and the year was 1971.
At that time, I held the office of solicitor general of the United States. The government then in office, under the presidency of Richard Nixon, was determined to do everything in its power to prevent the press from publishing some 47 volumes of mimeographed papers preserved primarily in the Office of the Secretary of Defense in the Pentagon, and thus known as the Pentagon Papers.
These papers were in toto classified as Top Secret. We know now that one of the reasons for President Nixon's concern was that, at that very time, Henry Kissinger was en route to China, and there was fear that these negotiations would be frustrated if the Chinese came to believe that we could not keep secrets involved in the dealings between the two countries.
It was my responsibility to represent the interests of the United States before the Supreme Court. Everything happened very fast. The U.S. Court of Appeals for the District of Columbia decided the case on Thursday, June 24, 1971. On Friday, at noon, I was advised by Chief Justice Warren Burger that the case would be heard by the Supreme Court on Saturday morning, June 26, and that "briefs will be exchanged between the parties in the courtroom immediately before the argument."
At that time, no briefs had been written, and, indeed, I had never seen the outside of the Pentagon Papers. I immediately arranged for a set of the papers to be brought to my office. It was obvious that I could not read all of the materials in the time available. In this situation, I arranged to have three high officials, one each from the Defense Department, the State Department and the National Security Agency come to my office. I asked them to tell me what items in the 47 volumes were really bad -- what items, if disclosed, would be a real threat to the security of the United States. This produced a total of about 40 items over which these officers expressed concern.
I then read each of these items, but quickly came to the conclusion that most of them presented no serious threat to national security, and that there was simply no prospect that the Supreme Court would ban the publication of all of these items. Eventually, I reduced the list to a total of 11 items. My deputy, Daniel M. Friedman, wrote the main or "open" brief for the United States, while I wrote the "secret" brief, contending that these 11 items presented a threat to the national security. That task kept me up most of the night.
At about 8:30 on Saturday morning, I telephoned Attorney General John M. Mitchell. I advised him that I was waiving objections to the printing of most of the documents in the Pentagon Papers and was relying on only 11 items. "This is an important matter," I said, "and I think I should have your approval." I can still hear his voice when he replied, "Well, Dean, I don't see how I can approve that." My heart sank, for the argument before the court was only about an hour away. There was a pause. Then Mr. Mitchell said, "You know, I have never seen these papers. I don't know what is in them. I don't see how I can approve your plan." There was a further pause, and then he said: "But you are in charge of the case, and if you think that is the way it should be handled, you have my complete support."
So, I went ahead and presented the case before the court, relying only on the 11 items. As is well known, we lost, by a six-to-three vote, with three members of the majority saying there could never be a prior restraint, while three others said that a prior restraint would be appropriate in a proper case, but that there was no adequate threat to national security in this case. Accordingly, the newspapers printed many items from the Pentagon Papers. And within a few weeks, under the auspices of Sen. Mike Gravel of Alaska, the entire contents of all the papers were printed.
I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat. Sen. Gravel's edition is now almost completely forgotten, and I doubt if there is more than a handful of persons who have ever undertaken to examine the Pentagon Papers in any detail -- either with respect to national security or with respect to the policies of the country relating to Vietnam. It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.
There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past. This is the lesson of the Pentagon Papers experience, and it may be relevant now.
At that time, I held the office of solicitor general of the United States. The government then in office, under the presidency of Richard Nixon, was determined to do everything in its power to prevent the press from publishing some 47 volumes of mimeographed papers preserved primarily in the Office of the Secretary of Defense in the Pentagon, and thus known as the Pentagon Papers.
These papers were in toto classified as Top Secret. We know now that one of the reasons for President Nixon's concern was that, at that very time, Henry Kissinger was en route to China, and there was fear that these negotiations would be frustrated if the Chinese came to believe that we could not keep secrets involved in the dealings between the two countries.
It was my responsibility to represent the interests of the United States before the Supreme Court. Everything happened very fast. The U.S. Court of Appeals for the District of Columbia decided the case on Thursday, June 24, 1971. On Friday, at noon, I was advised by Chief Justice Warren Burger that the case would be heard by the Supreme Court on Saturday morning, June 26, and that "briefs will be exchanged between the parties in the courtroom immediately before the argument."
At that time, no briefs had been written, and, indeed, I had never seen the outside of the Pentagon Papers. I immediately arranged for a set of the papers to be brought to my office. It was obvious that I could not read all of the materials in the time available. In this situation, I arranged to have three high officials, one each from the Defense Department, the State Department and the National Security Agency come to my office. I asked them to tell me what items in the 47 volumes were really bad -- what items, if disclosed, would be a real threat to the security of the United States. This produced a total of about 40 items over which these officers expressed concern.
I then read each of these items, but quickly came to the conclusion that most of them presented no serious threat to national security, and that there was simply no prospect that the Supreme Court would ban the publication of all of these items. Eventually, I reduced the list to a total of 11 items. My deputy, Daniel M. Friedman, wrote the main or "open" brief for the United States, while I wrote the "secret" brief, contending that these 11 items presented a threat to the national security. That task kept me up most of the night.
At about 8:30 on Saturday morning, I telephoned Attorney General John M. Mitchell. I advised him that I was waiving objections to the printing of most of the documents in the Pentagon Papers and was relying on only 11 items. "This is an important matter," I said, "and I think I should have your approval." I can still hear his voice when he replied, "Well, Dean, I don't see how I can approve that." My heart sank, for the argument before the court was only about an hour away. There was a pause. Then Mr. Mitchell said, "You know, I have never seen these papers. I don't know what is in them. I don't see how I can approve your plan." There was a further pause, and then he said: "But you are in charge of the case, and if you think that is the way it should be handled, you have my complete support."
So, I went ahead and presented the case before the court, relying only on the 11 items. As is well known, we lost, by a six-to-three vote, with three members of the majority saying there could never be a prior restraint, while three others said that a prior restraint would be appropriate in a proper case, but that there was no adequate threat to national security in this case. Accordingly, the newspapers printed many items from the Pentagon Papers. And within a few weeks, under the auspices of Sen. Mike Gravel of Alaska, the entire contents of all the papers were printed.
I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat. Sen. Gravel's edition is now almost completely forgotten, and I doubt if there is more than a handful of persons who have ever undertaken to examine the Pentagon Papers in any detail -- either with respect to national security or with respect to the policies of the country relating to Vietnam. It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.
There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past. This is the lesson of the Pentagon Papers experience, and it may be relevant now.
The writer, now a Washington lawyer, is a former dean of the Yale Law School and was solicitor general in the Nixon administration.
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